Textbook - VCE Legal Studies Units 34 - Edrolo

VCE LEGAL STUDIES
Units 3 & 4
This document is intended for Caitlin Thomps on at As s umption College (us er ID: 2412499). Unauthoris ed circulation in any form is not permitted.
VCE LEGAL STUDIES
Units 3 & 4
Kristen Cann, Anna Walsh, Callista Nguyen, Natalia Oberoi-Kearney,

Romy Rendigs, Otto Sargent, Gianluca Cammarata, Hayley Di Stefano
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National Library of Australia Cataloguing-in-Publication data
TITLE: Edrolo VCE Legal Studies Units 3 & 4

CREATOR: Edrolo et al.
ISBN: 978-1-922901-22-4
TARGET AUDIENCE: For secondary school age.
SUBJECTS: Legal Studies--Study and teaching (Secondary)--Victoria
Legal Studies--Victoria--Textbooks.
Legal Studies--Theory, exercises, etc.
OTHER CONTRIBUTORS: Cassandra Holford, Sarah O’Sullivan, Jacinta Marlborough, Toni Furolo, Layla Speed, Alice Deighton,
AJ Williams-Tchen, Emily Condon, Alex Gorbatov, Nadia De Fazio, Caleb Bridge, Alfonso Zampogna
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Contents
FEATURES OF THIS BOOK VI
WHERE TO GET HELP VIII
AN INTRODUCTION TO LEGAL STUDIES X
APPROACHING EXAM-STYLE QUESTIONS XVIII
Unit 3 – Rights and justice 1

AOS 1 – The Victorian criminal justice system 2
Chapter 1: Key concepts of the Victorian criminal justice system 3
1A Key principles of the criminal justice system 4

1B Rights of an accused 11
1C Rights of victims 20
Chapter 2: The principles of justice during a criminal case 29
2A The principles of justice during a criminal case 30

2B Victoria Legal Aid and community legal centres 38
2C Plea negotiations 52
2D The Victorian court hierarchy and criminal cases 58
2E Judges, magistrates, and juries in a criminal case 65
2F The parties in a criminal case 75
2G Legal practitioners in a criminal case 82
2H The impact of costs and time – criminal cases 90
2I The impact of cultural differences – criminal cases 101
Chapter 3: Sentencing 111
3A Purposes of sanctions 112

3B Types of sanctions 120
3C Factors considered in sentencing 130
AOS 2 – The Victorian civil justice system 138
Chapter 4: Key concepts of the Victorian civil justice system 139
4A Key principles of the Victorian civil justice system 140

4B Initiating a civil claim 146
Chapter 5: The principles of justice during a civil dispute 153
5A The principles of justice during a civil dispute 154

5B Methods of resolving civil disputes 161
5C The Victorian court hierarchy and civil disputes 173
5D Judges, magistrates, and juries in a civil dispute 180
5E The parties in a civil dispute 191
5F Legal practitioners in a civil dispute 197
5G Class actions 205
5H Consumer Affairs Victoria (CAV) 211
5I The Victorian Civil and Administrative Tribunal (VCAT) 219
5J Resolving civil disputes in the courts 229
5K The impact of costs and time – civil disputes 237
CONTENTS III
Chapter 6: Remedies 245
6A Damages as a remedy 246

6B Injunctions as a remedy 253
Unit 4 – The people, the law and reform 261

AOS 1 – The people and the law-makers 262
Chapter 7: Parliament and the Australian Constitution 263
7A The Commonwealth Parliament and the Crown in law-making 264

7B The Victorian Parliament and the Crown in law-making 272
7C The division of powers 280
7D Section 109 of the Australian Constitution 286
7E High Court cases and their impact on law-making powers 291
7F Parliament’s ability to make law – the bicameral structure 302
7G Parliament’s ability to make law – international pressures 310
7H Parliament’s ability to make law – representative nature 319
7I The Constitution as a check on parliament – representative government 327
7J The Constitution as a check on parliament – the separation of powers 335
7K The Constitution as a check on parliament – express protection of rights 342
Chapter 8: The Victorian courts and the High Court in law-making 353
8A Statutory interpretation 354

8B The doctrine of precedent 362
8C Courts’ ability to make law – judicial conservatism and activism 369
8D Courts’ ability to make law – costs, time, and the requirement for standing 377
8E The relationship between courts and parliament in law-making 386
AOS 2 – The people and reform 394
Chapter 9: Law reform 395
9A Reasons for law reform 396

9B Influences on law reform 403
9C The role of media in law reform 410
9D The Victorian Law Reform Commission 418
9E Royal Commissions 429
9F Parliamentary committees 441
Chapter 10: Constitutional reform 451
10A Reasons for constitutional reform 452

10B Referendums 462
10C Factors that affect the success of referendums 470
10D The 1967 referendum 480
10E Possible future constitutional reform 491
IV CONTENTS
Answers 505
LEGAL CASE INDEX 621

GLOSSARY 622
ACKNOWLEDGEMENTS 626
CONTENTS V
Back to contents
FEATURES OF THIS BOOK

Edrolo’s VCE Legal Studies Units 3 & 4 textbook has the following features.
Theory
Hooks introduce the Study design dot points provide explicit links Definitions
main themes of the lesson between the content covered in each lesson and the are provided for the
in an engaging way. VCAA curriculum. key terms that are
explicitly included in
1A Key principles of the

criminal justice system
the curriculum.
Other useful terms
are defined to assist
1A THEORY
1. A crime is reported 2. An investigation 3. The offender 4. Less serious offences 5. A series of 6. The end of a case,
is commenced by is charged are prosecuted by the court processes where, if an accused
the police police and more occur, including individual is found
students to develop
serious criminal pre-trial procedures, guilty, the judge
STUDY DESIGN DOT POINTS offences are passed a trial, sentencing, will impose an
STUDY DESIGN DOT POINTS • the distinction between summary offences and indictable offences
on to the Office of
Public Prosecutions
and appeals appropriate sanction
(OPP) for prosecution
their legal vocabulary

• key principles of the criminal justice system, including the burden of proof, the
standard of proof, and the presumption of innocence
• the distinction between summary offences and indictable offences Figure 1 An overview of the processes involved in a criminal case in Victoria
• key principles of the criminal justice system, including the burden of proof,1Athe 1B 1C
and to understand the

Image: Fer Gregory/Shutterstock.com Summary offences 3.1.1.2 KEY TERM
It is day 100 of Legal Studies Survivor and
Summary offences are less severe criminal offences that are generally heard in the Summary offence a minor criminal
the competition is heating up. For the next offence usually heard in the
3.1.1.1 An introduction 3.1.1.4 The burden of proof Magistrates’ Court. Sanctions for summary offences are usually small fines, but can
immunity challenge, competitors must
context of the theory.

to criminal law in criminal law also include short periods of imprisonment. There is no right to a trial by jury for Magistrates’ Court.
identify the key concepts of the criminal
justice system or risk eviction. Will the 3.1.1.2 Summary offences 3.1.1.5 The standard of proof summary offences as they are less serious criminal matters. Most summary offences
1A 1B competitors successfully uncover the core
3.1.1.3
1C
Indictable offences 3.1.1.6
in criminal law
The presumption of innocence
that are committed can be found in the Summary Offences Act 1966 (Vic) and various
LEGISLATION
principles that ensure the efficiency and other statutes. Examples of summary offences include:
effectiveness of the legal system? Or will Summary Offences Act 1966 (Vic)
3.1.1.3.1 Indictable offences • common assault
Image: Fer Gregory/Shutterstock.com this be the end of their time on the island?
heard summarily • disorderly conduct
It is day 100 of Legal Studies Survivor and • driving offences
LESSON LINKS
the competition is heating up. For the next • damage to property.
You will learn more about the
3.1.1.1 An introduction 3.1.1.4USEFULTheTIP burden of proof Lesson introduction Magistrates’ Court, County Court, and
to criminal law in criminal
Remember, the two parties inlaw
a criminal There are various key principles that underpin criminal law, and these ensure DEEP DIVE Supreme Court in 2D The Victorian
court hierarchy and criminal cases.
identify the key concepts of the criminal case are known as the prosecution
and the accused. The prosecution
justice can be achieved. Key principles include the presumption of innocence,
the burden of proof, and the standard of proof. The criminal justice system
Sanctions for speeding You will learn more about sanctions in
justice system or risk eviction. Will the 3.1.1.2 Summary offences 3.1.1.5 The standard of proof
represents the Commonwealth, or a distinguishes between various types of offences and has different processes for In Victoria, individuals who commit a minor offence, such as speeding, will receive 3B Types of sanctions.
in criminal law
state, and is the party pursuing the dealing with each. In order to understand how criminal proceedings are conducted,
an infringement notice requesting them to pay a fine. However, failure to pay for the
competitors successfully uncover the core case against the accused. On the other
hand, the accused is the party being
the fundamental concepts of the criminal justice system must first be known.
infringement notice can lead to more serious consequences, with the final stage leading
to the arrest of the individual and a possible court hearing. Therefore, the fines system
principles that ensure the efficiency and 3.1.1.3 Indictable offences 3.1.1.6 The presumption of innocence
charged with a criminal offence. in Victoria operates in a way that punishes individuals for their offending in an informal LEGAL VOCABULARY
effectiveness of the legal system? Or will An introduction to criminal law 3.1.1.1 manner, like issuing a fine, but may also lead to a more serious court hearing if the Infringement notice a penalty issued
Legislation titles
individual fails to comply. to an offender when they commit
3.1.1.3.1 Indictable offences The Victorian criminal justice system plays an important role in enforcing criminal Adapted from ‘About infringements’ (Fines Victoria, 2023)
an offence, such as speeding, that
this be the end of their time on the island? KEY TERMS warrants a fine.
heard summarily Criminal law an area of law that
law by ensuring individuals who engage in harmful and prohibited conduct face the
appropriate consequences. Criminal law protects society through statute law, such as

are provided to enable
aims to protect society from harm by the Crimes Act 1958 (Vic), and by establishing sanctions for criminal offences, which
defining prohibited behaviours and range from fines to imprisonment.
outlining sanctions for those who
Crimes are acts, or failures to act, that cause harm, by violating a law, and are Indictable offences are more severe criminal offences that are heard by a judge
participate in illegal conduct.
and/or jury in the County or Supreme Court. Sanctions for indictable offences are
students and teachers

Crime an act or omission that violates lawfully punishable. It is important to note that not all immoral behaviour is
considered a crime, even if it causes harm. For example, talking poorly about more severe than those imposed for summary offences, including longer sentences
an existing law, causes harm to an
Lesson introduction individual, or society as a whole, and someone behind their back is not necessarily illegal but it can be considered of imprisonment and larger fines. Unless otherwise stated, all offences in the Crimes LEGISLATION
Act 1958 (Vic) are indictable offences. Examples of indictable offences include:
USEFUL TIP is punishable by law. immoral. However, if someone is actively discriminating against another person
Crimes Act 1958 (Vic)
to refer to the primary

based on their background or personal characteristics, this is considered a crime • murder
LEGAL VOCABULARY
Remember, the two parties in a criminal There are various key principles that underpin criminal law, and these ensure under various Australian anti-discrimination laws. • rape
Key knowledge units

Statute law the body of law that
comprises laws made by parliament,
• kidnapping KEY TERMS
case are known as the prosecution justice can be achieved. Key principles include the presumption
also known as legislation. of innocence,
source of information.
• culpable driving causing death.
Indictable offence a criminal offence
and the accused. The prosecution Sanction a penalty imposed by a court
the burden of proof, and the standard of proof. The criminal justice system that is serious in nature and generally
break down the theory

on an offender when they plead guilty heard by a judge and jury in the County
WANT TO KNOW MORE?
represents the Commonwealth, or a or are found guilty of a crime.
distinguishes between various types of offences and has different processes for In Victoria hundreds of thousands of crimes are committed each year. You can find
or Supreme Court.
out more about the statistics and types of crimes being committed by searching
‘Crimes Statistics Agency - Recorded offences’ and clicking the Crime Statistics Agency
into smaller chunks

case against the accused. On the other (2023) webpage.
charged with a criminal offence.
reflecting
An the key
introduction to criminal law 3.1.1.1
4 Chapter 1: Key ConCepts of the ViCtorian Criminal justiCe system 1a Key prinCiples of the Criminal justiCe system 5
KEY TERMS
elements of the
The Victorian study
criminal justice system plays an important role in enforcing criminal
Criminal law an area of law thatdesign appropriate
dot point. consequences. Criminal law protects society through statute law, such as
participate in illegal conduct. Crimes are acts, or failures to act, that cause harm, by violating a law, and are
an existing law, causes harm to an considered a crime, even if it causes harm. For example, talking poorly about
individual, or society as a whole, and someone behind their back is not necessarily illegal but it can be considered
is punishable by law. immoral. However, if someone is actively discriminating against another person
based on their background or personal characteristics, this is considered a crime
LEGAL VOCABULARY under various Australian anti-discrimination laws.
also known as legislation. Deep dives provide in-depth information about a concept from the Real-world examples provide context for understanding
Sanction a penalty imposed by a court
on an offender when they plead guilty course, which may go beyond the scope of the curriculum to provide legal principles, processes and institutions.
or are found guilty of a crime.
extension opportunities.
DEEP DIVE REAL WORLD EXAMPLE

4 Chapter 1: Key ConCepts of the ViCtorian Criminal justiCe system Statutory protection of the right to be tried without unreasonable delay CONTENT WARNING This section explores content that is sensitive in nature that relates
1B THEORY
1B THEORY
Section 21(5) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) says: to violence and death.
(5) A person who is arrested or detained on a criminal charge— Woman behind bars over lethal biscuit
(a) must be promptly brought before a court; and In September 2020, Rebecca Payne ground up a sedative drug called Temazepam,
laced biscuit icing with the substance, and fed the biscuit to her husband. Once he fell
(b) has the right to be brought to trial without unreasonable delay; and
unconscious, she wrapped his body into a blanket and placed it into a freezer. This act
(c) must be released if paragraph (a) or (b) is not complied with. was brought on by years of abuse Payne had faced at the hands of her husband, with
the woman revealing during the court proceedings that her finances, weight, medical
Hypothetical examples
appointments, and showers were all regulated by her husband at the time.
HYPOTHETICAL SCENARIO Despite pleading not guilty, in May 2023, a jury in the Supreme Court of Victoria found
Payne guilty of murdering her husband. It took the jury two days of deliberation to reach
CONTENT WARNING This section mentions content that is sensitive in nature, Image: Bozena Fulawka/Shutterstock.com
this guilty verdict. As a result of Payne being found guilty, Judge Incerti handed Payne
Explore boxes include

relating to violence.
provide interesting
a sentence of 16 years imprisonment with a non-parole period of 10 years. Figure 2 A woman who killed her husband
by poisoning a biscuit’s icing was sentenced
The thirteen-year search for justice Adapted from ‘Rebecca Payne sentenced to 16 years’ jail for murdering husband with drug-laced biscuits’ (Clark, 2023) to 16 years in prison
In 1995, Harry allegedly assaulted Akilah by punching and strangling him. The Office
of Public Prosecution (OPP) was made aware of the attacks in 1996. However, Akilah
context for theory useful tips, lesson

officially made a statement accusing Harry of these attacks, resulting in a notice being
LEGAL CASE LESSON LINKS
sent to Harry informing him about the accusation in 2009. Harry’s trial began three
years and four months after he was first made aware of the accusations. CONTENT WARNING This section explores content that is sensitive in nature, You learnt about the standard of
Harry argued that his right to be tried without unreasonable delay had been breached. relating to violence. proof, the burden of proof, and
links, and extension

the presumption of innocence in
and add to student

The court agreed with this argument, determining Harry’s right had been breached,
Taylor-Joycey v R [2021] NSWCCA 29 1A Key principles of the criminal
considering:
Facts justice system.
• the relatively straightforward nature of the assaults.
In 2021, a case was brought to the NSW Supreme Court that was attempting to appeal You will learn more about judges’
• the fact the OPP had possessed information and evidence about the assault against
opportunities.
a previous decision. The accused argued that a lack of directions to the jury about his directions in 2E Judges, magistrates,
engagement
Akilah for 13 years before launching an official case against Harry.
right to silence had made his trial unfair. and juries in a criminal case.
The Crown argued that in 2017, Mr Dwyer hit Dylan Taylor-Joycey on the head with a toy
baseball bat outside of a restaurant after Taylor-Joycey had demanded drugs and money
The right to silence 3.1.2.2 from another person earlier that day. Taylor-Joycey then pulled a machete out of his
backpack and cut Mr Dwyer’s arm. Taylor-Joycey claimed his act was in self-defence after
The right to silence ensures the presumption of innocence is upheld as an accused being ‘hit very hard in the back of the head’.
KEY TERM
person’s choice to not speak during questioning or in court cannot be viewed as a After the events at the restaurant, police were called by witnesses. That night, police
Right to silence a common law right sign of guilt. It also helps an accused to avoid accidentally incriminating themself. arrested Taylor-Joycey. He asserted he would exercise his right to silence and did not
that allows a person to remain silent An accused’s right to silence can be exercised at any time prior to and during a trial, reveal any information about the altercation.
when questioned or asked to supply including when: Legal issue
information by a person in authority. In the original trial, the jury returned a guilty verdict for the charge that Taylor-Joycey
• being confronted by law enforcement at the time of an arrest or when being
had intended to cause grievous bodily harm. Taylor-Joycey appealed this decision,
accused of committing an offence.
arguing the jury came to this decision unfairly because the judge had not informed
• in a court of law, meaning an accused can choose to remain silent instead them that Taylor-Joycey’s silence during his first arrest should not unfavourably impact
of defending themselves against the prosecution or answering their questions. the jurors’ decision about his guilt. The accused’s lawyers never requested the judge
Legal cases have a

to make a direction to the jury that they should not interpret Taylor-Joycey’s silence
This right has been developed by the courts, making it a common law principle, as an admission of guilt as he had the right to remain silent.
although legislation has also been created to protect this right. Section 89 of the
Decision
Evidence Act 2008 (Vic) states that no negative inferences should be drawn about
USEFUL TIP
focus on the facts,

The Supreme Court determined the judge was not required to make directions to the
an accused because of their failure or refusal to answer one or more questions. As
To remember the three different rights jury about the right to silence. It was the obligation of the accused’s representatives
the burden of proof lies with the prosecution to establish the accused’s guilt beyond
of an accused covered in the VCE to seek that a direction be made by the judge.
reasonable doubt, an accused can choose to be silent in a criminal trial. By remaining
Legal Studies Study Design, use the Significance
acronym ‘DJs’ to help you recall the silent, they are relying on the prosecution’s case not being strong enough to meet the
issues, decision and

high standard of proof. This case highlights how the right to silence can be exercised when being arrested,
key words of each right; delay, jury,
and emphasises the fact that jurors should not make their decision about whether
and silence.
The Jury Directions Act 2015 (Vic) also allows an accused’s lawyer to request that an accused is guilty based on their silence.
• Right to be tried without a judge makes directions to a jury informing them that the:
significance of a case.
unreasonable Delay
• failure of an accused to give evidence cannot be considered an admission of guilt
• Right to trial by Jury
by the accused. WANT TO KNOW MORE?
• Right to Silence
• failure of an accused to call witnesses cannot be used as evidence against The development of the right to silence as a common law principle dates back to the
the accused. 16th century. You can find out more about the development of the right to silence
by searching ‘History of the Right To Silence laws’ and clicking the Proctor & Associates
There are certain exceptions to the right to silence. For example, the Criminal Solicitors & Barristers (2022) webpage.
Procedure Act 2009 (Vic) sets out that an individual pulled over whilst driving must
provide their driver’s licence, or their name and address, if asked by police.
12 chapteR 1: Key concepts of the VictoRian cRiminal justice system 1B Rights of an accused 13
Want to know more? provide opportunities for students to learn more

about something beyond the scope of the course if they are interested.
VI FEATURES OF THIS BOOK

Back to contents
Questions and Reviews Preparing for exams

Standard exam-style
Question 7
Check your Standard exam-style questions reflect the style of 2-4 mark questions
Describe what an injunction is and outline one of its purposes.
understanding presented in past VCAA VCE exams. Adapted from VCAA 2018 Sample exam Section A Q1b
test if students have Question 8

understood the Extended-response
Describe the purposes of remedies.
fundamental concepts Preparing for exams
Standard exam-style
questions reflect the
Adapted from VCAA 2020 exam Section B Q1e
6B QUESTIONS
within the lesson. 6B Questions Question 7
style of VCAA VCE
(3 MARKS)
6B QUESTIONS
Check your understanding Adapted from VCAA 2018 Sample exam Section A Q1b
Question 1
Injunctions aim to either remedy a past civil breach or prevent a potential civil breach from occurring. Question 8
Question 9 exam questions and are
(2 MARKS)
A. True
Edward plans to build an extension onto his house. If it goes ahead, the extension will
between 5 and 10 marks
B. False
Question 2
14. [Damages would achieve the purpose of remedies to a moderate
Preventing a book from being published is an example of:
Linking to previous learning
Question 9 from Digby’s window, his neighbour. Digby wants to know what he can do about this
Edward plans to build an extension onto his house. If it goes ahead, the extension will block the natural light
(3 MARKS)
from Digby’s window, his neighbour. Digby wants to know what he can do about this situation.
extent as Valerie would likely receive both general and specific

Advise Digby as to the most appropriate civil remedy to seek in this case.
A. a mandatory injunction.
B. exemplary damages.
C. a restrictive injunction.
damages for her injury.1]

Extended response
15. [Class actions refer to legal proceedings broug

D. contemptuous damages.
Use your answer to question 10 to support your response to question 11.
Extended response plaintiffs acting for themselves as well as on be

Question 3
Question 10
Fill in the blank with one of the following terms:
Tick the box to indicate whether the following statements are strengths or limitations of injunctions
[One way the purposes of damages would be achieved is through

court orders sanctions for a plaintiff.
Name: Class: Statements Strength Limitation
of people whoyour
have a claimtowith similar
11. facts. I
Injunctions are compelling a party to do something, or preventing a party from doing something.
Use your answer to question 10 to support response question I. Injunctions prevent the defendant from acting in a way that would further the harm.
specific damages, as they would aim to return Valerie to her original

They aim to either remedy a past civil breach or prevent potential civil breaches from occurring.
II. Injunctions do not account for financial loss.
Unit 1 AOS 1 review
action, damages are likely to be awarded, howe
III. Interlocutory injunctions are only temporary, meaning further legal action may be necessary.
position in terms of her finances, compensating her for herQuestion

medical10
Question 4
IV. The defendant is legally bound by an injunction and legal consequences apply if they do not
Which statement does not describe an interlocutory injunction?
Introduction A. Temporarily restricts the parties from breaching civil rights.
fulfil the terms of the injunction.
Unit 1 Area of Study 1 focuses on the key foundational concepts and principles that are essential to
the operation of laws and the Australian legal system. Notably, the process of making laws in Australia
B.
final or for the plaintiff to be awarded damages.
expenses. This can be calculated exactly and she would likely
They are temporary, meaning that further legal proceedings must take place for the injunction to become
shared
Tick the box to indicate whether theamong
followingthe numerous
statements plaintiffs
are strengths
Question 11 or of the cl
limitation (5 MARKS)
C. Only lasts for a short period of time and is often awarded in urgent circumstances.
there are more questions

than seven plaintiffs in a class a
involves various institutions, such as parliament and the courts. These bodies have a responsibility to Discuss the ability of injunctions to achieve their purpose.
for a plaintiff.
Scaffolding
D. Forces a party to start or complete an action to prevent further harm to the plaintiff.
be able to recoup these funds and return to her original financial

ensure that laws are effective in promoting society’s views and values. You have also learnt about the
role of individuals, laws, and the legal system in achieving social cohesion and protecting the rights of Linking to previous learning
individuals. Moreover, this area of study covered the Victorian court hierarchy as well as the reasons Question 5
for its existence. The areas of criminal and civil law were also introduced alongside the principles of Fill in the blank with one of the following terms:
justice, as means to evaluate the effectiveness of various bodies, concepts, and laws in delivering Mandatory Restrictive Interlocutory Final
position before the injury occurred.2] Statements paid by thethe
provide defendant
contentmust andbe shared by all the
Question 12
The purpose of sanctions is to restore the plaintiff to their original position and punish the defendant.
Injunctions fulfil this purpose as they force a party to do something such as pay money or write an apology.
(6 MARKS)
justice to the community. The questions in this AOS review will be suitable practice for School
Injunctions prevent[the
Damages fulfil this purpose as they financially compensate the plaintiff, however, they cannot compensate
Assessed Coursework and exams. injunctions prevent the defendant from acting in a way that would further the harm, for a specified
I. This
phrasingmeanssupport
defendant thatacting
from eachto
inindividual plaintiff may
for pain and suffering.
a way that would further the n
h
[A second way that specific damages could achieve the purpose
time frame only. Identify three errors in the statement and, for each error, explain the correct civil process or procedure that
Summary should have occurred.
financial compensation to restore them to their

better forenable students
Adapted from VCAA 2020 exam Section A Q5
II. Injunctions do not account financial loss.

Question 6
of remedies is by accounting for lost wages. Valerie will be

Tick the box to indicate whether each of the following statements refers to damages or injunctions.
position, thus failing to achieve the main purpo

Use your answer to questions 15 and 16 to support your response to question 17.
Statements Damages Injunctions
to approach extended-
Question 13
compensated for the time she spent out of work while she was III. Interlocutory injunctions are only temporary, meaning further legal action may
I. Prevents the defendant from acting in a way that would further the harm.
Tick the box to indicate whether the following statements are strengths or limitations of civil remedies in
[ For example, in a class action where many pla

II. An award of monetary compensation to the plaintiff. achieving their purposes.
response questions.
III. Can be mandatory or restrictive.
IV. Can be compensatory or nominal.

recovering. Furthermore, since she can no longer coach, theIV.time The defendant is legally bound by an injunction and legal consequences apply
financial losses due to large medical expenses, 6B InjunctIons as a remedy 259
258 chapter 6: remedIes

she spent searching for new work may be compensated as well.fulfil 3
] the terms of thenotinjunction.
be enough to sufficiently cover these medic
[A third way Valerie could be returned to her original position before each plaintiff to cover some of these costs them
the civil wrong was committed is through general damages. These 11
Question
‘Linking to previous learning’ questions promote continuous revision and
would aim to compensate for the pain and suffering she endured
Discuss the ability of injunctions to achieve their purpose.
I have identified
encourage students to see the relationships between concepts and topics.the relationship be
Section A
Question 1
Define social cohesion.
(1 MARK)
from the fall while in hospital, as well as the subsequent depression and damages.1
Question 2
Explain how common law is developed.
(3 MARKS)
she has endured. As Valerie can no longer walk, this wouldLinking
also to previous learning
Question 3
Distinguish between the standard of proof in criminal and civil law.
(3 MARKS)
be taken into account when deciding the amount of damages. 4
] 12
Question I have provided one way class actio
VCE Legal Studies Units 1&2 1 Reviews
[However,are
thefound online
pain and andincurred
suffering replicate
by the The purpose of sanctions is to restore theofplaintiff
Valerie can only damages tooriginal
to their achieve theirand
position purpos
punish
Injunctions fulfil this purpose as they force a party to do something such as pay mone
common formatpartially
be compensated and length of School
as money cannotAssessed
reverse what she has
Damages fulfil this purpose as they financially
I havecompensate
providedthe plaintiff, however,
information about they
m
Coursework
endured and (SAC)
pain andtasks andcannot
suffering end-of-unit exams.
be quantified into aforprecise,
pain and suffering.
actions affect the ability of damage
monetary figure.5][Another limitation of damages in achieving
Identifytheir
three errors in the statement and, for each error, explain the correct civil proc
should have occurred.
purposes.3
purposes is that Valerie may view the compensation as insufficient.
Answers
Court proceedings are very costly and the damages may only cover I have provided an example and link
the court filing fees and the cost of legal representation.6] relationship between class actions
[Damages would partly compensate Valerie for her loss, but since
Explanations are provided for each ‘Check pain and suffering cannot beOnline video
quantified andsolutions provide
Questionan13exemplar response and guidance
monetary compensation
your understanding’ question to help studentscannot reverse the harm shefor students
endured, to assess
damages theirnot
can likely own
Tick responses.
the box
fully to indicate whether the following statements are strengths or limitation
achieving their purposes.
understand the answer in greater detail. restore her to her original position prior to the civil breach. ]
7
I have provided an introduction to summarise the extent

6A Damages as a remedy 10. [One reason Sarala is seeking $5 in damages is to prove that she
is legally right.1][She is seeking $5 in nominal damages, which is
to which I believe damages can achieve the purposes
14. [Damages would achieve the purpose of remedies to a moderate
damages for her injury.1]
of remedies, and why.1

not a significant amount, and will not compensate her for any loss.2] 15. [Class actions refer to legal proceedings brought by one or numerous
Check your understanding [The main purpose of nominal damages is to prove a legal point, plaintiffs acting for themselves as well as on behalf of a wider group
[One way the purposes of damages would be achieved is through of people who have a claim with similar facts. In a successful class
rather than to gain as much monetary compensation as possible.3] specific damages, as they would aim to return Valerie to her original
1. B. False. Explanation: The role of remedies is to return the plaintiff action, damages are likely to be awarded, however, they must be
to their original position before the civil breach occurred. position in terms of her finances, compensating her for her medical
I have identified the purpose of damages in Sarala’s case.1 expenses. This can be calculated exactly and she would likely shared among the numerous plaintiffs of the class action.1][Since
2. A; C; D. Explanation: Nominal damages do not come under be able to recoup these funds and return to her original financial there are more than seven plaintiffs in a class action, the damages
the umbrella of compensatory damages as their aim is not to I have provided an example from the scenario and linked
position before the injury occurred.2] paid by the defendant must be shared by all the plaintiffs.2]
it to the theory.2 [This means that each individual plaintiff may not receive enough
I have provided one way damages achieve the purposes
compensate the plaintiff but to uphold their rights.
[A second way that specific damages could achieve the purpose financial compensation to restore them to their original financial
3. B. False. Explanation: General damages compensate for pain and I have provided information about my chosen purpose.3 of remedies is by accounting for lost wages. Valerie will be
position, thus failing to achieve the main purpose of damages.3]
suffering, factors that have no monetary value and thus cannot compensated for the time she spent out of work while she was
I have used signposting in my response, such as recovering. Furthermore, since she can no longer coach, the time
[For example, in a class action where many plaintiffs have suffered
be calculated exactly.
of remedies.2
financial losses due to large medical expenses, shared damages may
‘One reason’. she spent searching for new work may be compensated as well. ] 3
not be enough to sufficiently cover these medical expenses, leaving
4. C. Explanation: The medical costs of the broken arm can be [A third way Valerie could be returned to her original position before each plaintiff to cover some of these costs themselves.4]
compensated by specific damages. However, general damages, the civil wrong was committed is through general damages. These
not specific damages, compensate for pain and suffering.
11. [Compensatory damages refer to monetary damages that aim to would aim to compensate for the pain and suffering she endured
restore the plaintiff to their original position had the breach not been I have identified the relationship between class actions
5. Aggravated damages aim to compensate for humiliation. committed.1][On the other hand, the main purpose of exemplary
she has endured. As Valerie can no longer walk, this would also
damages is to denounce the behaviour of the defendant and deter
6. Nominal damages: II; III be taken into account when deciding the amount of damages.4] I have provided one way class actions affect the ability
others from behaving in the same way.2][One key difference between
I have provided a second way damages achieve the

Contemptuous damages: I; IV of damages to achieve their purposes.2
the two types of damages is that compensatory damages seek to [However, the pain and suffering incurred by Valerie can only
compensate the plaintiff and restore them to their original position be compensated partially as money cannot reverse what she has
7. C. Explanation: The main purpose of damages is to return the I have provided information about my chosen way class
before the breach, whereas exemplary damages do not aim to endured and pain and suffering cannot be quantified into a precise,
plaintiff to their original position before the civil breach occurred. actions affect the ability of damages to achieve their
purposes of remedies.3
compensate the plaintiff.3] monetary figure.5][Another limitation of damages in achieving their
purposes.3
Preparing for exams I have provided information about compensatory damages.1 Court proceedings are very costly and the damages may only cover I have provided an example and linked it to the
the court filing fees and the cost of legal representation.6] relationship between class actions and damages.4
Standard exam-style I have provided information about exemplary damages.2
8. [The main purpose of damages is to return the plaintiff back to I have provided one key difference between pain and suffering cannot be quantified and monetary compensation
their original position before the civil wrong occurred. ][There are
1
compensatory damages and exemplary damages.3 cannot reverse the harm she endured, damages can likely not fully
I have provided a third way damages achieve the

different types of damages that compensate for different types of restore her to her original position prior to the civil breach.7]
loss, such as property damage, loss of income, pain and suffering, I have used comparison words, such as ‘On the other hand’
or medical expenses.2] and ‘whereas’, when distinguishing. I have provided an introduction to summarise the extent
I have provided one purpose of damages.1 of remedies, and why.1
12. [One type of damages that could be awarded to Desiree is general
I have provided information about my chosen purpose.2 damages.1][This would compensate her for the mental suffering I have provided one way damages achieve the purposes
caused by having her private information shared by Niamh.2][Another of remedies.2
I have used signposting in my response, such as type of damages that could be awarded to Desiree is aggravated
‘The main purpose’. I have provided a second way damages achieve the
damages.3][This would compensate her for the deliberate humiliation
Niamh caused and would aim to denounce Niamh’s actions.4]
[One reason why a plaintiff may be seeking general damages is

I have provided one limitation of damages achieving the
9. I have provided a third way damages achieve the
I have identified one type of damages the judge may
to compensate for an intangible loss. ][General damages aim to
1 purposes of remedies.4
award Desiree.1
compensate for pain, suffering, and any other distress caused by a civil
I have provided one limitation of damages achieving the
breach that cannot be precisely calculated into a monetary amount.2]
I have provided information about my chosen type of
[For example, if a person is physically injured, general damages would damages and linked it to the scenario.2
aim to compensate for the mental distress of not being able to perform
I have provided a second limitation of damages achieving
day-to-day tasks, and the physical pain of the injury itself.3] I have identified a second type of damages the judge may
the purposes of remedies.6
award Desiree.3
I have identified one reason why a plaintiff would I have provided a conclusion to my response that links
seek general damages.1 I have provided information about my chosen type of
back to the question.7
damages and linked it to the scenario.4

I have provided information about general damages.2 I have linked my answer to the scenario where appropriate.
I have used signposting in my response, such as ‘One type’
I have provided an example of when general damages and ‘Another type’.
I have used paragraphs and topic sentences to organise
would be appropriate.3 my response.
the purposes of remedies.6

6A ANSWERS
6A ANSWERS
I have used signposting in my response, such as I have used signposting in my response, such as
Extended response
‘One reason’. ‘One way’ and ’A second way’.
13. Achieved: II
Not achieved: I; III I have used connecting words, such as ‘Furthermore’
and ‘However’.
I have provided a conclusion to my response that links

560 ANSWERS ANSWERS 561

Exemplar responses
I have linked my answer to the scenario where appropriate. are provided for every
Notes are included when it is necessary Checklists break down exemplar exam-style question to
to explain alternative approaches to a answers
I haveto exam-style
used paragraphsquestions to
and topic sentences to organise demonstrate what a full mark
question, or why a certain response would assist
mystudents
response. to understand how to response could look like.
not be appropriate. best structure their responses.
I have used signposting in my response, such as
‘One way’ and ’A second way’.
I have used connecting words, such as ‘Furthermore’

and ‘However’. FEATURES OF THIS BOOK VII
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Where to get help

SUPPORT RESOURCES
VCE Legal Studies is a fascinating course, with strong connections to

real-world events and lived experiences of people in our communities.
The relevance of the content to our lives is what makes it such an interesting
and important subject to study. To understand the operation of the justice
system and the social, political and legal issues that exist in our democratic
society, it is important that realistic examples are provided for context.
This textbook contains theoretical information, real-world examples,
and hypothetical scenarios that may be triggering for some students, due
to their personal experiences or a mental health condition. For instance,
there will be examples involving criminal acts that may be confronting for
some students. Where content is identified as being potentially triggering,
you will see a content warning beside specific examples, or at the
beginning of a particular lesson or chapter.
If any of the concepts or examples you learn about in this course triggers
any negative emotions and you need access to mental health support to
cope with these feelings, it may be beneficial to reach out for support.
Whilst you can seek the support of family, friends, teachers and other
people in your life, sometimes talking to an independent professional
can also help. This page provides a list of mental health resources and
services to support students who may need it. There are also links to legal
information and advice services, in case students are facing any legal issues
in their own lives.
The resources and services listed below are not the only sources of help
available. More resources can be accessed via an online search, or through
referral from one of the services listed here. You should reach out to
trusted adults and friends too, when you need to.
Legal information and advice

Web addresses and phone numbers are correct as of 2023. In the event that the links or phone numbers do not work, please search online for the relevant
organisation to find their most up-to-date contact details.
Community legal centres (CLCs) YouthCentral

CLCs are independent community organisations Youth Central is the Victorian Government’s website for
that provide free legal services to those who need it. young people aged 12-25, providing information about life
You can search for your local CLC online. from every angle, including the rights of young people.
www.fclc.org.au www.youthcentral.vic.gov.au
JobWatch Youthlaw
An employment rights community legal centre. Victoria’s free community legal centre for young people
JobWatch provides a free Telephone Information under 25 years of age. Youthlaw services include legal
Service and provides employment law resources online. advice by phone and email, a drop in clinic, legal
jobwatch.org.au education, and more.
Melbourne: (03) 9662 1933; youthlaw.asn.au (03) 9113 9500
Regional Victoria: 1800 331 617
Victoria Legal Aid

A source of free legal information, advice and
representation.
www.legalaid.vic.gov.au 1300 792 387
VIII
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SUPPORT RESOURCES
Mental health support
Web addresses and phone numbers are correct as of 2023. In the event that the links or phone numbers do not work, please search online for the relevant
organisation to find their most up-to-date contact details.
Beyond Blue ReachOut

A reliable source of mental health information, A 100% online, anonymous and confidential service.
support, and hope. Offers free telephone and ReachOut provides one-to-one peer support, moderated
online counselling services 24 hours a day, seven online communities, tips, stories and other resources.
days a week. au.reachout.com
www.beyondblue.org.au 1300 224 636
SANE
Headspace Free support services, including counselling, community
A national youth mental health foundation, providing forums, peer support and groups, information and
mental health services to 12–25-year olds. Their resources.
services include in-person, online and phone support. www.sane.org 1800 187 263
headspace.org.au 1800 650 890
1800Respect
Kids Helpline A national domestic, family, and sexual violence
A free, confidential 24/7 online and phone counselling counselling service. Confidential information, counselling
service for your people aged five to 25. Qualified and support service is available 24 hours a day, 7 days a
counsellors at Kids Helpline are available via week, for free.
WebChat, phone or email anytime and for any reason. 1800respect.org.au 1800 737 732
kidshelpline.com.au 1800 55 1800
Lifeline
A national charity providing all Australians
experiencing emotional distress with access to 24 hour
crisis support and suicide prevention services.
www.lifeline.org.au 13 11 14
IX
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An introduction to Legal Studies

INTRODUCTION
‘There are no secrets to success. It is the result of preparation, hard work, and learning
from failure.’—Colin Powell (American politician, 1994)
These words hold true in every aspect of life, and VCE Legal Studies is no exception.
To achieve excellence, one must lay a solid foundation of knowledge and understanding.
That is where this lesson, ‘An introduction to Legal Studies’, comes into play. Whether you
are a student revisiting the key concepts from Legal Studies Units 1 and 2 or a fresh-faced
learner studying Legal Studies for the first time, this introduction will outline fundamental
legal concepts needed to succeed in VCE Legal Studies Units 3 and 4. The content in this
section of the textbook is not all directly assessable content in the VCE Legal Studies
Units 3 and 4 course, however some concepts introduced here will be helpful to have
Image: SaiArLawKa2/Shutterstock.com
an understanding of first as a solid foundation for the rest of the course.
Introduction
As a multicultural and diverse country, Australia’s laws, legal system, and citizens
are each responsible for maintaining social cohesion. The law establishes societal
codes of moral behaviour, whilst the legal system plays a crucial role in protecting
the rights of individuals and ensuring a safe and harmonious society.
Although laws aim to promote social cohesion, it is inevitable that these laws may
be broken. Thus, the legal system has established processes and procedures to
ensure justice is achieved in both criminal and civil cases.
The principles of justice

The principles of justice are the foundation of the Victorian legal system, and in
KEY TERM
VCE Legal Studies, these principles are discussed to determine the achievement
Principles of justice underlying of justice. Elements of the Victorian justice system can be assessed in terms of
principles of the legal system, and whether they effectively achieve the principles of justice. Whilst each principle of
in VCE Legal Studies, these principles justice has its own distinct characteristics, it is important to recognise the links and
can be applied to the Victorian justice connections between them. Oftentimes, the achievement of one principle of justice
system in order to assess whether
will contribute to the achievement of another.
justice is achieved.
EQ
USEFUL TIP SS SS
EQ
UA
E
UA
E
FAIRN
The Victorian Curriculum and

FAIRN
LITY
LITY
Assessment Authority (VCAA) PRINCIPLES
study design provides definitions for OF JUSTICE
the principles of justice. It is helpful
to know these definitions, but also
ensure you understand their meaning ACC E SS
and can apply the three principles ACC E SS
to examples about the Victorian civil
and criminal justice system. Figure 1 The three principles of justice are all interrelated
X Introduction to legal Studies

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Fairness
INTRODUCTION
S
Fairness is the principle that all people can participate in the justice system and ES
FAIRN
its processes should be impartial and open. This principle is centred around the
idea that all individuals have the right to a fair trial. It provides individuals and
businesses in legal disputes, or individuals who have been accused of a crime,
with the right to have their case heard by an unbiased third party.
An example of fairness in criminal law is the presumption of innocence, KEY TERM
whereby an accused is always considered to be innocent until proven guilty Fairness the principle that all people
in a court of law. It would not be fair to presume guilt before all the evidence can participate in the justice system
is presented to the court and a judge or jury has decided the verdict based on and its processes should be impartial
that evidence. and open.
Equality
EQU
Equality is the principle that all people engaging with the justice system and
ALI
its processes should be treated in the same way. If the same treatment creates
TY
disparity or disadvantage, adequate measures should be implemented to allow
all to engage with the justice system without disparity or disadvantage. This
principle is about recognising where the law treats people differently due
to personal circumstances and aims to remedy where the law discriminates KEY TERM
against disadvantaged groups.
Equality the principle that all people
The principle of equality is closely linked with the rule of law, which states that engaging with the justice system and
all persons, businesses, and governments are equal before the law, and no one is its processes should be treated in
above the law. However, this can become complicated if, for example, children the same way. If the same treatment
are held to the same standard as the average adult. creates disparity or disadvantage,
adequate measures should be
An example of an equitable mechanism in Victorian society is the Children’s implemented to allow all to engage
Court of Victoria which allows children under the age of 14 to be sentenced with the justice system without
differently. This is because children are more susceptible to the negative effects disparity or disadvantage.
of the justice system due to their impressionable age. Thus, the Children’s
Court is an equitable policy implemented by the government to ensure children LEGAL VOCABULARY
are not unfairly imprisoned and are afforded the right to rehabilitation. Rule of law the principle that the law
applies to everyone equally regardless
of status.
NOT EQUAL EQUAL
The criminal justice system without The criminal justice system with
measures in place to avoid disparity measures in place to avoid disparity
Figure 2 The principle of equality
Whilst equality is often associated with equal treatment for all people, it is
more accurately described as an equal result for everyone involved. Equality
is achieved when individuals ultimately reach the same outcome, which may
require treating them differently through the use of equitable policies.
An introduction to Legal Studies XI

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Access
INTRODUCTION
Access is the principle that all people should be able to engage with the justice
system and its processes on an informed basis. It is a requirement in our society
AC that individuals and businesses inform themselves of, and understand, the law.
CESS
Therefore, it is vital that laws are available and easily understandable so citizens
understand their legal rights and are aware of the laws that apply to them.
KEY TERM An example of the principle of access in the Victorian justice system is the
Access the principle that all people availability of free legal information and advice from organisations such as
should be able to engage with the Victoria Legal Aid and community legal centres. The services provided by these
justice system and its processes on an organisations promote access to the law for all citizens.
informed basis.
The Australian Constitution

Prior to colonisation in Australia, First Nations peoples had complex legal systems and
customs, which are still practised today. In order to legally justify colonising Australia,
British settlers declared Australia ‘Terra Nullius’, translating to ‘the land of no one’,
upon arrival into Australia, allowing them to legitimise the land dispossession of First
Nations peoples.
Following British colonisation, settlers created the Australian Constitution, which
KEY TERMS
is a legally-binding document establishing the legal and parliamentary systems
Australian Constitution the founding of government that can only be altered when changes are approved by Australian
document of Australia that sets out citizens. The institutionalisation of the Constitution occurred on 1 January 1901, the
the composition of the Australian day of Federation, and involved the transition of the six Australian colonies into states.
Parliament, its function and layout,
and its powers.
Constitutional monarchy a system Constitutional monarchy
of government in which the Crown Australia is a constitutional monarchy. This means the monarch’s authority adheres
is the Head of State, but elected to the Constitution, whilst lawful decisions are made by the parliament. Although
representatives have the power
Australia’s legal system is still aligned with that of the United Kingdom, in practice,
to create laws.
the King’s interaction with Australian law is minimal. The Governor-General
High Court of Australia the most
of Australia and state Governors act on behalf of the King to grant royal assent
superior court in Australia that hears
matters of federal significance and to legislation created by the Commonwealth Parliament and state parliaments
appeals from federal, state, and respectively. The Australian legal system can also be described as a democracy
territory courts. as members of parliament are voted in by the people to represent the people.
LEGAL VOCABULARY
The Constitution in society
Federation the process of uniting
states into a cohesive group under The High Court of Australia is the only Australian court that can interpret the
centralised authority. Constitution. The Constitution safeguards Australian citizens from abuses of
Democracy a system of government power by any person or entity through stated mechanisms that ensure law-making
whereby the people have the power powers are shared and the rights of the people are not undermined. Moreover,
to elect representatives to make laws any modifications to the Constitution require the approval of Australians through
on their behalf. a double majority referendum vote.
Referendum a compulsory national
vote in which members of the electoral
roll vote ‘yes’ or ‘no’ to alter the
Australian Constitution.
Image: Den Rozhnovsky/Shutterstock.com

Figure 3 The Crown is the term used to describe the governing authority in Australia at both the state
and federal level
XII Introduction to legal Studies

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Sources of law
Laws are made by members of parliament (MPs), who are elected politicians
INTRODUCTION
KEY TERMS
chosen by Australians The laws made by MPs are statute laws, also referred to as
legislation. Judges in the courts can also make laws, as some court decisions become Statute law the body of law that
precedents, or rules, that must be followed in future cases in the same hierarchy comprises laws made by parliament,
with similar material facts. These judge-made laws are common laws. also known as legislation.
Common law the body of law that
is derived from judicial reasoning and
Parliament’s role in creating statute law decisions in past cases.
The Commonwealth Parliament serves as the representative body for all of
Australia, enacting laws that impact everyone, regardless of their place of residence LEGAL VOCABULARY
in Australia’s states or territories. Each state also possesses its own parliament, Bicameral parliament a law-making
which establishes legislation only for its residents. Altogether, Australia has nine body with two houses or chambers
parliaments: the Commonwealth Parliament and eight state and territory parliaments. that must approve of new bills
or amendments to laws.
At the federal level, Australia operates under a system with a bicameral parliament,
Bill a proposed law introduced
where two distinct Houses of Parliament coexist. The upper house and lower house in a parliament by a member of one
collaborate in the process of transforming bills into laws. of its houses.
Commonwealth Parliament Victorian Parliament

The King’s representative The King’s representative
(Governor-General of Australia) (Governor of Victoria)
UPPER HOUSE
BICAMERAL SYSTEM
Senate Legislative Council
LOWER HOUSE
House of Representatives Legislative Assembly
Figure 4 The Commonwealth and Victorian parliaments
When establishing legislation, an MP will introduce a bill, which is a proposed

law that has not yet become an Act. To be legislated, this bill must pass through
the lower house, with the majority of members approving of the bill, be reviewed,
scrutinised, and approved by the upper house, and receive royal assent from the
state Governor or Governor-General, depending on whether the law is a state
or federal law respectively.
USEFUL TIP
A statute can also be referred to
as ‘legislation’ or an ‘Act’. They are
interchangeable terms that all refer
House of Senate King & to laws made by parliament.
Representatives Governor-General
Figure 5 Features of the Commonwealth Parliament
Citing Acts of parliament

Acts made by parliament are expressed in a specific way where the titles include key
information about the law. Titles of Acts include:
• the name of the Act
• the year it was passed in parliament
• the parliament it was passed in.
Wrongs Act 1958 (Vic) Sex Discrimination Act 1984 (Cth)
Title Year Parliament Title Year Parliament

Figure 6 Citing Acts of parliament
An introduction to Legal Studies XIII

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The court’s role in creating precedent

KEY TERMS The common law system is based upon the doctrine of precedent, whereby courts
INTRODUCTION
lower in the court hierarchy follow the decisions of the courts higher in the
Precedent a legal principle or decision hierarchy to provide consistency, predictability, and justice.
established by a court in a previous
case that is used as a guide or authority Statutory interpretation occurs when the courts apply and interpret legislation for
in subsequent cases with similar facts the case presented before them. The courts must interpret and clarify the meaning
or legal issues. of legislation to resolve disputes and provide justice and this ultimately forms
Statutory interpretation a process precedent, a principle of law that can be applied in similar cases in future. However,
whereby the courts give meaning to judges cannot choose which laws to interpret. Rather, a person with standing must
the words in legislation when applying bring a case to court before a judge can interpret the law. Alternatively, an accused
the legislation to a case.
must commit a crime and plead not guilty in order for their case to go to court so
a judge can make law on the matter. As precedent is only binding on lower courts in
LEGAL VOCABULARY
the same court hierarchy, higher courts are bound by fewer prior decisions and can
Standing the requirement that, in order
make new legal decisions that set a precedent.
to bring a case to court, an individual
or group must be affected by, or have
a special interest in, the issues involved Most superior High Court of Australia
in the case.
Supreme Court – Court of Appeal
Court House
Supreme Court – Trial Division
County Court
Least superior Magistrates’ Court

USEFUL TIP
Figure 7 The lower courts are bound by the decisions of the higher courts in the Victorian court hierarchy
Precedent can also be referred to as
‘judge-made law’ or ‘common law’.
They are interchangeable terms that Citing cases
all refer to law made by the courts. Legal cases, like legislation, are specifically written in order to easily identify key
information about the case. The title of a legal case will include:
• the names of the parties involved in the case
• the year the case was heard
• the court identifier.
The Director of Public Prosecutions (DPP) or the Office of Public Prosecution (OPP) is
often a party to criminal matters as they bring the case to court on behalf of the victim.
Deing v Tarola [1993] 2 VR 163
Parties Year Court identifier
DPP v Hayden [2023] VCC 985
KEY TERM Parties Year Court identifier

Figure 8 Citing legal cases
Criminal law an area of law that
aims to protect society from harm by
defining prohibited behaviours and
outlining sanctions for those who Types of law
participate in illegal conduct. The legal system is divided into two main branches: criminal and civil law.
Both types of law aim to regulate behaviour and uphold justice within society.
LEGAL VOCABULARY
The consequences for breaking the law, and the way in which these are enforced,
Prosecution the party that acts on
will vary depending on the type of law that has been broken.
behalf of the Commonwealth or the
state who brings a criminal case to court.
Accused the party who is charged Criminal law
with a criminal offence. Criminal law establishes and addresses harmful behaviours that disrupt social
Sanction a penalty imposed by a court, cohesion. In Victoria, most crimes, such as assault, murder, manslaughter, culpable
or an authorised body, on an offender
driving, and theft, are defined in the Crimes Act 1958 (Vic). Criminal law involves the
when they plead guilty or are found
prosecution of accused individuals, the determination of guilt, and the imposition
guilty of a crime.
of sanctions, such as imprisonment, by a judge or magistrate if guilt is made out.
XIV Introduction to legal Studies

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In a criminal case, the burden of proof lies with the prosecution, who must prove
the accused’s guilt beyond reasonable doubt.
INTRODUCTION
KEY TERM
Civil law an area of law that defines the

rights and responsibilities of individuals,
government entities, and organisations,
and provides a legal framework for when
these parties interact with each other.
Figure 9 Types of crime LEGAL VOCABULARY

Plaintiff the party that initiates a civil
Civil law claim against another person, the
defendant, in court.
Civil law protects individuals, businesses, and organisations by granting them the
Defendant the party that is defending
right to seek compensation when their rights have been breached. Civil claims themself against a claim by another
include negligence, defamation, misleading or deceptive conduct, divorce disputes, person, the plaintiff, for an alleged
and child custody. The plaintiff initiates the claim against the defendant, who breach of civil law.
allegedly caused their harm or loss. Remedy a court order that aims
to enforce a right by preventing a civil
In a civil dispute, the burden of proof lies with the plaintiff, meaning they must
breach, or correct a civil breach and
prove on the balance of probabilities that the defendant was responsible for the
return the plaintiff to the position
plaintiff’s loss or suffering. If the defendant is found liable, the judge or magistrate they were in prior to the breach by
can compensate the plaintiff by awarding a remedy. the defendant.
Table 1 Types of civil law
Type of civil law Explanation Example

A type of law that focuses on protecting people from • An allergic reaction due to a business selling food
Negligence law harm and ensuring parties owing a duty of care without providing allergy warnings.
uphold this duty. • Medical bills incurred as a result of physical harm
caused by another person.
A type of law that seeks to safeguard a plaintiff • A false statement claiming a politician committed
from experiencing unjust harm to their reputation. an offence against another person.
Defamation law An action in defamation cannot be pursued if the • A false statement claiming a person is acting
defamatory statement is true, meaning it only protects unethically or irresponsibly in their workplace.
the plaintiff from false statements that unjustly lower
their reputation.
A type of law that governs the relationship between • Faulty products that have been recalled cannot be
businesses and consumers by ensuring product safety, sold to consumers.
Consumer law protecting customers from unfair contract terms, and • If a contract with a telecommunications company
guaranteeing that items purchased are fit for purpose. allows the provider to cancel or suspend services
with the customer for no reasonable explanation,
this may be considered an unfair contract term.
A type of law that regulates the relationship between • Within the Fair Work Act 2009 (Cth), there are over
employees and their employers, including matters one hundred ‘awards’ that outline the minimum
such as pay and working conditions. conditions that employees in a specific industry are
Workplace law entitled to.
• An employer cannot unfairly terminate an
employee’s employment or discriminate against
them due to certain characteristics.
An introduction to Legal Studies XV

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Rights
INTRODUCTION
Human rights, legal rights, and moral rights are distinguishable based on the
LEGAL VOCABULARY
purpose of creating the right and the effect these entitlements have on individuals.
Human rights privileges and liberties Human rights are the universal entitlements that any individual can exercise,
that should be offered to all human whilst legal rights refer to the specific rights that an individual is legally entitled
beings, irrespective of any qualities
to enjoy, enforced by the state or government. Moral rights emphasise the universal
and characteristics.
ethical rights and principles that people can adhere to, which may or may not be
Legal rights an entitlement provided
and protected by legislation and/or
legal rights. Individual’s perceptions of moral rights may differ according to their
common law. culture, views, and beliefs.
Australia utilises various international human rights declarations and treaties

to inform law-making and ensure fundamental human rights are upheld.
LEGISLATION Parliamentary laws that enforce human rights in Australia include:
Equal Opportunity Act 2010 (Vic) • Equal Opportunity Act 2010 (Vic)
Racial Discrimination Act 1975 (Cth) • Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth) • Sex Discrimination Act 1984 (Cth)
Table 2 Types of rights

Human rights Legal rights
What are they? Universal rights that are, theoretically, Rights that are written in legislation and
afforded to all people. enforceable in law.
Who do they apply to? Universally applies to all people. Differs depending on a person’s place
of residence.
Who creates them? International bodies, such as the Written in legislation made by
United Nations. the government.
What are the sanctions or punishments No punishment until a sanction Punishments and penalties dictated
for breaching the rights? for breaching the right is included by legislation.
in legislation by a specific country
or state parliament.
Ways human rights are protected in Australian law
Constitutional Legislation Common Law

protections
Eg. Racial Discrimination Eg. Right to silence in
Express rights Act 1975 (Cth) police questioning
Eg. Freedom of religion
Implied rights
Eg. Freedom of political
communication
Figure 10 Human rights protection in Australia
International treaties and declarations

An international treaty, also known as a covenant or convention, is an agreement
LEGAL VOCABULARY between two or more nations or international bodies about certain actions. Treaties
International treaty an agreement cover a wide range of topics, including rules about international trade and aviation,
between two or more countries or climate change, and military action. An international declaration is a statement of
international organisations, that creates
principles that is not binding upon a nation, for example, the Universal Declaration
international rights and obligations.
of Human Rights.
International declaration
a non-binding agreement between By signing international treaties, Australia has committed to protecting human
two or more countries that establishes rights, as contained within these conventions. However, such an agreement is not
the aspirational rights and obligations automatically incorporated within Australian law. Instead, relevant legislation
that parties to the agreement seek containing the principles of the treaty and a commitment to protect human rights
to enforce.
must be passed through parliament to give effect to the human rights contained
within such a treaty.
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Constitutional protections
Every Australian is guaranteed five express rights, which are explicitly stated
INTRODUCTION
and entrenched in the Constitution, meaning they can only be removed, added LEGAL VOCABULARY
to, or changed through the process of a referendum. These rights are also fully Express rights the five human rights
enforceable, meaning that if a person or organisation believes parliamentary that are explicitly stated and entrenched
in the Australian Constitution.
legislation breaches a certain express right, they may challenge the law’s validity
in the High Court of Australia. Implied right a freedom that is not
explicitly outlined in the Australian
Implied rights are not explicitly stated in the Constitution, but have been interpreted Constitution but has been interpreted
and ruled to exist by the High Court. These freedoms are also fully enforceable. by the High Court to exist.
The separation of powers is a principle established by the Constitution to ensure Separation of powers a principle
established by the Australian
there is no abuse of power by the bodies involved in the creation of laws and
Constitution that ensures the
administration of justice. The three branches of government this doctrine suggests legislative, executive, and judicial
should be separated are the executive, the judiciary, and the legislature. powers remain separate.
Legislative
The power to ‘make’ laws.
• Members of the Senate
Judiciary • Members of the House
The power to ‘adjudicate’ of Representatives
via the application of laws. • The King, represented
• The courts, including by the Governor-General
magistrates, judges
and justices • The prime
• Tribunals minister.
• Ministers
• Cabinet
Executive
The power
to ‘administrate’ laws.
• Government departments
• Government agencies
• Members of public service,
such as police officers
Figure 11 The separation of powers
Summary
A strong grasp of legal principles is essential for success in Legal Studies.
The contents of this introduction to Legal Studies are designed to provide you with
some relevant background information to begin your studies of Units 3 and 4 Legal
Studies. The overview of content that this introduction provides will be further
explored throughout this textbook, further building on the foundational knowledge
and understanding established here.
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EXAM-STYLE QUESTIONS
Approaching exam-style questions

The VCE Legal Studies examination is worth 50% of your study score for Units 3 and 4. Therefore, it is important
for you to understand how to interpret exam-style questions and respond to them appropriately. To excel in the
exam, you will need to understand how to:
• dissect a question and respond appropriately
• use stimulus material in your response
• plan a response
• approach 10 mark questions.
This resource will help you understand how to interpret the requirements of exam-style questions, how to structure
your response, and how to best meet the requirements of a question when there might be multiple ways to approach
it. The Edrolo approach to planning and self-assessing responses is explained below, and there are examples of this
throughout the textbook.
Figure 1 Preparation is the key to success in exams
Dissecting a question
Before approaching an exam-style question, it is necessary to dissect the question into its parts and understand
what you are required to do. For higher-mark questions, this sometimes allows you to assess how many marks are
available for each part of the question. This can then inform you of the amount of time you should spend on each part
accordingly. Exam-style questions contain the following features: command terms, limiting terms, and content terms.
Please note, not all questions have limiting terms.
Example A
Command term Limiting term Content term
Outline one reason for the Victorian court hierarchy. (2 MARKS)

Adapted from VCAA 2019 exam Section A Q5a
Command terms
The Victorian Curriculum and Assessment Authority (VCAA) has published a glossary of ‘command terms’, which
are instructional words commonly used across the Victorian curriculum, including in VCE exams. These terms are
often referred to as ‘task words’ and they communicate instructions. In the context of VCE exams, command terms
instruct you on how to respond to a question. Some common examples of command terms used in Legal Studies
include outline, describe, explain, justify, analyse, discuss, and evaluate. You should refer to the VCAA website for
the most up-to-date information about command terms.
Limiting terms
Limiting terms are words that provide further clarification about what you need to do, or how you need to respond
to the question. Limiting terms often quantify the instructions by specifying a particular amount of information that
you need to limit your answer to, or outline a choice you must make in your answer, with a term such as ‘either’.
In Example A, the limiting term is ‘one’, indicating that you must limit your answer to only providing a singular
reason for the court hierarchy.
Content terms
Content terms are the terms that come from the VCE Legal Studies Study Design. These are the topics and concepts
you will study in this course. In Example A, the content term is the ‘Victorian court hierarchy’ as it is a key, legal
concept from the Study Design.
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Approaching exam-style questions with stimulus material
Many questions in past VCE Legal Studies exams have contained scenarios or other stimulus material, such as quotes,
extracts from legislation, or other legal sources. These require you to link your theoretical understanding of legal
concepts to the stimulus when responding to the question. When faced with a question like Example B, it is necessary
to make reference to the stimulus material and make a link between the scenario and the theory.
Example B
Abigail, a famous soccer player, wants to initiate a defamation claim against
the newspaper company, ProTimes, for publishing articles accusing her of using Scenario
performance-enhancing drugs.
Distinguish between the burden of proof and the standard of proof with reference to
Abigail’s claim. (4 MARKS)
Adapted from VCAA 2018 exam Section B Q1b
Command term Content terms Requirement to link to stimulus
The following is an exemplar response with an associated checklist to demonstrate an appropriate approach
to this question. Checklists like this are provided throughout the textbook and online resources as guidance
to demonstrate one possible way of structuring responses. The checklists are not marking guides and do not
necessarily represent how each mark would be awarded in a question.
Answer
[The burden of proof refers to the responsibility of a party to prove the facts of a case. In a civil
case, the burden of proof rests with the plaintiff. ][On the other hand, the standard of proof refers
1
to the degree to which the facts of the case must be proven in court. The standard of proof in civil
proceedings is on the balance of probabilities.2][One key difference between these two concepts
is that the burden of proof refers to which party is responsible for proving the facts of a case,
whereas the requirement in relation to the standard of proof is about the degree to which that
party must prove the facts.3][Therefore, in Abigail’s case, as the plaintiff, she has the burden of
proof or the responsibility of proving her version of the facts of the case. Alternatively, in relation
to the standard of proof, the requirement is for Abigail to prove that her version of the facts is more
likely to be correct than ProTimes’ version of the facts.4]
I have provided information about the burden of proof.1
I have provided information about the standard of proof.2
I have provided one key difference between the burden of proof and the standard of proof.3
I have provided an example from the scenario and linked it to the burden of proof and the
standard of proof.4
I have used signposting in my response, such as ‘One key difference’.
I have used connecting words, such as ‘Therefore’.
I have used comparison words, such as ‘On the other hand’ and ‘whereas’, when distinguishing.
USEFUL TIP
When using Edrolo-style answer checklists in VCE Legal Studies, it is important to understand that the number of
checklist items does not always correlate with the number of marks allocated to the question. The numbered checklist
items identify phrases within the exemplar response, and there are often more identified phrases than marks, particularly
for extended-response questions. This is because in VCE Legal Studies, assessors do not mark with a marking guide that
identifies each specific element required for marks to be allocated for each question.
Instead, extended-response questions are marked ‘globally’ or ‘holistically’, which means a judgement is made by the assessor
about the overall quality of the response, in order to allocate it a mark in total. This is necessary, because there are often many
alternative ways that a given question could be approached, rather than one ‘formula’ that must be followed precisely.
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Extended-response questions
Past VCE Legal Studies exams contain many questions requiring an extended response that is usually worth at least
five marks and requires higher-level thinking skills, such as analysis and evaluation. Extended-response questions
are often expressed in a similar way to an English essay prompt. These questions often require you to consider the
strengths and limitations of a concept or explore circumstances when a particular legal process or institution may
be appropriate or inappropriate.
This Edrolo resource provides you with guidance when answering these questions. Consider Example C.
Example C
Extended-response question
Content terms
‘Juries should not decide the verdict in a criminal trial. A judge has more legal Quote provided
as stimulus
expertise, and should decide the guilt of an offender’.
To what extent do you agree with this statement? Justify your response. (6 MARKS)
Command term
This question is different to the previous examples since there are no content terms in the question itself, but the
relevant content is shown in the quote. The question requires you to draw upon your knowledge of judges and
juries to discuss whether judges are more suited to deciding criminal trial verdicts than juries.
Example C requires you to consider arguments in support of, and against, the quoted statement. These arguments
can be drawn from the strengths and limitations of judges and juries, detailed in the ‘strengths and limitations’ tables
within the relevant lesson.
This Edrolo resource also provides supporting questions by asking a short question that can help you identify
relevant factors, arguments, or examples that could form part of their extended response. For example, some
questions require you to identify which statements represent strengths, and which represent limitations. These
questions are referred to as scaffolding questions because they support you in approaching the associated
extended-response question.
Scaffolding question
Tick the box to indicate whether the following statements are strengths or limitations
of judges and juries in a criminal trial.
Statement Strengths Limitations

I. Juries are comprised of a cross-section of the
community that represent a diverse range of
✔
views. The use of juries helps ensure the legal
system is accountable to the people.
II. Judges have extensive legal expertise and

training, which allows them to interpret complex
✔
legal concepts and apply them correctly to a
criminal trial.
III. Jury members are ordinary and randomly

selected individuals, meaning they may not be
equipped with legal reasoning skills and their ✔
verdict may be incorrectly informed or lack
consideration of key legal principles.
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IV. Jurors are likely to be influenced by personal
prejudices and emotions, increasing the risk of
✔
an unfair verdict that is based on their biases as
opposed to the facts of the case.
V. Judges are familiar with legal precedents and the

principles of legal reasoning, allowing them to ✔
make justified rulings that ensure a fair trial.
VI. Judges have experience in setting aside their

personal beliefs so as to remain impartial and ✔
unbiased in their rulings.
VII. Judges are government-appointed officials and

✔
may be subject to political pressure or biases.
Strengths and limitations identified in the the scaffolding

question can be included throughout the answer to the
extended-response question.
Answer
[I agree with this statement to a moderate extent, because even though judges have more
experience and expertise than juries, juries may be less subject to political bias and they represent
a cross-section of the community.1]
[Firstly, judges have extensive legal expertise and training, allowing them to interpret complex
legal concepts and apply them correctly to a criminal trial. ][They are also familiar with legal
2
precedents and the principles of legal reasoning, which allows them to make justified rulings
that ensure a fair trial.3][However, as ordinary and randomly selected individuals, jurors may not
be equipped with these skills and their verdict may be incorrectly informed or lack consideration
of key legal principles.4]
[Moreover, judges have experience in setting aside their personal beliefs so as to remain
impartial and unbiased in their rulings. ][Jurors, on the other hand, are more likely to be
5
influenced by personal prejudices and emotions, increasing the risk of an unfair verdict that is
based on their biases as opposed to the facts of the case.6]
[However, there are also arguments against judges deciding verdicts.7][One of the main criticisms
is that judges are government-appointed officials and may be subject to political pressure
or biases. This can potentially compromise their impartiality and lead to unfair or unjust verdicts.8]
[Another limitation of judges deciding verdicts is that it limits the participation of ordinary
citizens in the legal process. ][Juries are comprised of a cross-section of the community
9
that represents a diverse range of views. The use of juries helps ensure the legal system
is accountable to the people.10]
[In conclusion, while judges may have more legal expertise and experience in remaining impartial
in their decisions, the use of juries to determine verdicts is a valuable means of public participation
in the criminal legal system.11]
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A checklist associated with the given exemplar response is shown below. It is important to remember the numbers
beside each phrase within the exemplar response align with a checklist item, but these checklist items do not
represent marks that would be awarded by assessors. As you can see from the checklist below, there are eleven
identified elements of the exemplar response, but this question is only worth six marks. The response would be
awarded a mark out of six, according to the overall quality of the response, rather than a mark for each element
of the response.
Checklist
I have provided an introduction to summarise the extent to which I agree or disagree

with the statement, and why.1
I have provided one strength of judges deciding the verdict in criminal cases.2
I have provided information about the first strength of judges deciding the verdict in
criminal cases.3
I have provided one limitation of juries deciding the verdict in criminal cases, and linked it
to the first strength of judges deciding.4
I have provided a second strength of judges deciding the verdict in criminal cases.5
I have provided a second limitation of juries deciding the verdict in criminal cases, and
linked it to the second strength of judges deciding.6
I have provided a topic sentence to introduce the main idea of my paragraph.7
I have provided one limitation of judges deciding the verdict in criminal cases.8
I have provided a second limitation of judges deciding the verdict in criminal cases.9
I have provided one strength of juries deciding the verdict in criminal cases, and linked it
to the second limitation of judges deciding.10
I have provided a statement summarising the discussion and restating the extent to
which I agree.11
I have used paragraphs to organise my response.
I have used signposting in my response, such as ‘Firstly’ and ‘Another limitation’.
I have used connecting words, such as ‘Moreover’ and ‘However’.
Following a checklist like this can help you structure an extended response.
When approaching extended-response questions you can create your own
checklists to guide your writing.
XXII Approaching Exam-style questions

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Using multiple extracts of stimulus material in your responses
In past VCE Legal Studies exams, Section B requires responses to questions with reference to stimulus material,
such as extracts from legislation, parliamentary debates, academic journal articles, media reports, or real or
hypothetical case studies.
It is important that, when required, you link your responses to the stimulus material provided, to show
an application of theoretical knowledge to real or hypothetical legal situations and information.
Example D demonstrates how the use of a checklist can ensure you regularly link to the stimulus material
in your answer.
Example D
Source 1
Joaquin’s case
Joaquin was admitted to a hospital for a routine surgical procedure. However, due
to an error by hospital staff, Joaquin was administered the wrong medication,
which led to further health complications. Joaquin was forced to undergo additional
surgery and has not been able to work for months due to the adverse effects of the
medication. He wants to pursue a civil case in negligence against the hospital and
believes a jury trial would lead to a more just outcome.
Source 2
The following is an extract of information provided by the County Court of Victoria

in 2021, to assist parties to understand updated arrangements and expectations of
the Common Law Division. Section 11.2 (b) is omitted due to irrelevance.
Section 11 Juries
11.1 Since March 2020, due to the COVID-19 pandemic, the Court has not had
a capacity to hear any civil jury trials. However, it is now possible for civil jury
trials to resume on a limited basis at the County Court building in Melbourne.
11.2 At present, the limitations on the resumption of civil jury trials include
the following:
(a) There are only two civil jury court rooms available, which have been
recently renovated to allow for social distancing:
(b) [ommitted]
(c) The empanelment of a jury is conducted remotely, using a videolink
between the trial courtroom and the jury pool room, to ensure social
distancing between panel members and conform to the density
requirements within the courtroom.
(d) There is a limitation on the number of jury trials that can be empanelled
on any given day. Priority is given to Supreme Court and County Court
criminal jury trials.
11.3 Noting the above restrictions, the Court will accommodate, wherever possible,
cases where a party has elected trial by jury as the mode of trial in accordance
with the Rules. However, given the limitations referred to in paragraph 11.2
above, this is likely to mean that not all proceedings where there is a prima
facie entitlement to a jury will proceed as a jury trial. If the choice is between
maintaining the trial date and hearing the case as a cause, or adjourning the
case until a jury is available, the interests of justice will ordinarily favour the
case proceeding as a cause, noting that both are equally just modes of trial.
Adapted from ‘Arrangements and expectations during coronavirus (COVID-19 restrictions): Common Law Division’,
(Country Court Victoria, 2021)
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Command term Requirement to link to stimulus Content term
Discuss how the restrictions relating to civil juries due to COVID-19 may affect the
achievement of the principles of justice in Joaquin’s case.
Content term
Requirement to link to stimulus
Answer
[The achievement of the principles of justice may be affected somewhat by the restrictions relating
to civil juries, but this effect is likely to be small since the use of judges in civil trials also upholds the
principles.1]
[One way juries are able to uphold the principles of justice is by promoting fairness. A randomised
cross-section of the community is used to determine the verdict, so Joaquin would have the
opportunity to have his case decided by his peers.2][However, as per Section 11 Juries, the use of civil
juries has been limited as a result of COVID-19. The reduced capacity of courts to facilitate civil trials
by jury could limit the achievement of access to justice and a fair trial as Joaquin may not be permitted
to have his case tried in front of a jury.3]
[Another way in which juries promote the principles of justice is that all parties usually have the right
to request a jury trial in a civil dispute, regardless of personal characteristics, upholding the principle
of equality.4][The COVID-19 restrictions on juries state that if the choice is between maintaining the
trial date or adjourning the case until a jury is available, the case will proceed. This means that not all
parties are able to access a jury, limiting equality and access.5]
[However, the principles of justice can still be upheld very effectively with judge-only, civil trials and
may not be limited because of the restrictions on civil juries.6][Judges can also uphold the principle
of fairness because an independent judge ensures a trial is conducted without bias and according to
rules of evidence, so the decisions in Joaquin’s case would be based on law and facts alone.7][Another
reason why the restrictions may not limit the principles of justice is that the right to request a jury is
usually limited by a party’s capacity to bear the cost of a jury anyway. Even if the restrictions were not
in place, Joaquin may not have been able to afford the fees associated with a civil jury trial, meaning
access and equality were limited, even without the restrictions.8][Finally, without the use of a jury, the
risk of a hung jury or a mistrial due to juror misconduct is eliminated, so there will be no risk of a retrial
that results in delays. The use of a judge instead of a jury in Joaquin’s case could, therefore, promote
better access to justice by removing the risk of time and cost delays, particularly given the restrictions
outlined in Source 2 provide only two civil jury rooms.9]
[Therefore, even though there are some reasons why the restrictions on juries may affect the
principles of justice in Joaquin’s case, overall the impact will be small, and there are reasons why the
use of a judge instead of a jury can better uphold the principles of justice.10]
You should consistently use examples from the case and other stimulus material
provided to support your response.
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This checklist demonstrates how theoretical knowledge can be linked to the stimulus
material and the case throughout the response.
Checklist
I have provided an introduction to my response.1
I have provided one way in which juries uphold the principles of justice and linked this
to Joaquin’s case.2
I have provided one reason why the restrictions relating to civil juries may limit the
principles of justice, and linked it to the stimulus material.3
I have provided a second way in which juries uphold the principles of justice and linked
this to Joaquin’s case.4
I have provided a second reason why the restrictions relating to civil juries may limit the
principles of justice, and linked it to the stimulus material.5
I have provided a topic sentence to introduce the main idea of the paragraph.6
I have provided one reason why the restrictions relating to civil juries may not limit the
principles of justice, and linked it to Joaquin’s case.7
I have provided a second reason why the restrictions relating to civil juries may not limit
the principles of justice, and linked it to Joaquin’s case.8
I have provided a third reason why the restrictions relating to civil juries may not limit the
principles of justice, and linked it to Joaquin’s case.9
I have provided a conclusion to my response that links back to the question.10
I have used signposting in my response, such as ‘One way’ and ‘Another way’.
I have used connecting words, such as ‘However’ and ‘Therefore’.
USEFUL TIP
The command term ‘discuss’ requires you to ‘present a clear, considered and balanced argument or prose that identifies
issues and shows the strengths and weaknesses of, or points for and against, one or more arguments, concepts, factors,
hypotheses, narratives and/or opinions’ (VCAA, 2022).
In the VCE Legal Studies, a ‘discuss’ question might require you to consider how effectively an element of the justice
system can achieve the principles of justice, which requires you to consider both strengths and limitations. In other
questions, you might need to discuss the arguments for and against using a particular legal process or institution, which
requires you to consider strengths and limitations, and/or the circumstances when something is appropriate or not.
Unlike an ‘evaluate’ question, it isn’t usually necessary to make a conclusive judgement when responding to the command
term ‘discuss’. However, in this Edrolo resource, the exemplar responses and checklists usually include a conclusion.
This may not be strictly necessary to achieve full marks, but a conclusive statement can help clarify any points you have
made throughout the discussion, adding to the overall quality of your response.
Although, when responding to a question that asks you to ‘discuss the extent to which you agree’ with a statement or idea,
it is important to provide a concise answer to this question, and the exemplars and answer checklists in this Edrolo resource
will always include an introduction and a conclusion for these types of discuss questions.
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10 mark questions
In past VCE Legal Studies exams, one of the questions has been an extended-response question worth 10 marks.
Many extended-response questions require you to demonstrate in-depth knowledge of a particular topic, whilst
showing your ability to apply this knowledge to different scenarios. This is an opportunity for you to show how
well you can connect and apply different areas of the study design. There are often many approaches to these
extended-response questions and there is not necessarily one correct answer, but many. Assessors will mark your
response ‘globally’ by considering the overall quality of the response and how well you have demonstrated the
relevant knowledge and skills, overall.
Students often wonder if it is necessary to provide specific examples and references to legislation or other evidence
in their responses. Whilst additions like this are not essential, they can contribute to the overall quality of your
response, so it may be appropriate to include these details if relevant.
The flowchart and given example demonstrate how you can approach a 10 mark question.
1.
Dissect the question to identify what you are required to do. You should identify the
command term(s), limiting term(s), content term(s), and any requirements to link
to the stimulus.
2.
Plan your response by writing yourself a checklist similar to those shown in this
textbook. If the question requires you to discuss or evaluate, ensure that your plan
includes both strengths and limitations, or arguments for and against. You may
prefer to structure your plan like a concept map rather than a checklist, but this
is up to you.
3.
Consider opportunities to use examples and/or evidence throughout your response
to support your ideas. Add these to your plan.
4.
Write your response. Include an introduction that summarises your answer to the
question, and a conclusion that summarises your main points and links back to the
question. You should also include paragraphs, topic sentences, connecting words,
and signposting where appropriate.
Figure 2 A strategy for approaching a 10 mark question
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Example E
Content terms
‘Civil remedies are always able to achieve their purposes, unlike criminal sanctions, Quote provided
which rarely achieve their purposes.’ as stimulus
Discuss the extent to which you agree with this statement. (10 MARKS)
Command term
An example of how to plan for a response to this 10 mark question using a concept map is shown below. It is
important to note that the concept map represents an example of brainstorming possible ideas to mention in the
extended response; it is not a comprehensive outline of every possible idea that could be mentioned.
• rehabilitation
• punishment
• deterrence
• restore plaintiff to • Fines • denunciation
• damages (various types) original position • CCOs • protection of
• injunctions • uphold plaintiff’s rights • Imprisonment the community
Civil remediesa always achieve their purposes and criminal sanctionsb rarely achieve their purposes.
Arguments for Arguments against
There is no one criminal sanction that can General damages are hard to quantify so it is difficult
achieve all purposesb to restore a plaintiff to their original positiona
Compensatory damages can compensate for Injunctions may be difficult to enforcea

financial lossa
Initiating a civil action is costly which means
Injunctions can prohibit certain actions before remedies cannot always be obtaineda
they breach a plaintiff’s rightsa
Each type of sanction can possibly achieve at
least some of the purposesb
E.g. Imprisonment may not protect

long term and rehabilitation is E.g. fines achieve punishment E.g. Imprisonment can
limited; fines do not protect and deterrence punish, protect, deter
Conclusion?
I mostly disagree because civil remedies do not always achieve all purposes. Criminal sanctions achieve some
purposes but not all, but I do not agree they rarely achieve the purposes.
Figure 3 Brainstorming possible arguments and associated examples can help you decide what your overall conclusion or answer is
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The following exemplar response is annotated to show elements that can contribute towards achieving the
10 marks for this question.
Answer An introduction
[I disagree with this statement to a large extent because criminal answers the
sanctions and civil remedies are both able to achieve their purposes in question and
some circumstances, even though they are both limited in this ability in summarises the
some ways.1] reason/s why.1
[It is true that civil remedies are able to achieve their purposes to a large
extent, but there are limitations to this ability.2][Compensatory damages
Arguments in aim to restore the plaintiff to their original position, before the loss caused
support of the by the civil breach. I agree that specific damages are effective in achieving Topic sentences
statement are this purpose, in that they have a precise value and are easily quantifiable, identify the
shown in blue.3 8 meaning it is possible to restore the plaintiff to their original financial focus of each
position.3][An example of specific damages is money provided to the paragraph. 2 7 11
plaintiff to cover their medical bills and loss of income.4]
Examples are [On the other hand, general damages, which aim to compensate a plaintiff
used throughout who has endured general pain and suffering, do not have a precise value
to support and are not easily quantifiable. For this reason, their ability to achieve their
arguments.4 6 purpose of restoring the plaintiff to their original position is limited.5][For
13 14 15
example, it is difficult for monetary damages to compensate a plaintiff for
shortened life expectancy resulting from a civil breach.6]
[Injunctions are another type of civil remedy, which can achieve their
purposes to a certain extent, but there are limitations. ][One purpose of
7
Arguments
injunctions is to uphold the plaintiff’s rights. By obtaining an injunction,
against the
the plaintiff can seek a court order to prohibit or require certain actions
statement
from the defendant, effectively safeguarding their rights.8][However,
are shown in
initiating a civil action comes with high costs, so not all plaintiffs will be
purple.9 10 12
able to apply for this relief.9][In addition, the court has a limited ability to
monitor and ensure the defendant adheres to the terms of the injunction.
If the defendant chooses to disregard the injunction, the plaintiff may
need to initiate additional legal proceedings to enforce it, which can be
time consuming and costly.10]
[I do not agree that criminal sanctions rarely achieve their purpose,

because, like civil remedies, criminal sanctions are able to achieve their
purposes to a large extent, but there are also limitations to this ability.11]
[The purposes of sanctions are rehabilitation, punishment, deterrence,
denunciation, and protection of the community. Two common types
of sanctions, fines and imprisonment, are able to achieve some of
these purposes to a moderate extent, even though neither of these
sanctions can achieve all purposes.12][For example, fines can achieve
the purposes of punishment and deterrence quite effectively, but are
not effective in achieving purposes such as rehabilitation and protection
Connecting words of the community.13][Likewise, imprisonment achieves most purposes
are shown in grey. of sanctions quite effectively, but not all purposes are achieved. For
instance, whilst protection is achieved for the period of imprisonment,
many prisoners who are released will reoffend, so community protection
Connecting words
is not achieved in the long term.14][Additionally, high recidivism rates
are shown in grey.
also indicate that imprisonment is limited in its ability to achieve both
rehabilitation and deterrence.15]
[In conclusion, I do not agree with the contention that civil remedies A conclusion
are always able to achieve their purposes and criminal sanctions rarely summarises the
do, because whist there are different types of remedies and sanctions discussion and
that can each be effective in achieving different purposes, there are also links back to the
limitations of each type of remedy or sanction in relation to one or more question.16
of the purposes.16]
XXVIII Approaching Exam-style questions

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A checklist for this question and exemplar is shown below. The checklist doesn’t indicate how marks would
be awarded, but it is helpful to guide a suitable structure for the extended response.
Checklist
I have provided an introduction to state the extent to which I agree, and a brief reason for
my answer.1
I have provided one argument in support of the statement.3
I have provided an example relevant to the first argument in support of the statement.4
I have provided one argument against the statement.6
I have provided an example relevant to the first argument against the statement.7
I have provided a second argument in support of the statement.9
I have provided an example relevant to the second argument in support of

the statement.10
I have provided a second example relevant to the second argument in support of

the statement.11
I have provided a third argument against the statement.13
I have provided an example relevant to the third argument against the statement.14
I have provided a second example relevant to the third argument against the statement.15
I have provided a conclusion to my response that links back to the question.16
I have used connecting words, such as ‘On the other hand’ and ‘However’.
USEFUL TIP
The 2022 VCE Legal Studies external assessment report provided some good advice regarding general examination
techniques. This report, along with other years’ reports, is available on the VCAA website. Some of this advice
is summarised below:
• Where applicable, paragraphing, signposting, and the use of topic sentences are important to ensure clarity and
to allow points to be easily identified.
• Time management is important. You should not spend too much time on straightforward questions. This will ensure
you have enough time for planning and writing extended responses.
XXIX

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Summary
VCE Legal Studies exam questions aren’t always straightforward. Often there are many approaches you could take
to achieve high marks. The scaffolding questions, exemplar responses, and checklists provided in this textbook
can help you understand how to plan and write responses to questions in the end-of-year examination and in your
School Assessed Coursework tasks (SACs).
XXX Approaching Exam-style questions

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UNIT 3
Rights and justice
The Victorian justice system, which includes the criminal and civil justice systems, aims
to protect the rights of individuals and uphold the principles of justice: fairness, equality
and access. In this unit, students examine the methods and institutions in the criminal and
civil justice system, and consider their appropriateness in determining criminal cases and
resolving civil disputes. Students consider the Magistrates’ Court, County Court and Supreme
Court within the Victorian court hierarchy, as well as other means and institutions used to
determine and resolve cases.
Students explore topics such as the rights available to an accused and to victims in the criminal
justice system, the roles of the judge, jury, legal practitioners and the parties, and the ability of
sanctions and remedies to achieve their purposes. Students investigate the extent to which the
principles of justice are upheld in the justice system. Throughout this unit, students apply legal
reasoning and information to actual and/or hypothetical scenarios.
Reproduced from VCAA VCE Legal Studies Study Design 2024–2028
Image: Korkusung/Shutterstock.com
1
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UNIT 3 AOS 1
The Victorian criminal justice system
The purposes of the Victorian criminal justice system are They consider the impact of time, costs and cultural
to determine whether an accused person is guilty beyond differences on the ability of the criminal justice system to
reasonable doubt of an offence for which they are charged, and achieve the principles of justice. Students synthesise and
to impose sanctions when a person is guilty of committing a apply legal principles and information relevant to the criminal
crime. The system includes the courts (the Magistrates’ Court, justice system to actual and/or hypothetical scenarios.
County Court and Supreme Court) and institutions such as
Victoria Legal Aid and community legal centres available to
Outcome 1
assist an accused and victims of crime. On completion of this unit the student should be able to
explain the key principles in the criminal justice system,
In this area of study, students explore the criminal justice discuss the ability of sanctions to achieve their purposes and
system, key personnel, and the use of plea negotiations to evaluate the ability of the criminal justice system to achieve
determine a criminal case. Students investigate the rights the principles of justice during a criminal case.
of the accused and of victims, and explore the purposes and
types of sanctions and sentencing considerations.
KEY SKILLS
• define and use legal terminology • discuss the appropriateness of plea negotiations
• discuss, interpret and analyse legal principles and information • discuss the impact of costs, time and cultural differences
• explain the rights of an accused and of victims in the on the achievement of the principles of justice during a
criminal justice system criminal case
• explain the roles of Victoria Legal Aid and Victorian • discuss the ability of sanctions to achieve their purposes
Community Legal Centres in assisting an accused and • evaluate the ability of the criminal justice system to achieve
victims of crime the principles of justice during a criminal case
• analyse the roles of key personnel in a criminal case • synthesise and apply legal principles and information to
• justify the reasons for the Victorian court hierarchy in actual and/or hypothetical scenarios.
determining criminal cases, including specialisation
and appeals
2
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1
CHAPTER 1
Key concepts of the Victorian criminal
justice system
LESSONS KEY KNOWLEDGE
1A Key principles of the criminal justice system • the distinction between summary offences and
indictable offences
1B Rights of an accused • key principles of the criminal justice system, including
1C Rights of victims the burden of proof, the standard of proof, and the
presumption of innocence
• the rights of an accused, including the right to be tried
Image: Alex Cimbal/Shutterstock.com without unreasonable delay, the right to silence, and the
right to trial by jury
• the rights of victims, including the right to give evidence
using alternative arrangements, the right to be informed
about the proceedings, and the right to be informed of
the likely release date of the offender
3
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STUDY DESIGN DOT POINTS
• the distinction between summary offences and indictable offences

• key principles of the criminal justice system, including the burden of proof, the
1A 1B 1C
Image: Fer Gregory/Shutterstock.com
It is day 100 of Legal Studies Survivor and

the competition is heating up. For the next
3.1.1.1 An introduction 3.1.1.4 The burden of proof
to criminal law in criminal law
identify the key concepts of the criminal
justice system or risk eviction. Will the 3.1.1.2 Summary offences 3.1.1.5 The standard of proof
in criminal law
competitors successfully uncover the core
principles that ensure the efficiency and 3.1.1.3 Indictable offences 3.1.1.6 The presumption of innocence
effectiveness of the legal system? Or will
3.1.1.3.1 Indictable offences
this be the end of their time on the island?
heard summarily
USEFUL TIP Lesson introduction

Remember, the two parties in a criminal There are various key principles that underpin criminal law, and these ensure
case are known as the prosecution justice can be achieved. Key principles include the presumption of innocence,
and the accused. The prosecution the burden of proof, and the standard of proof. The criminal justice system
represents the Commonwealth, or a distinguishes between various types of offences and has different processes for
case against the accused. On the other
charged with a criminal offence.
An introduction to criminal law 3.1.1.1

The Victorian criminal justice system plays an important role in enforcing criminal
KEY TERMS
Criminal law an area of law that appropriate consequences. Criminal law protects society through statute law, such as
participate in illegal conduct. Crimes are acts, or failures to act, that cause harm, by violating a law, and are
an existing law, causes harm to an considered a crime, even if it causes harm. For example, talking poorly about
individual, or society as a whole, and someone behind their back is not necessarily illegal but it can be considered
is punishable by law. immoral. However, if someone is actively discriminating against another person
based on their background or personal characteristics, this is considered a crime
LEGAL VOCABULARY under various Australian anti-discrimination laws.
also known as legislation.
Sanction a penalty imposed by a court
on an offender when they plead guilty
or are found guilty of a crime.
4 Chapter 1: Key concepts of the Victorian criminal justice system

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1A THEORY
1. A crime is reported 2. An investigation 3. The offender 4. Less serious offences 5. A series of 6. The end of a case,
is commenced by is charged are prosecuted by the court processes where, if an accused
the police police and more occur, including individual is found
serious criminal pre-trial procedures, guilty, the judge
offences are passed a trial, sentencing, will impose an
on to the Office of and appeals appropriate sanction
Public Prosecutions
(OPP) for prosecution
Figure 1 An overview of the processes involved in a criminal case in Victoria
Summary offences 3.1.1.2 KEY TERM
Summary offences are less severe criminal offences that are generally heard in the Summary offence a minor criminal
Magistrates’ Court. Sanctions for summary offences are usually small fines, but can offence usually heard in the
also include short periods of imprisonment. There is no right to a trial by jury for Magistrates’ Court.
summary offences as they are less serious criminal matters. Most summary offences
that are committed can be found in the Summary Offences Act 1966 (Vic) and various
LEGISLATION
other statutes. Examples of summary offences include:
• common assault Summary Offences Act 1966 (Vic)
• disorderly conduct
• driving offences
LESSON LINKS
• damage to property.
Magistrates’ Court, County Court, and
DEEP DIVE Supreme Court in 2D The Victorian
court hierarchy and criminal cases.
Sanctions for speeding You will learn more about sanctions in
In Victoria, individuals who commit a minor offence, such as speeding, will receive 3B Types of sanctions.
an infringement notice requesting them to pay a fine. However, failure to pay for the
infringement notice can lead to more serious consequences, with the final stage leading
to the arrest of the individual and a possible court hearing. Therefore, the fines system
in Victoria operates in a way that punishes individuals for their offending in an informal LEGAL VOCABULARY
manner, like issuing a fine, but may also lead to a more serious court hearing if the Infringement notice a penalty issued
individual fails to comply. to an offender when they commit
Adapted from ‘About infringements’ (Fines Victoria, 2023)
an offence, such as speeding, that
warrants a fine.

Indictable offences are more severe criminal offences that are heard by a judge
and/or jury in the County or Supreme Court. Sanctions for indictable offences are
more severe than those imposed for summary offences, including longer sentences
of imprisonment and larger fines. Unless otherwise stated, all offences in the Crimes LEGISLATION
Act 1958 (Vic) are indictable offences. Examples of indictable offences include:
• murder
• rape
• kidnapping KEY TERMS
• culpable driving causing death.
Indictable offence a criminal offence
that is serious in nature and generally
WANT TO KNOW MORE? heard by a judge and jury in the County
or Supreme Court.
In Victoria hundreds of thousands of crimes are committed each year. You can find
out more about the statistics and types of crimes being committed by searching
‘Crimes Statistics Agency - Recorded offences’ and clicking the Crime Statistics Agency
(2023) webpage.

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Indictable offences heard summarily 3.1.1.3.1

Indictable offences heard summarily are less serious indictable offences that
KEY TERMS
can be heard, similar to summary offences, in the Magistrates’ Court. An accused
1A THEORY
Indictable offences heard summarily person will generally choose to have their offence heard summarily where possible
a subset of indictable offences that can as it is less costly, less time-consuming, and the maximum penalties imposed in the
be heard in the Magistrates’ Court in a Magistrates’ Court are less severe. During a committal proceeding, the magistrate
similar manner to a summary offence. will determine whether an offence can be heard summarily.
Committal proceeding a hearing in An indictable offence may be heard summarily where:

the Magistrates’ Court that is used to • the offence is not punishable by a maximum term exceeding 10 years
determine whether there is sufficient of imprisonment
evidence against an accused person,
charged with an indictable offence, for • the court agrees and determines it is appropriate
a trial in a higher court. • the accused consents to having their offence(s) heard summarily.
Indictable offences that can be heard summarily are listed in the Criminal Procedure
LEGISLATION Act 2009 (Vic). For a single offence, the maximum term of imprisonment that can
be imposed by a magistrate is two years, whilst two or more offences can result
Criminal Procedure Act 2009 (Vic) in up to five years in prison.
Table 1 Distinction between summary and indictable offences
Type of offence Summary offences Indictable offences Indictable offences

heard summarily
Nature of the offence Minor criminal offence Serious criminal offence Less serious
indictable offence
Court(s) Magistrates’ Court County or Supreme Court Magistrates’ Court
Availability of a trial by jury No Yes No
Statutes related to the offences Summary Offences Crimes Act 1958 (Vic) Criminal Procedure Act
Act 1966 (Vic) 2009 (Vic)
Name of the final hearing Hearing Trial Hearing
Examples • Driving offences • Murder • Theft and burglary

• Disorderly conduct • Rape (if the value of the
property stolen does
• Common assault • Kidnapping
not exceed $100,000)
• Damage to property • Culpable driving
• Recklessly causing
causing death
serious injury
• Property damage
The burden of proof in criminal law 3.1.1.4

The burden of proof refers to the responsibility of proving the facts of a case.
KEY TERM
In a criminal case, the prosecution has the burden of proof. Given the prosecution
Burden of proof the responsibility is pursuing the case against the accused, the onus is on them to prove the facts and
of a party to prove the facts of a case. charges against the accused. In some circumstances, the burden of proof will be
reversed, such as in cases where the accused raises the defence of self-defence
or in certain drug possession cases.
HYPOTHETICAL SCENARIO
Benito bears no burdens

Benito has been charged with kidnapping and aggravated burglary. If the case proceeds
to trial, it will be the prosecution’s responsibility to prove that Benito is guilty of these
crimes and present the evidence associated with the case. It is not Benito’s responsibility
to try to prove his own innocence.
Figure 2 An accused person, like Benito,

does not have the burden of proof

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The standard of proof in criminal law 3.1.1.5 KEY TERMS
The standard of proof refers to the strength of the evidence required to Standard of proof the degree to
1A THEORY
prove the guilt of the accused. The standard of proof required in criminal which the facts of a case must
be proven in court.
proceedings is beyond reasonable doubt. This means the judge or jury must have
no reasonable doubt, based on the evidence presented, that the accused is guilty. Beyond reasonable doubt
the standard of proof applicable in
If there are any logical or reasonable conclusions that do not find the accused
criminal proceedings which requires
responsible for the crime(s), the case against them has not been proven beyond the prosecution to prove that there is
reasonable doubt and therefore, they cannot be found guilty. no reasonable doubt that the accused
is guilty of the crime(s) they have been
charged with.
Eenie, meenie, miney… moe?

Moe was charged with arson after his neighbour accused him of starting a fire that USEFUL TIP
engulfed an abandoned house at the end of their street. The neighbour claimed they It is common for SACs and exams to
saw ‘a tall figure wearing a hoodie’ running away from the crime scene and believed ask you to distinguish between the
it was Moe, as he had seen Moe wearing a hoodie earlier that day. However, while burden of proof and the standard
testifying on the stand, the neighbour admitted they did not see the face of the alleged of proof. Therefore, ensure you can
offender and had no other reason to believe Moe was the arsonist. Therefore, there identify and explain the concepts
was a reasonable doubt as to whether Moe committed the crime and a likelihood that individually and also provide one key
another individual was responsible. difference between them. Remember
to reference any provided information
or scenarios in your answer.
The presumption of innocence 3.1.1.6

The presumption of innocence is the right for all accused persons to be presumed LEGISLATION
innocent until it is proven, beyond a reasonable doubt, that they are guilty. Whilst
this is an old common law principle, it is also protected under section 25 of the Charter of Human Rights and
Responsibilities Act 2006 (Vic)
Charter of Human Rights and Responsibilities Act 2006 (Vic).
There are several features and principles of criminal justice that uphold the
presumption of innocence, including: KEY TERM
• the right to silence; an accused person does not have the obligation to answer
Presumption of innocence the right
any questions and cannot be pressured to give evidence to prove their innocence. for all accused persons to be presumed
• the right to apply for bail; unless there are reasonable grounds for denying bail, innocent until it is proven otherwise
like if the accused is a threat to the safety of the community, they have the right beyond reasonable doubt.
to receive bail while awaiting their trial.
LEGAL VOCABULARY
• the right to appeal a case; if an accused believes they have been wrongfully
convicted, they have the right to appeal their case and uphold their innocence. Bail the process whereby a person
who has been arrested and charged
• prior convictions not being revealed until the sentencing hearing; this is to ensure with a crime is released from police
the jury, if one is used, is not subconsciously prejudiced against the accused before custody and allowed in the community
the case is presented. whilst awaiting their trial.
Conviction an outcome of criminal
proceedings in which the accused
pleads guilty, or is found guilty by
Prior convictions the court.
The right
Bail Appeals are not revealed
to silence
until sentencing
LESSON LINKS
You will learn more about the right to
Figure 3 Features and principles that uphold the presumption of innocence silence in 1B Rights of an accused.
You will learn more about appeals in
The burden of proof
The prosecution has the burden of proof, which means
2D The Victorian court hierarchy and
the accused is not responsible for proving themselves innocent. criminal cases.
The presumption
of innocence The standard of proof
There is a high standard of proof, beyond reasonable doubt,
in criminal cases which ensures the accused is only found
guilty if the evidence proves there is no reasonable doubt
the accused committed the crime(s).
Figure 4 The relationship between the presumption of innocence and the burden and standard of proof

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Lesson summary
In the criminal justice system, criminal offences are outlined and categorised in
1A QUESTIONS
various sections of the law based on their severity.
Types of criminal offences
Summary offences Indictable offences

• Minor criminal offences • Serious criminal offences
• Example: Driving offences • Example: Murder
• Heard in the Magistrates’ Court • Heard in the County or Supreme Court
with a judge and/or jury
Indictable offences heard summarily

• Indictable offences heard like summary offences in the Magistrates’ Court
• Example: Theft (value under $100,000)
• Offence must be eligible and the court and the accused must consent
Figure 5 Summary of the types of criminal offences
• The burden of proof is the responsibility of proving the facts of the case.
In criminal proceedings, this responsibility rests with the prosecution.
• The standard of proof refers to the strength of evidence or the degree to which
a case must be proven. This is ‘beyond reasonable doubt’ in a criminal case.
• The presumption of innocence is the right for all accused persons to be
presumed innocent until it is proven they are guilty beyond reasonable doubt.
1A Questions
Check your understanding
Question 1
Tick the box to indicate whether each of the following statements are true or false about crimes.
Statement True False

I. Crimes are acts or omissions that violate an existing law and can cause harm.
II. Immoral behaviour, like leaving a hate comment, is considered a crime.
III. Imprisonment is the only sanction available for crimes.
IV. Laws outlining different crimes seek to protect society and punish those who engage
in illegal activity.
V. Crimes and their sanctions are outlined in the Crimes Act 1958 (Vic).
Question 2
Summary offences are minor criminal offences.
A. True
B. False
Question 3
Which of the following statements are requirements for an indictable offence to be heard summarily?
(Select all that apply)
A. The victim of the crime consents.
B. The offender is eligible as the offence is not punishable by a term exceeding 10 years of imprisonment.
C. The Magistrates’ Court has room in its daily schedule.

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D. The court agrees and determines it is appropriate.

E. The accused consents.
1A QUESTIONS
Question 4
Indictable offences are generally heard in the County or Supreme Court and can be found in the:
A. Indictable Offence Act 1958 (Vic).
B. Crimes Act 1948 (Vic).
C. Criminal Act 1958 (Vic).
Question 5
Fill in the blanks with the following terms:
prosecution responsibility facts standard of proof
The burden of proof refers to the of a party to prove the facts of a case. In a criminal case, the burden
of proof rests with the . On the other hand, the , which is beyond reasonable
doubt in criminal cases, refers to the degree to which the of the case must be proven in court in order
to find the accused guilty.
Question 6
One way the presumption of innocence is upheld is through the accused’s right to silence, which is guaranteed
under the Charter of Human Rights and Responsibilities Act 2006 (Vic).
A. True
B. False
Question 7
Which of the following statements are correct about indictable offences heard summarily?
A. It can be cost and time effective to have an offence heard summarily.
B. There can be less severe penalties as the maximum imprisonment sentence in the Magistrates’ Court
for one offence is two years.
C. The court does not need consent as it is the decision of the accused to have their offence heard summarily.
D. All indictable offences can be heard summarily.
Question 8
An example of an indictable offence that can be heard summarily is:
A. manslaughter.
B. robbery when the value of the stolen goods is less than $100,000.
C. culpable driving causing death.
Question 9
The presumption of innocence is upheld through:
A. a low standard of proof and the prosecution having the responsibility of proving the facts of the case.
B. the responsibility of the accused to prove their innocence beyond reasonable doubt.
C. a high standard of proof where the prosecution must prove the guilt of the accused beyond reasonable doubt.

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Preparing for exams

Standard exam-style
1A QUESTIONS
Question 10 (2 MARKS)
Section 4(a) of the Summary Offences Act 1996 (Vic) states:
‘Any person who - burns rubbish shavings or other materials in a public place shall be guilty of an offence.’
Referring to the section of the Summary Offences Act 1966 (Vic) provided, describe why burning rubbish
shavings or other materials is a summary offence rather than an indictable offence.
Adapted from VCAA 2021 exam Section A Q3b
Acacia has been charged with culpable driving causing death. Their case is set to be heard in the Supreme Court.
Who has the burden of proof in this case and what is the standard of proof?
Kavi has been charged with murder and has been told by a friend that he may be able to have his offence
heard summarily.
a. Outline whether Kavi has been charged with a summary or indictable offence. 2 MARKS
Adapted from VCAA 2020 exam Section B Q1a
b. Is Kavi’s friend correct in saying that he may be able to have his case heard summarily? Justify your answer. 3 MARKS
Explain the relationship between the presumption of innocence and the burden of proof.
Adapted from VCAA 2018 Sample exam Section B Q2a
Olive has been charged with stalking and harassing a well-known celebrity, Harriet. Her legal representation
has advised her that she does not need to prove the facts of the case, assuring her that it can be difficult for
the prosecution to prove guilt in criminal cases due to the high standard of proof.
Distinguish between the burden of proof and the standard of proof with reference to the scenario above.
Extended response
Question 15
Which of the following statements are correct about how the criminal justice system upholds the presumption
of innocence? (Select all that apply)
A. The right to silence ensures an accused is not obliged to answer questions related to the relevant offence,
enabling them to avoid incriminating themselves.
B. The criminal justice system ensures all accused individuals are immediately assumed guilty of their crimes.
C. Judges are likely to be biased and reveal any prior convictions the accused may have to influence the jury.
D. An accused has the right to apply for bail and await trial whilst in the community, unless there are
reasonable grounds to deny their bail request.
E. If an accused believes they have been wrongfully convicted they have the right to apply for an appeal.
Discuss the extent to which the criminal justice system upholds the presumption of innocence.
Adapted from VCAA 2018 Sample exam Section A Q8

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1B Rights of an accused
STUDY DESIGN DOT POINT
• the rights of an accused, including the right to be tried without unreasonable

delay, the right to silence, and the right to trial by jury
1A 1B 1C
‘We not pass upon him, nor [condemn him] but

by lawful judgement of his Peers, or by the Law
3.1.2.1 3.1.2.2 3.1.2.3 of the Land.’— Magna Carta (1215)
The right to be The right to silence The right to trial Centuries ago, the Magna Carta established
tried without by jury that a person accused of a crime maintains
unreasonable delay certain rights, such as the right to be tried
in front of an impartial jury. Despite being
written hundreds of years ago, modern
Australian law upholds similar fundamental
ideas to the Magna Carta, including providing
certain rights of an accused person.
Lesson introduction
In the Victorian criminal justice system, the Charter of Human Rights and LEGISLATION
Responsibilities Act 2006 (Vic), also referred to as ‘the Charter’, aims to protect
the human rights of all Victorians, including those accused of a criminal offence. Charter of Human Rights and
Responsibilities Act 2006 (Vic)
The Charter guides the creation of legislation in Victoria in an attempt to ensure
all laws are compatible with human rights. The Charter has, and continues to,
influence laws so that accused persons are guaranteed certain rights, such as:
• the right to be tried without unreasonable delay
• the right to silence
• the right to trial by jury.
The right to be tried without

unreasonable delay 3.1.2.1
The right to be tried without unreasonable delay ensures an accused person has
KEY TERM
their case heard in a timely fashion. This right is protected by s 21(5) of the Charter
of Human Rights and Responsibilities Act 2006 (Vic). Right to be tried without
unreasonable delay an entitlement
Delays to a trial should only occur when a court considers such delays ‘reasonable’.
accused people possess to have their
A number of factors will be considered to determine what classifies as an case heard in a timely manner unless
‘unreasonable’ delay. Therefore, what is considered ‘unreasonable’ will differ the court considers delays to the trial
between cases. The case of R v Upton [2005] ACTSC 52 found relevant factors to be ‘reasonable’.
in determining the ‘unreasonableness’ of a delay.
Length of the delay Number of offences committed
Complexity of the case

Reasons for the delay
Figure 1 Factors that may be considered by a court to determine if the delay was ‘unreasonable’,
as established in R v Upton
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DEEP DIVE
Statutory protection of the right to be tried without unreasonable delay

1B THEORY
Section 21(5) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) says:
(5) A person who is arrested or detained on a criminal charge—
(a) must be promptly brought before a court; and
(b) has the right to be brought to trial without unreasonable delay; and
(c) must be released if paragraph (a) or (b) is not complied with.
CONTENT WARNING This section mentions content that is sensitive in nature,

The thirteen-year search for justice
In 1995, Harry allegedly assaulted Akilah by punching and strangling him. The Office
LEGAL VOCABULARY of Public Prosecution (OPP) was made aware of the attacks in 1996. However, Akilah
Office of Public Prosecution (OPP) officially made a statement accusing Harry of these attacks, resulting in a notice being
the public body responsible for sent to Harry informing him about the accusation in 2009. Harry’s trial began three
initiating, preparing, and conducting years and four months after he was first made aware of the accusations.
legal proceedings for serious criminal Harry argued that his right to be tried without unreasonable delay had been breached.
matters in Victoria, on behalf of the The court agreed with this argument, determining Harry’s right had been breached,
Victorian community. considering:
• the relatively straightforward nature of the assaults.
• the fact the OPP had possessed information and evidence about the assault against
Akilah for 13 years before launching an official case against Harry.
Table 1 Rationale for the right to be tried without unreasonable delay
USEFUL TIP Accused’s right Rationale
To remember the three different rights The right to be Witnesses’ memories may fade and key aspects of the offence
of an accused covered in the VCE tried without may be forgotten, causing their witness testimonies to be less
Legal Studies Study Design, use the unreasonable delay reliable. This could cause unreliable evidence to be given,
acronym ‘DJs’ to help you recall the which may result in an unfair result for an accused.
key words of each right; delay, jury,
An upcoming trial can cause immense stress on the accused,
and silence.
victims, and their families as the outcome of the criminal case
• Right to be tried without remains unknown, possibly increasing anxiety for all parties.
unreasonable Delay
• Right to trial by Jury If a criminal trial has garnered media attention, increased
delays may make it more difficult for 12, unbiased jury
• Right to Silence
members to be found as most members of the public could
have heard about the case and formed their own opinions
about it prior to the trial commencing.
Long delays before a trial may increase legal costs for an

accused as they may need to hire a lawyer for the entire period
before their trial.
The right to silence 3.1.2.2

The right to silence ensures the presumption of innocence is upheld as an accused
KEY TERM
person’s choice to not speak during questioning or in court cannot be viewed as a
Right to silence a common law right sign of guilt. It also helps an accused to avoid accidentally incriminating themself.
that allows a person to remain silent An accused’s right to silence can be exercised at any time prior to and during a trial,
when questioned or asked to supply including when:
information by a person in authority.
• being confronted by law enforcement at the time of an arrest or when being
accused of committing an offence.
• in a court of law, meaning an accused can choose to remain silent instead
of defending themselves against the prosecution or answering their questions.

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This right has been developed by the courts, making it a common law principle,
LEGAL VOCABULARY
although legislation has also been created to protect this right. Section 89 of the
Evidence Act 2008 (Vic) states that no negative inferences should be drawn about Common law the body of law that is
derived from judicial reasoning and
1B THEORY
an accused because of their failure or refusal to answer one or more questions. As
decisions in past cases.
the burden of proof lies with the prosecution to establish the accused’s guilt beyond
reasonable doubt, an accused can choose to be silent in a criminal trial. By remaining
silent, they are relying on the prosecution’s case not being strong enough to meet the
high standard of proof.
The Jury Directions Act 2015 (Vic) also allows an accused’s lawyer to request that LEGISLATION
a judge makes directions to a jury informing them that the:
Evidence Act 2008 (Vic)
• failure of an accused to give evidence cannot be considered an admission of guilt
Jury Directions Act 2015 (Vic)
by the accused.
• failure of an accused to call witnesses cannot be used as evidence against
the accused.
There are certain exceptions to the right to silence. For example, the Criminal LEGISLATION
Procedure Act 2009 (Vic) sets out that an individual pulled over whilst driving must Criminal Procedure Act 2009 (Vic)
provide their driver’s licence, or their name and address, if asked by police.

CONTENT WARNING This section explores content that is sensitive in nature, You learnt about the standard of
relating to violence. proof, the burden of proof, and
the presumption of innocence in
Taylor-Joycey v R [2021] NSWCCA 29 1A Key principles of the criminal
Facts justice system.
In 2021, a case was brought to the NSW Supreme Court that was attempting to appeal You will learn more about judges’
a previous decision. The accused argued that a lack of directions to the jury about his directions in 2E Judges, magistrates,
right to silence had made his trial unfair. and juries in a criminal case.
The Crown argued that in 2017, Mr Dwyer hit Dylan Taylor-Joycey on the head with a toy
baseball bat outside of a restaurant after Taylor-Joycey had demanded drugs and money
from another person earlier that day. Taylor-Joycey then pulled a machete out of his
backpack and cut Mr Dwyer’s arm. Taylor-Joycey claimed his act was in self-defence after
being ‘hit very hard in the back of the head’.
After the events at the restaurant, police were called by witnesses. That night, police
arrested Taylor-Joycey. He asserted he would exercise his right to silence and did not
reveal any information about the altercation.
Legal issue
In the original trial, the jury returned a guilty verdict for the charge that Taylor-Joycey
had intended to cause grievous bodily harm. Taylor-Joycey appealed this decision,
arguing the jury came to this decision unfairly because the judge had not informed
them that Taylor-Joycey’s silence during his first arrest should not unfavourably impact
the jurors’ decision about his guilt. The accused’s lawyers never requested the judge
to make a direction to the jury that they should not interpret Taylor-Joycey’s silence
as an admission of guilt as he had the right to remain silent.
Decision
The Supreme Court determined the judge was not required to make directions to the
jury about the right to silence. It was the obligation of the accused’s representatives
to seek that a direction be made by the judge.
Significance
This case highlights how the right to silence can be exercised when being arrested,
and emphasises the fact that jurors should not make their decision about whether
an accused is guilty based on their silence.
WANT TO KNOW MORE?

The development of the right to silence as a common law principle dates back to the
16th century. You can find out more about the development of the right to silence
by searching ‘History of the Right To Silence laws’ and clicking the Proctor & Associates
Solicitors & Barristers (2022) webpage.
Back to contents
Table 2 Rationale for the right to silence
Accused’s right Rationale

1B THEORY
The right The right reflects the burden of proof in a criminal case
to silence in that the onus is on the prosecution to prove the accused
is guilty, not the responsibility of the accused to prove their
innocence. Therefore, an accused may remain silent if they
believe the prosecution will be unable to gather sufficient
evidence to prove their guilt.
As being questioned by police may be stressful, an accused

could make statements in the heat of the moment that they
would later regret or seek to amend. These statements could
be used against them, as any evidence gathered at a crime scene,
including statements made by an accused, is admissible in
court. The right to silence ensures an accused is able to refrain
from making such statements that could be incriminating.
The right protects an accused person from an invasion of

their privacy and liberty. If an accused wants to keep certain
information to themselves to retain privacy, they are legally
able to do so.
The right to silence aims to reduce the power imbalance

LEGAL VOCABULARY between the prosecution and the accused. Where an accused
Inadmissible evidence was unlawfully coerced into admitting certain details or
evidence that does not abide confessing to a crime, this may be inadmissible evidence.
by the rules of procedure, and is, Therefore, police and other authorities cannot use their
therefore, prohibited from being powerful position to force an accused, who is more vulnerable
presented to the court. comparatively, into confessing.
DEEP DIVE
Miranda rights
‘You have the right to remain silent. Anything you say can and will be used against you
in a court of law.’
You may have heard this phrase said by police officers on television or you may have had
it said to you personally if being questioned by public transport inspectors, for example.
You may have wondered where this phrase has come from, and what it actually means.
This phrase must be said by police during questioning to comply with each individual’s
‘Miranda rights’ by informing an accused of their right to remain silent. The term ‘Miranda
right‘ is based on a landmark decision in the US Supreme Court case of Miranda v Arizona.
In Australia, there is a similar right protected by law. If approached by police in Victoria
and questioned in relation to an indictable offence, police are obliged to caution you
that you have a right to silence. Police must convey:
• you do not have to say anything
• if you do say something, it may be used as evidence against you
• you may contact a friend or family member and tell them your whereabouts
• you may contact a lawyer for advice before the interview takes place.
Under s 139(1)(c) of the Evidence Act 2008 (Vic), evidence is taken to have been obtained
improperly if ‘before starting the questioning, the investigating officer did not caution the
person that the person does not have to say or do anything but that anything the person
does say or do may be used in evidence’.
Adapted from ‘Miranda Rights: Do you have the right to remain silent in Australia?’ (Criminal Defence Lawyers
Australia, 2023)

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The right to trial by jury 3.1.2.3

The right to trial by jury allows accused persons to have their guilt, for the offence
KEY TERM
1B THEORY
they have been accused of, to be determined by impartial members of the community
rather than a single judge. This right applies to people accused of indictable Right to trial by jury a right to be
offences, who plead not guilty, according to the Criminal Procedure Act 2009 (Vic). tried by unbiased members of the
Therefore, these trials by jury occur in the County Court and Supreme Court – Trial community who have been randomly
selected from the electoral roll.
Division. Trial by jury is also a right enshrined in the Australian Constitution for all
Commonwealth indictable offences.
Who is eligible to be a jury member, how a jury is to operate, and how a jury is to be LEGISLATION
selected is all set out in the Juries Act 2000 (Vic).
Juries Act 2000 (Vic)
Table 3 The requirements for an accused to receive a trial by jury for a criminal offence
Summary offence Indictable offence Indictable offence

with guilty plea with no guilty plea LESSON LINKS
Example Driving 10km over Murder Armed robbery You will learn more about juries in a
of offence the speed limit criminal trial in 2E Judges, magistrates,
and juries in a criminal trial.
Tried by jury? You will learn more about the right
to trial by jury for Commonwealth
indictable offences in 7K The
Who decides Determined by The offender A jury. Constitution as a check on parliament
the verdict? a magistrate or moves straight to a – express protection of rights.
penalised through an sentencing hearing
infringement notice. with a judge alone.
REAL WORLD EXAMPLE
CONTENT WARNING This section explores content that is sensitive in nature that relates
to violence and death.
Woman behind bars over lethal biscuit
In September 2020, Rebecca Payne ground up a sedative drug called Temazepam,
laced biscuit icing with the substance, and fed the biscuit to her husband. Once he fell
unconscious, she wrapped his body into a blanket and placed it into a freezer. This act
was brought on by years of abuse Payne had faced at the hands of her husband, with
the woman revealing during the court proceedings that her finances, weight, medical
appointments, and showers were all regulated by her husband at the time.
Despite pleading not guilty, in May 2023, a jury in the Supreme Court of Victoria found
Payne guilty of murdering her husband. It took the jury two days of deliberation to reach
Image: Bozena Fulawka/Shutterstock.com
this guilty verdict. As a result of Payne being found guilty, Judge Incerti handed Payne
a sentence of 16 years imprisonment with a non-parole period of 10 years. Figure 2 A woman who killed her husband
by poisoning a biscuit’s icing was sentenced
Adapted from ‘Rebecca Payne sentenced to 16 years’ jail for murdering husband with drug-laced biscuits’ (Clark, 2023) to 16 years in prison
Table 4 Rationale for the right to trial by jury
Accused’s right Rationale LESSON LINKS

The right to trial A jury is an impartial and unbiased decision maker in a criminal You learnt about indictable offences
by jury case. Jurors are required to have no connections to either the in 1A Key principles of the criminal
prosecution or the accused and cannot have prior knowledge justice system.
about the facts of the case. Therefore, a jury should represent You will learn more about the Country
a cross-section of the community and not be biased towards Court and the Supreme Court in 2D
either party. The Victorian court hierarchy and
criminal cases.
The presence of a jury will likely result in lawyers using clear,
plain English instead of legal jargon when presenting evidence.
This enables all parties of the case, including the jury, the
accused, and the victim, to understand the proceedings with
greater ease.
Continues →
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Table 4 Continued
Accused’s right Rationale

1B THEORY
The right to trial For an accused to be found guilty, usually a unanimous

by jury verdict is required. In some cases, the judge can direct the
jury to return a majority verdict, where all but one juror
agrees, but this is only possible in certain circumstances. This
requirement for all (or a majority in some circumstances) of
the jurors to believe an individual is guilty beyond reasonable
doubt aims to prevent accused persons from being wrongfully
convicted of a crime they did not commit.
A jury is likely to more accurately reflect a cross-section

of the community than the judges who adjudicate criminal
cases. This is because the 12 jurors are likely to be of diverse
socioeconomic status, age, ethnicity, occupation, and
experience. Therefore, bias against certain minority groups
may be less prevalent among jurors than a single judge.
Lesson summary
An accused person has several rights in Australia, protected by either statute
or common law. These rights include:
• the right to be tried without unreasonable delay
• the right to silence
• the right to trial by jury.
Table 5 Strengths and limitations of the rights of an accused
Strengths Limitations
• An accused person does not have to endure • A trial that is delayed for years may still be
prolonged periods of stress and anxiety that may considered ‘reasonable’ if the delay was a result
be experienced if having to wait a long time for of actions of the accused, such as their alleged
The right to be
their trial to commence. crime being particularly complex, thus requiring
tried without a range of evidence to be collected against them.
• Witnesses are more likely to remember key facts
unreasonable
of the events they saw if a criminal trial takes place • Considering a trial may be delayed for extended
delay
in a reasonable time after the events in question periods if reasonable, the memory of witnesses may
occurred, promoting fairness as evidence presented fade, or a witness may pass away, preventing a fair
is therefore, more reliable. trial from being achieved.
• The presumption of innocence is upheld by the • Although a judge may direct a jury that an
right to silence as an accused is presumed innocent, accused’s silence is not an indicator of their guilt,
and does not need to say anything to achieve a jury may still inadvertently believe an accused
this presumption. failing to defend themselves is an indicator of guilt,
• The right to silence can reduce the power imbalance potentially leading to an unfair result.
The right between the prosecution and the accused as police • The right to silence can cause an accused to be
to silence are unable to coerce an accused into making uncooperative with police, possibly resulting in
false confessions. barriers to justice for the victim/s.
• Juries are directed to not make any inferences from • This right is not comprehensive as there are
an accused’s silence, promoting fairness as jurors exceptions to this right, such as when a person
should not believe an accused is guilty just because is pulled over for a suspected driving offence,
they are silent. and must reveal their name or address.
• The use of a jury aims to ensure an accurate • To have a jury decide a case is costly and time
reflection of society is selected at random to consuming for the criminal justice system as jurors
determine an accused’s guilt, therefore promoting must be paid for their participation. Therefore, using
fairness as the jury is inherently impartial when a jury to determine an accused’s guilt may place strain
making determinations. on the justice system and cause delays, impeding the
The right to ability of the right to trial without unreasonable delay
• A jury will encourage lawyers to speak clearly
trial by jury to be satisfied for all accused persons.
and avoid using legal jargon when presenting
their evidence, promoting access as jurors and the • Juries may not always be impartial as they could
parties can gain a better understanding of the court be swayed by preconceived biases or emotions,
proceedings. deciding an accused’s guilt based on these factors
as opposed to just the plain facts of the case.

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1B Questions
1B QUESTIONS
Question 1
Which of the following are rights of an accused? (Select all that apply)
A. The right to silence
B. The right to be presumed guilty unless proven innocent
C. The right to trial by jury for all criminal offences, including indictable and summary offences
D. The right to be tried without unreasonable delay
Question 2
The court has determined that a delay for a criminal trial that exceeds one year will always be considered
an ‘unreasonable’ delay.
A. True
B. False
Question 3
Which of the following are factors a court may consider when determining whether a delay is ‘unreasonable’
in a criminal trial? (Select all that apply)
A. The length of the delay
B. The complexity of the case
C. The degree of expertise of the accused’s lawyer
D. The number of offences committed
Question 4
be tried without unreasonable delay silence
The right to ensures a person is not obliged to supply information to a person
in authority, whereas the right to ensures an accused person’s case is heard
in a timely manner.
Question 5
The right to silence upholds:
A. the presumption of innocence as an accused person is believed to be innocent, and it is the responsibility
of the prosecution to disprove this presumption and establish their guilt.
B. the right for police to interrogate an accused, when they are first arrested, for their initial statement
on an alleged offence so this information can be used in court.
Question 6
Under the Jury Directions Act 2015 (Vic), an accused’s lawyer can request that a judge make directions to a jury
that the failure of their client, the accused, to give evidence:
A. can be judged by a jury as being an admission by the accused that they are guilty.
B. cannot be viewed by the jury as being an admission of guilt by the accused.
Back to contents
Question 7
Which of the following statements are correct about the right to trial by jury? (Select all that apply)
1B QUESTIONS
A. A jury is an impartial and unbiased decision maker in a criminal case as they are randomly selected from
the community, making them an accurate reflection of society.
B. A minimum of six or more jury members must believe an accused is guilty for them to be convicted
of a crime, therefore ensuring accused persons who have committed a crime are held accountable.
C. If a potential jury member has personal connections to either the prosecution or the accused, they will not
be eligible to be a juror. This can improve the ability of a jury to be impartial as no juror is biased towards
a party due to personal connections.
D. The presence of a jury is likely to encourage a lawyer to use clear, plain English instead of legal jargon,
improving the jurors and the accused’s access to understandable legal proceedings.
Question 8
An accused person’s rights are only protected by common law in Australia.
A. True
B. False
Preparing for exams

Standard exam-style
Identify two rights of an accused in the Victorian criminal justice system.
Describe the right of an accused to be tried without unreasonable delay.
Explain how the right of an accused to trial by jury upholds the principle of fairness.
Marika has been accused of stabbing Piper in a jealous frenzy after Piper won a dance competition over her.
She was arrested and is now awaiting trial.
Will Marika be required to give evidence as an accused at the trial? Justify your answer.
Adapted from VCAA 2018 Sample exam Section B Q3b
Extended response
Use the following information to answer questions 13 and 14.
Chirag has been accused of murdering Lucy after his fingerprints were found on the weapon that was
used in her attack. He pleaded not guilty to the charge of murder. During his trial, he remained silent
instead of attempting to disprove the arguments raised by the prosecution. He was tried in front of a jury
that was selected at random from the community.

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Question 13
Tick the box to indicate whether each of the following statements are ways in which fairness may be upheld
or limited in Chirag’s criminal case.
1B QUESTIONS
Statement Upheld Limited
I. Chirag is exercising his right to silence, therefore his lawyer could request that a judge directs
the jury to not make any inferences from his silence and remain impartial.
II. Jury members may still base decisions on their emotions or inherent biases they hold against
certain races, ethnicities, and occupations, instead of solely making their decision according
to the facts, preventing jurors from being impartial.
III. A jury is an impartial decision-making body that would not contain anyone that personally
knows Chirag, therefore ensuring juror members would not have a bias for or against Chirag
before the trial began.
IV. Just because a judge gives a direction to jury members to not view Chirag’s silence
unfavourably, this does not mean they will actually do so. Jury members may view Chirag’s
silence as an admission of guilt, despite the judge’s direction. This may result in jurors basing
their decision on their own ideas and inklings, instead of deciding the result from the facts.
Discuss one of the principles of justice in relation to Chirag’s criminal case.

After receiving her licence, Lucia was accused of committing a driving offence for driving 60 km/hour in a
school zone during school pick-up time. She admitted to driving over the limit because she was in a rush to see
her boyfriend.
Does Lucia have a right to trial by jury? Justify your response.
Explain how the right to silence upholds the presumption of innocence in a criminal case.
Back to contents
1C Rights of victims
• the rights of victims, including the right to give evidence using alternative
arrangements, the right to be informed about the proceedings, and the right
to be informed of the likely release date of the offender
1A 1B 1C
Image: Ground Picture/Shutterstock.com
‘Every victim matters... Too often, the trauma

suffered by victims is then compounded by
their experience of the criminal trial process.’ 3.1.3.1 3.1.3.2 3.1.3.3
—The Honourable Philip Cummins AM The right to give evidence The right to be informed The right to be
(Former Chair of the Victorian Law Reform using alternative about the proceedings informed of the
Commission and former judge in the criminal arrangements likely release date
of the offender
division of the Supreme Court) (2015)
Lesson introduction
In the Victorian criminal justice system, laws exist to uphold the rights of victims
LEGISLATION of crime and their families. The Victims’ Charter Act 2006 (Vic) creates various
rights for victims regarding how crimes are prosecuted and how offenders are
Victims’ Charter Act 2006 (Vic) sanctioned. In addition, the Criminal Procedure Act 2009 (Vic) outlines provisions
Criminal Procedure Act 2009 (Vic) for certain witnesses to give evidence via alternative arrangements, such as via
video link or in a closed court. Three victim’s rights that are crucial to Victoria’s
criminal justice system are:
• the right to give evidence via alternative arrangements
• the right to be informed about proceedings
• the right to be informed of the likely release date of the offender.
The right to give evidence using

alternative arrangements 3.1.3.1
The right to give evidence using alternative arrangements is a right provided to
KEY TERM
victims or witnesses of certain crimes in Victoria where they can give evidence in court
Right to give evidence using alternative in a non-standard way. The purpose of this right is to reduce the trauma associated
arrangements an entitlement for with giving evidence in court and encourage witnesses to provide such evidence.
victims or witnesses of certain crimes This right is provided in the Criminal Procedure Act 2009 (Vic). The provisions
in Victoria to give evidence in court in a specify certain categories of witnesses that are eligible to give evidence in court using
non-standard way that aims to be less
alternative arrangements. This applies to criminal proceedings that relate, wholly or
traumatic for the victim.
partly, to a charge for:
LEGAL VOCABULARY • sexual offences
Family violence offences behaviours • family violence offences
set out in the Family Violence Protection
• summary offences involving the use of obscene or indecent language
Act 2008 (Vic) that include, but are
not limited to, acting towards a family • summary offences involving sexual exposure.
member in a way that is physically,
sexually, emotionally, psychologically,
or economically abusive.

Back to contents
DEEP DIVE
CONTENT WARNING This section explores content that is sensitive in nature, relating
1C THEORY
to family violence.
Family violence offences
Family violence offences include any behaviours meeting the definition of family
violence from the Family Violence Protection Act 2008 (Vic), which includes, LEGISLATION
but is not limited to:
Family Violence Protection Act 2008 (Vic)
• behaviour by a person towards a family member that is:
– physically, sexually, emotionally, psychologically, or economically abusive
– threatening, coercive, or in any way controls or dominates the family member
and causes that family member to feel fear for the safety or wellbeing of that
family member or another person; or
• behaviour by a person that causes a child to hear or witness behaviour described
in the list above
• intentionally damaging a family member’s property, or threatening to do so
• depriving a family member of their liberty, or threatening to do so.
The above list provides examples, but is not a comprehensive list of behaviours that fit
the legal definition of family violence.
You can find out more about laws relating to family violence and access resources that
support victims of family violence by searching ‘Family Violence Law help‘ (2019) and
‘White Ribbon Australia’ (2023) and clicking the relevant links.
Section 360 of the Criminal Procedure Act 2009 (Vic) specifies that the court may
LEGAL VOCABULARY
direct a witness to give evidence in accordance with alternative arrangements.
The purpose of these arrangements is to ensure witnesses feel safe giving evidence, Secondary victimisation instances
reducing the chance of secondary victimisation. Sometimes being involved in criminal where a victim of crime suffers further
harm, not as a direct result of the crime,
legal proceedings can be as traumatic for victims as their experience of the crime itself.
but through negative experiences of the
For instance, victims may feel their integrity is questioned when being cross-examined criminal justice system.
on the witness stand. The adverse effects of this can be further amplified if this occurs Examination-in-chief the questioning
in a public courtroom, particularly if the case is also reported in the media. of a witness in court by the party who
called that witness to give evidence.
Table 1 Alternative arrangements for giving evidence and their effects on the witness
Cross-examination the interrogation
Alternative arrangement Effect in court of the opposing party’s
witness who has already testified,
Giving evidence from outside The witness does not have to physically in order to check or discredit the
the courtroom by closed-circuit face the accused in a courtroom or risk witness’s evidence.
television (CCTV) contact before or after the court session,
therefore reducing the possibility of further
psychological harm.
Using a screen to remove the accused The witness does not have to see the
from the witness’ line of vision accused while they are on the witness
stand in the courtroom.
Allowing a person to be beside the The witness can draw strength from the
witness while they are giving evidence proximity of their support person while
to provide emotional support giving evidence.
Closing the court to everyone except Removing the possibility of a large public
specified people while the witness audience in the courtroom can make the
is giving evidence process less intimidating for witnesses.
Requiring legal practitioners to not These measures can make the process
wear a robe or requesting them to of examination-in-chief and
remain seated during examination- cross-examination less intimidating
in-chief and cross-examination for witnesses.
Back to contents
Table 2 Rationale for the right to give evidence using alternative arrangements
LESSON LINK Victims’ right Rationale

1C THEORY
You learnt about the presumption of The right to The process of giving evidence can be made less traumatic
innocence and the standard of proof give evidence for victims.
in 1A Key principles of the criminal using alternative
As the accused is presumed innocent until proven guilty, and
justice system. arrangements
the prosecution must prove guilt beyond reasonable doubt,
alternative arrangements can improve a witness’s willingness
and ability to give evidence. Therefore, this can improve the
prosecution’s ability to prove their case and achieve justice.
Victims may be less likely to feel intimidated by the accused,

therefore improving their ability to present reliable evidence.

relating to sexual assault.
The abandoned trial
A high-profile CEO was accused of raping Jyah, an intern at the company, after she was
working late one night. The case received substantial media attention and Jyah was supposed
to present evidence at the trial. An initial trial was aborted after jury misconduct, however,
the prosecution subsequently dropped the charges against the CEO, due to concerns for
Jyah’s mental health if she were to be subject to the trauma of intrusive cross-examination
Figure 1 The negative effects on victims
from giving evidence in court were again. In this particular case, the trauma was amplified due to the relentless media attention
demonstrated in Jyah’s case directed at Jyah and the case. Situations, such as Jyah’s, highlight the benefits of alternative
arrangements for certain witnesses when giving evidence.
The right to be informed about the

proceedings 3.1.3.2
Victims of crime have a right to be informed about the proceedings related to
KEY TERM
the case in which they are involved and are therefore, entitled to be provided with
Right to be informed about information, subject to certain limitations. These limitations include whether
the proceedings an entitlement disclosing information to a victim might jeopardise any investigation or adversely
whereby victims can be provided affect any other proceeding. The right to be informed about the proceedings is
with information about the case outlined in the Victims’ Charter Act 2006 (Vic). This information will be provided
they are involved in, subject to
to victims of crime by the Office of Public Prosecutions (OPP) and Victoria Police.
certain limitations.
However, if a victim feels their rights under the Act, such as the right to be informed
LEGAL VOCABULARY about the proceedings, have been breached, they cannot take civil action.
Victims of crime people who have Table 3 Examples of information about the proceedings
suffered physical, mental, or emotional
harm, economic loss, or an infringement Information Examples
of their rights, through acts of crime. The offences the Victims are entitled to information related to:
Office of Public Prosecutions (OPP) accused has been • whether any charges are withdrawn or changed, and the
the public body responsible for charged with reasons why.
initiating, preparing, and conducting
legal proceedings for serious criminal Key developments Victims are entitled to information related to:
matters in Victoria, on behalf of the in the case • whether bail has been granted to the accused
Victorian community.
Bail the process whereby a person • the date and time of the trial
who has been arrested and charged • whether an appeal has been lodged following a trial and,
with a crime is released from police if so, details about the grounds for appeal.
custody and allowed in the community
Outcomes of a trial Victims are entitled to information related to:
whilst awaiting their trial.
or appeal • if the accused has been found guilty or not guilty
• any sanction imposed by the court if the verdict is guilty.

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Table 4 Rationale for the right to be informed about the proceedings

LESSON LINKS
Victims’ right Rationale You will learn more about sanctions in
3B Types of sanctions.
1C THEORY
The right to be Being informed about proceedings against the accused
informed about is important for victims, as victims often have a strong You will learn more about appeals in
the proceedings desire to observe the provision of justice and that the 2D The Victorian court hierarchy and
accused is held accountable, should they be found guilty. criminal cases.
Uncertainty is eliminated, which can minimise the risk

of victims suffering secondary victimisation as a result
of the legal proceedings.
Bobby’s bar brawl BAR Bobby’s Bar

Bobby was at a bar one night and was caught in a physical brawl. He suffered severe cuts
after Justin, his attacker, smashed a beer glass in his face. Justin was charged with assault.
The Victorian police officer who investigated the assault notified Bobby of the charges
laid against Justin and stated he will keep Bobby informed about:
• when a date for the trial is set
• further developments in the case
• the outcome of the case
Figure 2 Bobby has the right to be informed
• any sanction imposed on Justin if he is found guilty. about the proceedings related to Justin’s case
The right to be informed of the likely KEY TERM
release date of the offender 3.1.3.3 Right to be informed about the likely
release date of the offender
Victims of violent crimes have a right to be informed of the likely release date a right provided to victims of violent
of the offender by applying to be registered on the Victims Register. The Victims crimes whereby they can apply to be
Register informs victims about a relevant prisoner or offender. Registered victims registered on the Victims Register
and will be informed about the likely
can also make submissions to have their say about how a crime has affected them
release date of an offender who has
and suggest parole conditions for the Adult Parole Board to consider.
been imprisoned.
According to s 17 of the Victims Charter Act 2006 (Vic), a person can be placed on
the Victims Register if they, or their family member, are a victim of a criminal act
of violence. ‘Criminal acts of violence’ are defined in s 30A(1) of the Corrections Act LEGISLATION
1986 (Vic). Examples of behaviours that fit this definition are shown in Figure 3.
Corrections Act 1986 (Vic)
Family violence Culpable driving
Stalking LEGAL VOCABULARY

Armed robbery
Victims Register a Victorian
Kidnapping government record of victims who have
Assault registered to receive information about
Threats to kill a prisoner or offender.
Murder or Parole the early release of a
manslaughter Sexual offences prisoner, after their minimum term of
imprisonment is served, which is subject
Figure 3 Examples of ‘criminal acts of violence’ to supervision and certain conditions.
In addition to an offender’s release date, a victim on the Victims Register can be
advised of other information, including:
• the length of the offender’s sentence and any changes to the length of
the sentence
• the earliest possible release date
• whether the offender applies for or is released on parole, and any conditions
attached to parole
• if the offender is on parole, whether parole is cancelled
• an offender’s death or escape from prison.
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Table 5 Rationale for the right to be informed of the likely release date of the offender
Victims’ right Rationale

1C THEORY
The right to be Victims of violent offences often have a strong desire to

LEGAL VOCABULARY informed of the likely know the offender is imprisoned, as in many cases, victims
Incarcerated the condition of being release date of the still fear for their safety once the offender is released.
confined in a facility, such as a prison, offender Knowing the offender is still incarcerated can provide
after being found guilty of a criminal comfort to victims. Therefore, the right to be informed
offence. of this information can remove the uncertainty that would
Intervention order a court order that otherwise exist.
restricts behaviour and is designed
to protect a victim, their children, and Victims can take precautions, such as applying for or
their property from someone who extending an intervention order, to prevent the offender
is using violence, threatening them, from contacting them.
or making them feel unsafe.
Victims on the Victims Register also have the right to
make a submission to the Adult Parole Board to express
the effect that the offender’s release may have on them,
and this will be considered when the decision to grant
parole is made.
WANT TO KNOW MORE?

You can find out more about various types of intervention orders, how to apply for one, and
what happens when a person breaches an intervention order by searching ‘Victoria Legal
Aid how intervention orders work’ and clicking the ‘Victoria Legal Aid’ (2022) webpage.
CONTENT WARNING This section mentions content that is sensitive in nature that
relates to family violence.
Tackling the impacts of family violence
Talia was a victim of family violence and her ex-partner, Jack was convicted of assault
alongside a number of other charges in relation to threats and violence towards her.
Jack was imprisoned for two years, with his earliest possible release date being after
he had served 12 months. Talia now lives with a friend and feels safer knowing Jack
Figure 4 As a victim of a criminal act of is behind bars and cannot contact her. Talia is on the Victims Register and will be notified
violence, Talia has the right to be when Jack applies for parole or is released. She is nervous about the time when Jack
informed of the likely release date of her might be released but plans to ensure a current intervention order is in place that prevents
offender Jack from contacting or approaching her.
Lesson summary
In Victoria, victims of crime are granted rights in legislation. These rights include:
USEFUL TIP
• victims of sexual offences, family violence offences, and some summary offences
Explicit application of the principles of
have the right to give evidence using alternative arrangements.
justice to key concepts in this lesson is
not required by the VCE Legal Studies • all victims have the right to be informed about the proceedings in relation to the
Study Design 2024–2028. However, case in which they are involved.
these principles can still be a useful • victims of ‘criminal acts of violence’ have the right to be informed of the likely
framework for assessing the strengths
release date of the offender.
and weaknesses of a right, institution,
process, or legal provision.

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Table 6 The strengths and limitations of victims’ rights
1C QUESTIONS
• The use of alternative arrangements reduces • Not all witnesses meet the eligibility
victim trauma associated with giving criteria to give evidence using alternative
evidence in court. arrangements. Only witnesses involved in
• Alternative arrangements provide witnesses, trials relating to certain offences, such as
who may otherwise be too intimidated to sexual offences, are covered by the provisions
The right to give evidence in the Criminal Procedure Act 2009 (Vic).
participate in a trial, a means by which
using alternative
they can still be involved. This reduces the • Despite being eligible for alternative
arrangements
likelihood of the trial being discontinued due arrangements, some witnesses may still wish
to victims’ fear of giving evidence. to avoid giving evidence.
• Alternative arrangements can ensure victims
do not present unreliable evidence as a result
of feeling intimidated in front of the accused.
• The right to be informed about proceedings • As the criminal justice system is complex,
ensures police and prosecutors keep victims information about proceedings may be
informed and minimise further suffering, confusing to victims if they have no prior
promoting fairness. knowledge and experience of the legal system.
• All victims are provided with information • A victim who feels their right to be informed
The right to be informed
about proceedings, regardless of the type about the proceedings, as outlined in the
about the proceedings
of offence involved, and regardless of their Victims’ Charter Act 2006 (Vic), has been
personal characteristics, promoting equality. infringed, cannot take civil action.
• Information will not be provided to victims
where the disclosure might jeopardise or
prejudice any investigation or proceeding.
• The right to be informed about the likely • Only victims of serious offences can apply to be
release date of the offender can ensure victims on the Victims Register for information about
do not face uncertainty, promoting fairness. the offender. This right is therefore limited
The right to be informed • Being aware of the likely release date of in achieving equality as it does not extend to
of the likely release date an offender can enable a victim to take victims of less serious violent offences.
of the offender precautions, such as applying for or • A victim who feels their right to be informed
extending an intervention order to prevent of the likely release date of the offender, as
the offender from contacting them. outlined in the Victims’ Charter Act 2006 (Vic),
has been infringed, cannot take civil action.
1C Questions
Question 1
The Victims’ Charter Act 2006 (Vic) contains provisions outlining the rights of victims in Victoria’s criminal
justice system.
A. True
B. False
Question 2
In Victoria, a witness must always give evidence, in a trial for a serious crime, in an open courtroom that is
accessible to the public.
A. True
B. False
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Question 3
Which of the following offences does not give rise to witnesses having the right to give evidence using
alternative arrangements in Victoria?
1C QUESTIONS
A. Sexual offences
B. Family violence offences
C. Road traffic offences
D. Summary offences involving indecent language
Question 4
Which of the following witnesses would meet the requirements for being able to give evidence via alternative
arrangements, according to the Criminal Procedure Act 2009 (Vic)? (Select all that apply)
A. Flynn, 6, has witnessed acts of family violence in his home.
B. Celeste was an alleged victim of indecent exposure when walking home from school one day.
C. Dilesh witnessed an armed robbery of a jewellery shop at a shopping centre.
D. Harper has been physically and emotionally abused by their de facto partner on multiple occasions.
E. Kairo was the victim of a car accident and is suing the driver of the other vehicle.
Question 5
Victims Register sentence Victims’ Charter Act 2006 (Vic)
The provides that the police or Office of Public Prosecutions
may give information concerning an offender to a person included on the .
This could include information such as, the length of the .
Question 6
Which of the following statements is correct about a victim’s right to be informed about proceedings involving
the accused?
A. Information about proceedings involving the accused will be provided to victims of crime by the accused’s
legal representative.
B. Victims often have a strong desire for justice to occur, where the accused is held accountable for their
offence, should they be found guilty.
Question 7
The right to be informed about the likely release date of the offender is a right provided to all victims of crime.
A. True
B. False
Question 8
Which of the following victims would not be eligible for the Victims Register?
A. A victim of burglary
B. A victim of kidnapping
C. A victim of stalking
D. A family member of a murder victim

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Question 9
Tick the box to indicate whether the following statements are strengths or limitations of victims’ rights.
1C QUESTIONS
I. As the criminal justice system is complex, information about proceedings may be confusing
to victims if they have no prior knowledge and experience of the legal system.
II. The right to give evidence using alternative arrangements can reduce victim trauma associated
with giving evidence in court.
III. Being aware of the likely release date of an offender can enable a victim to take precautions, such
as applying for or extending an intervention order to prevent the offender from contacting them.
IV. Not all witnesses meet the eligibility criteria for giving evidence using alternative arrangements.
Only witnesses involved in trials relating to certain offences, such as sexual offences, are covered
by the provisions of the Criminal Procedure Act 2009 (Vic).
Preparing for exams

Standard exam-style
Identify two rights of victims in the Victorian criminal justice system.
VCAA 2018 exam Section A Q4a
Seiko was out with her friends in the Geelong CBD when a group of young men drove past and shouted vulgar
comments. One of the young men proceeded to get out of the vehicle and approach Seiko, indecently exposing
himself, while continuing to shout obscenities. The young man was charged with a number of summary
offences relating to this behaviour.
a. Will Seiko be able to give evidence via alternative arrangements? Justify your answer. 3 MARKS
Adapted from VCAA 2018 Sample exam Section B Q3b
b. Besides the right to give evidence via alternative arrangements, explain one other right Seiko has
as a victim of this alleged crime. 3 MARKS
CONTENT WARNING This section mentions content that is sensitive in nature, relating to family violence.
Makani’s ex-husband, Bob, was found guilty of a number of family violence offences against her. At the time
of the offences, Makani genuinely feared for her life. Bob was sentenced to a period of imprisonment but may
be released on parole soon.
Referring to Makani’s situation, justify how the right to be informed of the likely release date of the offender
is beneficial for victims. Provide two reasons in your response.
Extended response
Question 13
Tick the box to indicate whether the following statements are strengths or limitations of the Victorian criminal
Back to contents
justice system in protecting victims of crime.

1C QUESTIONS
I. Victims of serious crimes have a right to be provided with information about the case in which
they are involved, enabling them to observe the provision of justice.
II. Only victims of some serious offences can apply for the Victims Register to be informed about
the offender’s release date.
III. The right to give evidence via alternative arrangements is only available to witnesses giving
evidence in trials for sexual offences, family violence offences, and summary offences involving
sexual exposure or the use of obscene or indecent language.
IV. The Criminal Procedure Act 2009 (Vic) contains provisions that allow some categories of
witnesses to give evidence using alternative arrangements, enabling the process to be less
traumatic for victims.
V. Victims of serious crimes have a right to be notified of the likely release date of the offender.
‘Following a crime, victims are supported and protected adequately in the Victorian criminal justice system.’
Discuss the extent to which you agree with this statement and justify your response.

Nick pressed charges against his ex-girlfriend Leina, for the indictable offence of aggravated assault. At the
conclusion of her trial, Leina was sentenced to a term of imprisonment but is likely to be released early on
parole due to her good behaviour in prison.
Describe one right that Leina had as an accused person, prior to being convicted, and describe one right that
Nick has as a victim.
Question 16
Which of the following statements supports the right to give evidence using alternative arrangements?
A. Victims of family violence and sexual offences must face the accused in court when giving evidence
to ensure justice is served.
B. A victim’s evidence could be crucial for the prosecution to prove an offender’s guilt beyond reasonable
doubt, so it is important that this evidence is heard by the judge and/or jury.
C. Victims of crime who have been traumatised by their experience are more likely to give evidence
as a witness in the accused’s trial if they can do so via CCTV without physically seeing the accused.
D. Alternative arrangements enable witnesses who may otherwise be too intimidated to participate in a trial,
a means by which they can still be involved. This can prevent the discontinuation of a trial due to victims’
fear of giving evidence.
E. It is possible for the prosecution to prove the guilt of an accused, even without the victim’s witness
evidence of the alleged crime.
‘Given the standard of proof required in criminal trials, it is crucial that witnesses are able to give evidence
using alternative arrangements, as this can assist the prosecution in proving their case.’
Do you agree with this statement? Justify your answer.

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2
CHAPTER 2
The principles of justice during a criminal case
2A The principles of justice during a criminal case The principles of justice during a criminal case
• the principles of justice: fairness, equality and access
2B Victoria Legal Aid and community legal centres
• the role of Victoria Legal Aid and Victorian community
2C Plea negotiations legal centres in assisting an accused and victims of crime
• the purposes and appropriateness of plea negotiations
2D The Victorian court hierarchy and criminal cases
• the reasons for the Victorian court hierarchy in
2E Judges, magistrates, and juries in a criminal case determining criminal cases, including specialisation
and appeals
2F The parties in a criminal case
• the roles of key personnel in a criminal case, including
2G Legal practitioners in a criminal case the judge or magistrate, the jury, and the parties
• the need for legal practitioners in a criminal case
2H The impact of costs and time – criminal cases
• the impact of costs, time and cultural differences on the
2I he impact of cultural differences
T achievement of the principles of justice.
– criminal cases
Image: Brian A Jackson/Shutterstock.com
29
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2A The principles of justice during

a criminal case
2A 2B 2C 2D 2E 2F 2G 2H 2I
Image: Kaspars Grinvalds/Shutterstock.com
‘What is justice? For different people at 3.1.4.1 3.1.4.2 3.1.4.3

different times it means different things.’ Fairness during Equality during Access during
—The Honourable Marilyn Warren AC, a criminal case a criminal case a criminal case
Former Chief Justice of the Supreme Court
of Victoria (2014)
There is no universal definition of ‘justice’
or conversely ‘injustice’. Therefore, a ‘just’
outcome for one person may be different
to that of another.
Lesson introduction
The principles of justice underpin Victoria’s criminal justice system and assist in
determining whether justice has been achieved in particular cases. The principles
aim to ensure the justice system remains accessible for all individuals, everyone
is treated equally, and a fair trial occurs. There are various legal processes and
procedures that exist in the criminal justice system to uphold the principles of
fairness, equality, and access.
Fairness during a criminal case 3.1.4.1

The principle of fairness is essential in the criminal justice system as each accused
S
ES person is entitled to receive just processes and an impartial hearing. Those affected by
FAIRN
crime are also entitled to participate in the system and have the assurance that justice
is achieved. The Victorian criminal justice system aims to achieve fairness through
a variety of legal principles and procedures.
Table 1 Legal principles and procedures that uphold the principle of fairness
KEY TERM
Legal principle or procedure How it contributes to the achievement of fairness
Fairness the principle that all people
can participate in the justice system The presumption This guarantees that a person accused of a crime
and its processes should be impartial of innocence does not have to prove their innocence, but rather,
and open. the prosecution has to prove the accused is guilty
beyond reasonable doubt.
The burden of proof lies with Given the prosecution is pursuing the case against
USEFUL TIP the prosecution the accused, the onus is on them to prove the
In your responses to exam and SAC facts and claims against the accused. It is not the
questions, avoid using the word ‘fair’ responsibility of the accused to prove their own
to define ‘fairness’. Instead, try using innocence, as this would be unfair.
words such as ‘impartial’ or ‘just’,
The standard of proof The standard of proof is high in criminal cases as
and when explaining how an element
in criminal cases the prosecution must prove the accused is guilty
of the justice system can uphold the
principle of fairness, refer to other beyond reasonable doubt. This ensures an accused is
words from the definition, such as only found guilty when the magistrate, judge, or jury
‘participation’ and ‘open processes’. does not have any reasonable doubt that the accused
committed the crime.
Continues →
30 Chapter 2: The principles of justice during a criminal case

Back to contents
Table 1 Continued
Legal principle or procedure How it contributes to the achievement of fairness
2A THEORY
Most hearings are open The public nature of criminal trials ensures the
to the public presentation of facts is open and accessible to allow
all members of the community to participate in
the justice system. This provides transparency and
accountability for the legal decisions made in the
court system.
A right to seek As the law is highly complex, all accused

legal representation persons have a right to seek and utilise legal
representation to present their case in the best
light possible. However, this usually comes with
a financial burden.
An accused person has An accused person has the right to defend a

the opportunity to present criminal charge by disproving the prosecution’s
their case case, as well as the opportunity to present their own
evidence and witnesses if they choose.
Resolution of cases with The criminal justice system strives to minimise delays
minimal delay to reduce stress and anxiety for victims and their
families, witnesses, and accused persons awaiting
trial. As delays may impact the reliability of evidence,
due to lost or forgotten facts, minimising delays
ensures a just outcome to the case.
An independent A judge, magistrate, and jury must be impartial and

decision-maker unbiased, basing their decisions solely on the facts
of the case.
The characteristics of When determining an appropriate sentence for the

an offender and the offender, the court must consider certain factors.
circumstances surrounding For example:
the crime are considered • a young, first-time offender who has shown
when sentencing remorse should be treated differently to
a middle-aged criminal with a number
of past convictions.
• the degree to which a victim was impacted by
a crime will be taken into consideration during
sentencing, as the more severe the impact of the
crime was, the higher the sentence received by LEGAL VOCABULARY
the guilty should be. Prejudicial evidence evidence
that may unfairly influence
Prejudicial and irrelevant Prejudicial evidence, such as an accused’s prior a decision-maker to decide on
evidence is not admissible convictions, is not admissible evidence and is an improper or erroneous basis.
in court therefore, not permitted to be presented in court.
Admissible evidence evidence that
This is because it may result in the magistrate,
abides by the rules of procedure and
judge, or jury delivering a guilty verdict based on is, therefore, allowed to be presented
irrelevant factors rather than the facts of the case. to the court.
Victims of some serious Flexibility in the way in which victims can give
crimes have a right to give evidence ensures they can more easily participate in
evidence using alternative the criminal justice system to be heard and validated LESSON LINKS
arrangements in the process.
You learnt about the presumption of
A right to be informed about A right to information reflects the concept of open innocence, the burden of proof, and the
proceedings, and in some processes, a key aspect of fairness. standard of proof in 1A Key principles
cases, about the likely release of the criminal justice system.
date of the offender You learnt about the rights of an
accused in 1B Rights of an accused.
Any victim of a crime A VIS is a way for a victim to communicate the
can make a victim impact adverse effects that a crime has had on them. You learnt about the rights of a victim
statement (VIS), which can By allowing victims the opportunity to communicate in 1C Rights of victims.
be considered by a judge this, it ensures their views are heard and considered You will learn more about victim
when sentencing an offender when sentencing, enabling better victim participation impact statements in 3C Factors
in the justice system. considered in sentencing.

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LEGAL CASE
CONTENT WARNING This section mentions content that is sensitive in nature, relating
2A THEORY
to drugs.
Dietrich v R (1992) 67 ALJR 1
Facts
Dietrich was arrested for allegedly importing 70 grams of heroin into Australia after his trip
to Thailand. He faced four charges related to drug trafficking and pleaded not guilty to each
charge. Dietrich could not afford legal representation and applied for legal assistance from
Image: Gorodenkoff/Shutterstock.com the Legal Aid Commission of Victoria which refused to represent him unless he agreed to
Figure 1 The right to legal representation plead guilty to all charges. Consequently, he represented himself at trial and emphasised
contributes to the achievement of fairness many times to the court that he was facing difficulties in presenting his defence. He was
eventually found guilty in the County Court. Dietrich first appealed to the Supreme Court,
which refused to hear his appeal, and later to the High Court.
Legal issue
In the High Court, Dietrich argued that his trial in the County Court was unfair as he had
not been provided with legal representation.
Decision
The High Court decided that where a very poor accused is charged with a serious criminal
offence and is unrepresented, the trial judge should adjourn the trial, allowing the accused
the opportunity to seek legal representation. However, there is no requirement that the
court provide legal representation to an accused. Therefore, the High Court quashed the
conviction against Dietrich and ordered a new trial.
Significance
The decision made by the High Court, often referred to as the ‘Dietrich principle’, is widely
applied by the Australian Courts. This ensures an accused can request to adjourn the trial
and obtain legal representation so they can present their case in the best light possible,
promoting a fair trial.
Equality during a criminal case 3.1.4.2

The principle of equality ensures all people are treated the same in the criminal
EQU
justice system unless doing so creates disparity or disadvantage, in which case
ALI
measures or mechanisms should be in place to avoid this. Whilst equality is often

TY
associated with equal treatment for all people, it is more accurately described as
promoting an equal result for everyone involved in the criminal justice system.
Therefore, achieving equality may involve treating individuals differently through
KEY TERM the use of equitable policies, such as the arrangement of an interpreter for an accused
who does not speak English. The ability to use an interpreter or translator is not a
Equality the principle that all people right afforded to all accused people, however, this mechanism reduces the likelihood
engaging with the justice system and
of the accused being disadvantaged before the law due to not understanding court
its processes should be treated in
the same way. If the same treatment processes and procedures.
creates disparity or disadvantage,
adequate measures should be NOT EQUAL EQUAL
implemented to allow all to engage
with the justice system without
disparity or disadvantage.
The criminal justice system without The criminal justice system with
measures in place to avoid disparity measures in place to avoid disparity
Figure 2 The principle of equality
The approach of the criminal justice system emphasises the importance of focusing
on equal results rather than equal treatment. In order to prevent discrimination
against individuals who may be disadvantaged, it is essential to establish mechanisms
that acknowledge and accommodate the inherent differences among people. These
mechanisms aim to ensure that the law treats all individuals fairly, regardless of their
personal circumstances or disadvantages.

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2A THEORY
Equal treatment Equality Equitable policies
• treating equal • treating people
everyone outcomes differently
the same for according
everyone to their needs
Figure 3 Understanding the relationship between equal treatment and equitable policies
The principle of fairness is closely linked to equality, as fairness is achieved when

individuals are granted access to resources that enable equal outcomes. Consequently, S EQ
U
access plays a vital role in ensuring equal results, which in turn promotes fairness. It is ES
AL
N
FAIR
ITY
essential to recognise the intrinsic interconnectedness between the principles of justice
in Victoria’s criminal justice system.
Table 2 Legal principles and procedures that uphold the principle of equality
Legal principle or procedure How it contributes to the achievement of equality

The right for all accused Each accused person must be treated the same before
people to be treated the same the law, regardless of personal characteristics such as
age, gender, wealth, language background, ethnicity, ACC E S S
or religion.
Figure 4 The three principles of justice are
The availability Court processes can be confusing for an accused, all interrelated
of interpreters particularly if English is not their first language.
Therefore, each court in the Victorian court
USEFUL TIP
hierarchy can arrange an interpreter in particular
circumstances. This reduces the likelihood of an In your responses, avoid using the
accused being disadvantaged before the law due to word ‘equal’ to define ‘equality’.
not understanding court processes and procedures. Instead, try using words such as
‘the same’ or ‘equivalent’. You should
The right for all victims of All victims of crime are informed about criminal also be able to explain how measures
crime to remain informed proceedings against the accused and provided with to eliminate disparity or disadvantage
about proceedings and the opportunity to be involved in court proceedings, can contribute to equality.
contribute to the such as by providing a victim impact statement,
sentencing process regardless of personal characteristics.
Consistent application The law is applied in the same manner in all cases, LESSON LINKS
of the law regardless of personal characteristics. You learnt about the relationship
The rule of law All members of the community are subject to, and between the three principles of justice
must obey the same standards of behaviour set by in An introduction to Legal Studies.
criminal law. For example, those in more powerful You will learn more about Victoria
positions in society, such as members of parliament, Legal Aid and community legal
police officers, and the very wealthy, are not entitled centres in 2B Victoria Legal Aid and
to preferential treatment by the courts as a victim of community legal centres.
crime or an accused person.
An independent A judge, magistrate, and jury must remain impartial

decision-maker and unbiased, basing their decisions solely on the
facts of the case and not the characteristics of the
victim or the accused.
A right to seek As the law is highly complex, all accused persons

legal representation have a right to utilise legal representation. Where an
accused person cannot afford legal representation,
they may be eligible for free or low-cost
representation through Victoria Legal Aid (VLA) or
community legal centres (CLCs). This is an example
of how a measure can be put in place to avoid
disadvantage, and therefore contribute to equality.

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Access during a criminal case 3.1.4.3

The principle of access ensures all people can engage with the processes of the justice
2A THEORY
system with few barriers. This principle is essential in the criminal justice system as it
promotes an accused’s ability to understand their legal rights and the various processes
AC involved in their case. The Victorian criminal justice system aims to achieve access
CESS
through a variety of legal principles and procedures.
Table 3 Legal principles and procedures that uphold the principle of access
KEY TERM
Legal principle or procedure How it contributes to the achievement of access
Access the principle that all people
should be able to engage with the The availability of free legal VLA and CLCs provide free legal information
justice system and its processes information for all for all, enabling all people to engage with the justice
on an informed basis. system on an informed basis.
Resolution of cases with Minimising delays reduces stress and anxiety for
minimal delay victims and their families, witnesses, and accused
persons awaiting trial. As delays may impact the
reliability of evidence, due to lost or forgotten
facts, minimising delays ensures a just resolution
of the case.
The right for victims of crime All victims of crime are able to engage with the
to remain informed about justice system as they are provided with the
proceedings and to contribute opportunity to be involved in court proceedings,
to the sentencing process such as by providing a victim impact statement.
The availability of legal aid Institutions, such as VLA and CLCs, provide free
legal assistance to those in the community who
need it most. This enables these individuals to
better understand legal processes and procedures
and in turn, engage with the justice system on an
informed basis.
Most hearings are open The public nature of criminal trials ensures the
to the public presentation of facts is accessible to all members of
the community. This also allows all to engage in the
justice system and observe the process of justice.
The availability of interpreters Court processes can be confusing for an accused,

particularly if English is not their first language.
LESSON LINKS Therefore, each court in the Victorian court
You will learn more about the role of hierarchy can arrange an interpreter in particular
judges in 2E Judges, magistrates, and circumstances.
juries in a criminal case. The right to a trial by jury for The right to a jury trial allows the community
You will learn more about the Victorian all serious criminal offences to engage with the justice system by determining
court hierarchy in 2D The Victorian whether an accused charged with a serious criminal
court hierarchy and criminal cases. offence is guilty or not.
REAL WORLD EXAMPLE
Translated victim impact statement devastates courtroom
In May 2023, a university lecturer was sentenced to a 24-year term of imprisonment
after stabbing his wife to death the year prior during an altercation between the couple.
At the trial, the Supreme Court of Victoria heard statements from the family of the victim.
The victim’s mother described the loss of her child as being ‘like a spear piercing through
[her] heart’. Considering the victim and her family were from China, this victim impact
statement was translated using the free translation services arranged by the court. The
Image: Salivanchuk Semen/Shutterstock.com use of translator services allowed those closest to the victim to express their grief over
Figure 5 A university lecturer was sentenced her death, compelling the court to sanction the offender to the 24-year prison sentence.
to imprisonment for the murder of his wife after Translators therefore helped the victim’s family to access justice for her.
a translated victim impact statement shared
the devastation caused by the victim’s death Adapted from ‘Deakin lecturer Adam Brown fatally stabbed wife Chen Cheng after childcare dispute, court told’ (Silva, 2023)

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Lesson summary
Overall, the principles of justice are an essential aspect of the Victorian criminal
2A QUESTIONS
justice system:
• Fairness requires processes to be impartial and open, therefore enabling a just
outcome to a criminal case.
• Equality requires all individuals engaging with the justice system to be treated
the same, regardless of personal characteristics such as gender or religion.
However, if the same treatment creates disparity or disadvantage, adequate
measures must be taken to prevent this.
• Access requires all individuals to be able to engage with the justice system with
as few barriers as possible.
There are a range of legal processes and procedures within the Victorian criminal
justice system that are designed to uphold these principles. All three principles are
purposefully related, and when they work in harmony, act to deliver just outcomes
for all who interact with the criminal justice system.
2A Questions
Question 1
The three principles of justice are:
A. fairness, equality, and access.
B. participation, access, and fairness.
Question 2
Which of the following does not promote the achievement of fairness in the criminal justice system?
A. An accused person has a right to seek legal representation.
B. An accused person may not be able to afford legal representation and may not be eligible for legal aid.
C. The characteristics of an offender and the circumstances surrounding the crime are considered
when sentencing.
Question 3
fairness equality
The principle of is upheld when all people are able to engage with the justice system
without disparity or disadvantage.
Question 4
Which of the following statements promotes the achievement of equality in the criminal justice system?
A. The judge and jury must not discriminate against either the prosecution or accused based on their
personal characteristics, such as race, gender, or ethnicity.
B. An accused is able to contribute to the sentencing process by providing a victim impact statement.
C. An accused is provided with an interpreter by the court if they are unable to speak or understand English.
D. A police officer charged with a crime is not entitled to preferential treatment by the courts.
E. The judge presiding over a case is allowed to have a bias towards the accused.

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Question 5
By understanding their legal rights and the processes involved in their case, an accused likely has greater
2A QUESTIONS
access to the justice system.

A. True
B. False
Question 6
Which of the following statements promotes the achievement of access in the criminal justice system?
A. Institutions, such as Victoria Legal Aid (VLA) and community legal centres (CLCs), provide free legal
assistance to those who need it most.
B. The public nature of criminal trials ensures the presentation of facts is accessible to all members
of the community.
C. As the law is highly complex, all accused persons have a right to seek legal representation to better
understand court processes and procedures.
D. The courts have no obligation to provide legal representation to a self-represented accused.
Question 7
Fairness and equality are inherently linked as fairness is achieved when individuals are granted access
to resources that enable them to attain equal outcomes.
A. True
B. False
Preparing for exams

Standard exam-style
Birrani was charged with manslaughter. He speaks very little English and is not familiar with the Victorian
criminal justice system. As he cannot afford legal representation, he applied for legal aid, but his application
was rejected. As a result, he is planning to plead not guilty and is representing himself at trial.
Referring to the source material, explain why Birrani’s decision to represent himself may not achieve equality
or fairness.
Theo is a recent victim of armed robbery. Throughout the trial, he was not informed of the proceedings and his
case experienced significant delays due to the court’s large backlog of cases, consequently causing feelings
of stress and anxiousness for Theo.
Describe two reasons why Theo’s trial may not achieve access.
Extended response
Use your answer from question 10 to support your response to question 11.
Axel has pleaded not guilty to three charges related to the possession of drugs and is due for trial in the
Victorian County Court. Axel cannot afford legal representation and is representing himself. He is concerned
the prosecutor’s experience and friendliness with the judge may negatively impact his case. In addition,
Axel does not know how to properly present his evidence and is worried he might say something that
incriminates himself.

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Question 10
2A QUESTIONS
justice system in achieving the principles of justice for Axel.

I. Axel may not be able to afford legal representation, consequently impacting his ability to
present his case in the best possible light.
II. The presumption of innocence means the prosecution must prove Axel is guilty, rather
than Axel having to prove his innocence, as the prosecution is the one initiating the claim
against Axel.
III. The judge and jury must remain independent and impartial, treating both the prosecution and
Axel in the same manner.
IV. All accused persons, including Axel, have the right to seek legal representation to better
understand court processes and procedures given the complexity of the law.
V. The judge and jury may have an unconscious bias against either the prosecution or Axel,
potentially leading to an unjust outcome.
Discuss two of the principles of justice in relation to Axel‘s criminal case.

Dewei is a victim of assault. However, he is unsure of his rights within the Victorian criminal justice system.
a. Identify one right of victims in the Victorian criminal justice system. 1 MARK
b. Outline how the right identified in part a. aims to uphold the principle of access. 2 MARKS
Describe the relationship between the burden of proof and the principle of fairness.
Adapted from VCAA 2018 Sample exam Section B Q2a

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2B Victoria Legal Aid and

community legal centres
• the role of Victoria Legal Aid and Victorian community legal centres in assisting
an accused and victims of crime
2A 2B 2C 2D 2E 2F 2G 2H 2I
Image: Tiko Aramyan/Shutterstock.com
Just as a boxer requires boxing gloves to

protect them during a fight, accused people
and victims must be armed with legal 3.1.5.1 3.1.5.2 3.1.5.3 3.1.5.4
knowledge before a legal battle. Victoria The role of The role of The role of The role of
Legal Aid and Victorian community legal Victoria Legal Victoria Legal Aid Victorian Victorian
centres aim to equip accused people Aid in assisting in assisting victims community legal community legal
accused people of crime centres in assisting centres in assisting
and victims with the appropriate legal accused people victims of crime
knowledge and advice to ensure they have 3.1.5.1.1 V
ictoria Legal Aid
the best chance of succeeding at trial. eligibility requirements
LESSON LINKS
Lesson introduction
You will learn more about the court For accused people and victims of crime, the Victorian justice system can appear
hierarchy in 2D The Victorian court rather complex. The hierarchy of courts, plea negotiations, and the burden and
hierarchy and criminal cases. standard of proof are difficult concepts for the average person to understand.
You will learn more about plea Government-funded institutions, such as Victoria Legal Aid (VLA) and Victorian
negotiations in 2C Plea negotiations. community legal centres (CLCs), assist accused persons in understanding their legal
You learnt about the burden rights, striving to create equal access to the law, regardless of personal circumstances.
and standard of proof, summary
offences, and indictable offences in
1A Key principles of the criminal
justice system.
The role of Victoria Legal Aid in assisting
accused people 3.1.5.1
Victoria Legal Aid (VLA) aims to provide free or low-cost legal services to those
KEY TERM
in the community who need it most. It is a government-funded body that provides
Victoria Legal Aid (VLA) legal information, advice, and representation to Victorians. VLA commonly provides
a government-funded agency that services in relation to criminal law and family law matters. It also provides referrals
provides free legal information, to other services that can provide assistance if the matter is not within its main
advice, and free or low-cost areas of concern. The main objectives of VLA are to:
legal representation.
• provide accessible legal aid services, such as by providing individuals with
information and advice over the phone
• provide free or low-cost legal aid services to those who need it the most,
ensuring legal aid is available on an equitable basis in Victoria
• ensure legal aid services are distributed to parties based on their financial
situation, individual circumstances, and seriousness and nature of their problem
• ensure legal aid services are of a high-quality, such as by providing a quality
framework to help lawyers conducting legal aid work
• provide improved access to justice and legal remedies to the community
• conduct research and evaluation to ensure effective legal aid is provided to
individuals based on their different situations.
VLA provides legal services for both victims and accused individuals. Table 1 outlines
the assistance VLA can provide to accused persons based on their eligibility and
subjective circumstances. Whilst legal information is free and available to everyone,
legal advice and representation are provided to those who satisfy set criteria.

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Table 1 The role of Victoria Legal Aid in assisting accused persons
Role Explanation Eligibility requirements
2B THEORY
Provide free General legal information Free and accessible
legal information is readily available on the to everyone.
VLA website, in brochures,
Employment
s and over the phone. These

ence
s
resources aim to educate the

Fine
community on legal matters,

c off
criminal law procedures, and

Traffi
provide general legal support.

Resources are also available
in many different languages.
Provide free VLA offers advice regarding Legal advice tailored to a WANT TO KNOW MORE?
legal advice court procedures and particular matter is only
VLA also coordinates a ‘Help Before
proceedings that will apply provided to eligible accused
Court’ program which can assist
Lawyer to a specific case. Advice can persons, generally based
accused individuals prepare for their
be provided over the phone, on their income. VLA
case by providing them with legal
in person, or over video call. prioritises more vulnerable
advice from a lawyer if their court date
groups, for example: is at least two weeks away. You can
• children find out more about this program, the
• First Nations peoples assistance provided, and the eligibility
criteria by searching ‘Help before court
• those with a disability
- for criminal charges’ and clicking on
• those who cannot speak the Victoria Legal Aid (2023) webpage.
English.
Provide duty Duty lawyers are lawyers who Duty lawyer services are
lawyer services are present in the Magistrates’ free for: LEGAL VOCABULARY
Court and the Children’s • child protection Duty lawyers lawyers employed by
Court on a particular day Victoria Legal Aid who assist people
• youth crime
and can provide information in court on the day of their hearing.
and case-specific advice for • adult summary crime
Income test an assessment conducted
Law hearings occurring on the same • intervention orders
by Victoria Legal Aid to determine
day. Duty lawyer assistance • family matters whether an accused person is eligible
can extend to representation for a duty lawyer. The test requires
• some civil matters,
in court depending on the an accused person to prove their
such as Mental Health
accused’s circumstances. income is limited or that their primary
Tribunal hearings.
Duty lawyers are not available source of income is welfare provided
For adult criminal offences, by the government.
for indictable offences or
accused individuals not in Means test an assessment conducted
committal proceedings.
custody must also satisfy the by Victoria Legal Aid to determine
income test. whether an accused person is eligible
Provide grants of for a grant of legal assistance. The test
In some circumstances, The accused must satisfy the
takes into account an accused person’s
legal assistance VLA can provide a grant means test to be eligible for
income, assets, and expenses.
of legal assistance to an a grant of legal assistance.
Grant of legal assistance a sum of
accused who cannot afford
VLA may also consider how money provided by Victoria Legal Aid
$
legal representation. Legal
likely the case is to succeed to pay for a person’s legal assistance.
assistance can be provided by
and if the case will benefit
a VLA lawyer or an external
the community.
lawyer who is organised by
VLA. The lawyer can assist the
accused with the preparation
of the case, including any
relevant documents, as
well as representing the
accused in court.

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LEGAL CASE
Victoria Police v Lewis [2021] VMC 13

2B THEORY
Facts
The accused was charged with two counts of possessing an unregistered, Category
E longarm. However, the gun in her possession was not inherently lethal and shot
potatoes and lemons as opposed to bullets. The device has been nicknamed ‘veggie
canon’, ‘spud gun’, and ‘lemon bazookas’.
Legal issue
The issue in this case was whether the ‘veggie canon’ could be defined as a Category
A firearm. The accused was represented by Victoria Legal Aid at the trial in the
Magistrates’ Court of Victoria. Her defence lawyer argued that the gun in her
LEGISLATION possession did not come under the definition of a ‘firearm’ under s 3 of the Firearms
Act 1996 (Cth). The VLA defence lawyer raised points of law and referred to past legal
Firearms Act 1996 (Cth) decisions, creating a compelling legal argument that the accused could not have made
alone considering her lack of legal training and expertise.
Decision
The VLA lawyer’s case was successful and the magistrate agreed ‘the device [did] not
fit the definition of a firearm by virtue of the argument that it [did] not store or produce
gases for the purposes of discharging a missile’.
Significance
The VLA lawyer was able to protect the accused’s innocence. Without the assistance
of VLA, the accused may not have been successful in defending herself in court and
the decision may have been different.
Image: urbanbuzz/Shutterstock.com
Figure 1 An accused dodged a firearms charge in relation to her ‘veggie canon’
Victoria Legal Aid eligibility requirements 3.1.5.1.1

VLA has strict eligibility requirements to ensure those who need legal assistance the
most, receive it. As VLA is government-funded, it must carefully allocate its limited
funds. The eligibility criteria assist VLA in allocating resources to those with the
greatest need.
Income test – Duty lawyers

• In order to qualify for duty lawyer assistance, an accused must satisfy the
requirements of the income test.
• An accused will satisfy the income test if they can either:

– demonstrate their income is limited
– show a current Centrelink Benefit Card or Pensioner Concession Card
as this demonstrates their main source of income is welfare payments from
the government.

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Means test – Grants of legal assistance

• In order to qualify for a grant of legal assistance, an accused must satisfy the
requirements of the means test.
2B THEORY
• The means test involves VLA considering an accused’s income, assets, and
expenses to determine whether the applicant meets the required thresholds.
• If an accused satisfies the requirements of the means test and is given a grant
of legal assistance, they may still be required to pay some costs. Otherwise
known as a contribution, the amount a successful applicant must pay for legal
assistance is dependent on their income and assets.
• When reviewing an application for a grant of legal assistance, VLA will also
consider how likely it is the case will be successful and the overall benefits to the
wider community.
High socioeconomic Cannot afford legal representation Low socioeconomic

status and can afford but also does not meet the status and satisfies the
legal representation requirements to receive legal requirements to receive
assistance or representation. Also legal assistance and/or
known as the ‘missing middle’. representation from VLA
Figure 2 The eligibility criteria for VLA can result in a ‘missing middle’
Salmon sabotage!
A wild brawl has taken place on the set of reality TV show ‘Crazy cooks in the kitchen’.
In a semi-final showdown, contestants Manuel and Paul are tasked with creating a
complex confit salmon dish. Yet, a physical altercation breaks out between the two after
Manuel alleges that Paul sent a member of his team to steal Manuel’s salmon and swap
it with a charred, burnt piece of salmon. Enraged by such damning allegations, Paul
physically attacked Manuel and has been charged with common assault. Paul will face the
Magistrates’ Court in a few weeks time. Paul has never engaged with the criminal justice
system and claims he cannot afford legal advice or legal representation.
Given that common assault is a summary offence and the case will be heard in the
Magistrates’ Court, Paul may be eligible for VLA duty lawyer assistance. If Paul wishes
to obtain tailored legal advice or duty lawyer assistance, he will need to satisfy the income
Figure 3 VLA is able to provide tailored
test, meaning he must prove his income is limited or that his main source of income is assistance to those who satisfy set criteria
government welfare payments. Alternatively, he is also able to access free VLA legal
information which is available to everybody. Therefore, VLA enhances community access
to legal support and resources, however, the extent to which personalised assistance can
be delivered is dependent on individual circumstances and certain criteria.

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The role of Victoria Legal Aid in assisting

victims of crime 3.1.5.2
2B THEORY
One of VLA’s services is to help victims of crime access justice through their support
LEGAL VOCABULARY
services and legal advice. It understands the legal process can be overwhelming and
Office of Public Prosecutions (OPP) intimidating for victims, so it offers a range of resources to help individuals navigate
the public body responsible for the legal system and seek the justice they deserve. Whether it is providing advice
on a victim’s rights, assisting with legal proceedings, or helping them access support
legal proceedings for serious criminal
matters in Victoria, on behalf of the services, Victoria Legal Aid is committed to ensuring victims of crime have access
Victorian community. to the legal support they need. Victims are not considered a party in a criminal
case, as the Office of Public Prosecutions (OPP) prosecutes the accused on their
behalf. Therefore, VLA provides victims with an avenue of support through the legal
proceedings and ensures they are treated with courtesy, dignity, and respect. VLA
LEGISLATION pledges to abide by the Victims’ Charter Act 2006 (Vic) and provides a summary
of the key takeaways of the Charter.
Victims’ Charter Act 2006 (Vic)
Table 2 The role of Victoria Legal Aid in assisting victims of crime

LESSON LINK
Provide legal VLA provides information All victims can access
You learnt about the Victims’ Charter Act
information on its website and through these resources.
2006 (Vic) in 1C Rights of victims.
its Victims Legal Service.
Employment
It also provides links to

s
ence
s
external resources, such

Fine
WANT TO KNOW MORE? as child witness services,

c off
The Office of Public Prosecutions has Victims of Crime Assistance

Traffi
resources for victims that inform them Tribunal, and the OPP
about what to expect before entering website, that assist victims
the courtroom. You can find out more of specific crimes or in certain
and watch the videos to see inside circumstances.
the courtroom by searching ‘Office
Provide a Victims The Victims Legal Service All individuals affected by a
of Public Prosecutions Victoria, Going
to Court’ and clicking on the Office Legal Service Helpline is a specialist advice crime can access the service
of Public Prosecutions (n.d.) webpage. phone line that provides to obtain legal guidance or
legal information and advice, advice regarding the process
...
particularly regarding the of applying for financial
financial impact of a crime. aid from the Victims of
This service is a partnership Crime Assistance Tribunal
with VLA, CLCs, and or filing for restitution and
Aboriginal legal services. compensation from the
perpetrator of the crime.
Provide duty Duty lawyers are present in All victims are entitled
lawyer services the Magistrates’ Court to assist to information from duty
victims with information, legal lawyers, but advice and
advice, and representation in in-court advocacy are
relation to intervention orders. prioritised based on certain
criteria, whereby children
Law and adults with a disability
have higher priority.
Provide grants of Victims can apply for grants There are strict eligibility
legal assistance of legal assistance in relation requirements in relation
WANT TO KNOW MORE? to intervention orders. to grants, whereby VLA
Victoria Legal Aid provides resources will consider many factors,
$
for victims on their website. You can such as the merits of the
find out more about these resources matter and the means of
by searching ‘Other support for victims the recipient.
of crime’ and clicking on the Victoria
Legal Aid (2023) webpage.

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Evaluating Victoria Legal Aid’s ability to achieve the principles of justice during a criminal case
STRENGTHS LIMITATIONS
2B THEORY
S
ES
• The provision of duty lawyers in the courts provides • VLA’s limited budget means it is only able to
FAIRN
advice and assistance to various accused persons, provide legal advice and representation to a
ensuring a fair hearing for these individuals. small number of accused persons. Many accused
• The VLA is guided by the Victims Charter to persons charged with criminal offences do not
uplift victims and ensure their rights set out in meet VLA’s eligibility criteria but cannot afford a
the Charter are protected. The Charter is legally private lawyer either. As a result, VLA is limited in
binding which ensures VLA treats all victims fairly. its ability to ensure all individuals can understand
the case against them, participate in the criminal
proceedings, and adequately present their case.
EQU
• VLA provides free information on its website to all • The eligibility requirements for a duty lawyer
ALI
accused people and victims, regardless of personal or grants of legal assistance from VLA are
TY
characteristics, such as race, gender, or ethnicity. strict, meaning very few individuals can gain
• VLA’s eligibility criteria ensure legal support is access to free legal representation. Whilst these
provided to those in most need, regardless of their requirements prioritise those most in need,
race, gender, or sexuality. VLA ensures those who others who are in the middle ground, whose
are disadvantaged are prioritised in receiving legal circumstances are not considered dire enough to
aid, thus promoting equality. warrant help, are unable to receive legal assistance.
• Victims are able to find out more information about This limits equality as these individuals are not
their rights and access resources by calling VLA. uplifted to receive the same treatment as those
This service promotes equality as VLA has staff who can afford representation in the justice system.
that speak many languages, and the body organises
a free interpreter if no one is able to speak the
victim’s language. This ensures that victims are able
to obtain information regardless of their language
preferences and abilities.
• VLA provides video resources in Auslan for those
who are d/Deaf or hard of hearing. This allows
people who are d/Deaf or find it hard to hear or
speak on the phone, to not be disadvantaged and
be able to access legal information and support.
• VLA provides free information on its website which • The means and income tests prevent many
is accessible to all accused people and victims. Victorians from accessing many services of VLA,
such as tailored advice and legal representation, AC
• VLA’s services can be accessed in person, over the CESS
phone, and online, allowing for multiple avenues hindering access to justice.
of access to legal support. • VLA does not provide advice about all types of
• Duty lawyers and grants of legal assistance matters, therefore, limiting accessibility to justice
increase an accused individual’s access to the for parties involved in these legal matters.
justice system and criminal proceedings, ensuring • VLA information about the criminal justice
they can participate in the processes in an system is readily available online. However, this
informed manner. may be inaccessible for those with low incomes,
• Victims are supported through various services the homeless, or the elderly who may not have
offered by VLA, such as Victims Legal Service access to internet-connected devices or the
and VLA’s commitment to upholding the Victims knowledge to navigate such technologies to access
Charter, enabling victims to adequately participate legal information.
in legal proceedings and receive just outcomes. • VLA is limited in its ability to facilitate access to
legal resources and support due to a lack of funding.

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The role of Victorian community legal

centres in assisting accused people 3.1.5.3
2B THEORY
Community legal centres (CLCs) are independent, not-for-profit organisations

KEY TERM
that aim to offer high-quality, free, and accessible legal support and education to
Community legal centres (CLCs) not- members of the community, particularly those facing hardships. CLCs are funded
for-profit community organisations that by VLA, state and federal governments, and private donations. Often, VLA and
provide free legal information, advice, CLCs work together to achieve the shared goal of providing equitable access to legal
education, and casework services.
information, resources, and support services. CLCs can be found in many suburbs
across Melbourne and in some larger rural centres.
There are two types of CLCs:

WANT TO KNOW MORE?
1. Generalist CLCs that can assist individuals in a particular geographical area and
Both generalist and specialist CLCs
can provide legal services for a broad range of legal matters.
can be found in a number of locations
across Victoria. You can find out where 2. Specialist CLCs that can provide legal services regarding a specific area of law
different CLCs are located and the legal or for a particular group of people. For example, the CLC may focus on youth
services they provide by searching ‘Find law and providing legal support to young people, or specialise in consumer law
a Community Legal Centre’ and clicking and dealing with such matters.
on the Federation of Community Legal
As well as assisting people who come to them for help, community legal centres
Centres (2023) webpage.
deliver legal education in plain language to schools, community groups, and other
organisations. They create, update, and distribute various types of fact sheets, guides,
and handbooks that provide easily understandable legal information to the public.
USEFUL TIP DEEP DIVE

In your responses to SAC questions
Tailored legal support
or on the VCAA end-of-year exam,
you should write the terms ‘Victoria The Victorian Aboriginal Legal Service (VALS) in Preston provides free legal advice,
Legal Aid (VLA)’ and ‘community legal support, and in some cases, legal representation in court to help prepare a defence
centres (CLCs)’ in full, followed by case for accused First Nations people across Victoria. VALS specialises in family, civil,
their acronym, the first time you refer and criminal law, whilst also advocating for law reform regarding the rights of people
to them in a particular question. After in custody and improved policing and correction accountability.
the first use of these terms, you can Alternatively, First Step Legal (FSL) is a hub that offers addiction, mental health, and legal
refer to them by their acronyms within services to support more than 1,800 people each year. The organisation understands that
the same question. vulnerable clients often face multiple legal problems simultaneously. Hence, FSL’s legal
team possesses a diverse skill set that enables it to assist clients with various legal matters,
such as criminal law, family violence, and tenancy issues. This approach provides holistic
legal support that aims to mitigate client risk factors. To qualify for ongoing legal support
and representation, FLS requires clients to commit to addressing the root causes of their
offending, which often involves treatment for mental health, addiction, or violent behaviour.
Adapted from ‘Our Areas of Practice’ (Victorian Aboriginal Legal Service, n.d.) and ‘Legal Services’ (First Step
Legal, n.d.)
Table 3 The role of community legal centres in assisting accused persons

Provide legal General legal information can Available to everyone.
information be provided in person and
online. Moreover, specialist
Employment
CLCs can provide detailed

s
ence
s
information about their

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primary area of expertise,

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or information tailored
Traffi
towards the type of person

they specialise in assisting. Continues →

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Table 3 Continued
2B THEORY
Provide basic CLCs provide basic Most CLCs will provide
legal advice and information online and in basic advice to anyone who
assistance person. They may also assist attends a clinic, but cannot
individuals with completing take on casework unless
Lawyer various forms and filing strict eligibility criteria are
relevant applications. Some met. Some centres will cater
CLCs also provide advice over for particular types of people
the phone or in person with in speciality clinics.
no appointment required.
Provide legal CLCs will rarely provide Each CLC will have its own
representation representation on urgent eligibility requirements.
matters. Some CLCs are able However, in determining
to provide legal aid to clients. whether an accused is eligible
for legal representation, they
often consider:
• the type of legal matter
• if the CLC specialises in
those types of matters
• if the accused is eligible
for VLA.
The role of Victorian community legal

centres in assisting victims of crime 3.1.5.4
Community legal centres (CLCs) aim to provide support and assistance to victims
of crime as they navigate legal proceedings. CLCs can offer a range of support
services to victims of crime, including legal advice, assistance with filing complaints
or applications, and referrals to other support services, such as counselling or
victim advocacy. They can also provide information about the legal process and
help victims understand their rights and responsibilities. Some CLCs provide family
violence duty lawyer services for victims of family violence.
Table 4 The role of community legal centres in assisting victims of crime
Role Explanation Eligibility requirements CONTENT WARNING This section

mentions content that is sensitive in nature,
Provide legal General legal information can Available to everyone. relating to family violence and sexual assault.
information be provided in person and
online. Moreover, specialist
Employment
CLCs can provide detailed

s
ence
s
information about their

Fine
primary area of expertise, or

c off
information tailored towards

Traffi
the type of person they

specialise in assisting.
Provide basic CLCs provide basic Most CLCs will provide

legal advice and information online and in basic advice to anyone who
assistance person. They may also assist attends a clinic, but cannot
individuals with making take on casework unless
applications and filing strict eligibility criteria are
Lawyer
relevant documentation. met. Some centres will only
Some also provide advice over cater for particular types of
the phone or in person with people in speciality clinics.
no appointment required.
Continues →

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Table 4 Continued

2B THEORY
Provide duty Duty lawyers are present All victims are eligible, but
lawyer services in some courts to assist prioritised based on need.
victims with intervention
order hearings.
Law
Provide legal Some CLCs have resources Each CLC has different
representation to provide ongoing assistance eligibility requirements and
and representation to victims some only assist particular
of crime, usually in relation types of victims, such as
to family violence or other the Women’s Legal Service
intervention orders. Victoria and the Victorian
Aboriginal Legal Service.
DEEP DIVE
Examples of community legal centres assisting victims of crime

There are variations in the level of assistance that CLCs can provide to victims, with some CLCs specialising in helping particular types of
people, or in particular areas of law. These are just some of the examples of CLCs in Victoria that provide assistance to victims of crime.
Community
Type of assistance Eligibility requirements
legal centre
Djirra At Djirra, the sharing and celebration of culture is Djirra provides assistance to First Nations women
coupled with practical support for all Aboriginal women, and focuses on family violence cases.
especially those currently experiencing, or those who
have previously experienced, family violence. It provides
information to clients on how to protect themselves
and their children from family violence. Referrals to
other services, support for housing, health, finances,
and employment, and specialised services, such as
counselling and assistance with drug and alcohol issues,
are also available to promote future safety.
Disability Disability Discrimination Legal Service (DDLS) DDLS provides assistance to those who are
Discrimination offers free legal services in multiple areas, including Victorian residents with a disability, their
Legal Service information, referrals, advice, casework assistance, advocate, associate, parent, or representative
community legal education, policy, and law reform. bodies, and to those who have experienced
The service also caters to female-identifying individuals discrimination based on their disability.
regarding workplace sexual harassment. DDLS provides
clients with an information pack on its services.
Women’s Legal Women’s Legal Service Victoria provides legal advice to Women’s Legal Service Victoria prioritises support
Service Victoria female victims of crime and promotes women’s rights. for people who are experiencing family violence
and face other barriers to justice. This may include:
• having no or limited access to money
• having limited access to other legal support
• not having a home
• being Aboriginal and Torres Strait Islander
• not speaking English or having English as a
second language
• being on a temporary visa or not having a visa
• living with disability
• caring for children with disabilities.
(Women’s Legal Service Victoria, n.d.)

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REAL WORLD EXAMPLE
Youthlaw community legal centres supporting victims under 25
2B THEORY
Youthlaw assists victims under 25 with navigating the legal system. It assists with
making intervention order applications or representing young people in court. It has fact
sheets available online with advice for victims about victim impact statements, claiming
compensation, and victim rights. Youthlaw understands that young people who are
victims of crime may also be dealing with other complex issues, such as mental health
problems, homelessness, or substance abuse. Therefore, it works in collaboration with
Image used with permission from Youthlaw
other community services to provide a holistic approach to supporting young victims.
Figure 4 Youthlaw focuses on assisting
Adapted from ‘Victims of Crime’ (Youthlaw, 2018) young people to navigate the legal system
LESSON LINK
Mildura
NEW SOUTH You will learn more about victim
WALES impact statements in 3C Factors
CANBERRA considered in sentencing.
Albury
Shepparton
Bendigo
VICTORIA
MELBOURNE Lakes Entrance
Geelong
Warrnambool
Figure 5 A map showing the location of community legal centres in Victoria
USEFUL TIP
An important key skill in Area of Study 1 of Unit 3 VCE Legal Studies is ‘evaluate the
ability of the criminal justice system to achieve the principles of justice during a criminal
case’. The tables in this lesson showing strengths and limitations in relation to each
principle can help you evaluate how VLA and CLCs uphold the principles of justice.
Evaluating community legal centres’ ability to achieve the principles of justice during a criminal case
S
ES
• CLCs provide high quality, free legal support, • CLCs often cannot provide legal representation
FAIRN
and education to members of the community. in court. This means many accused individuals
This enables individuals to adequately participate without financial means to gain legal representation
in legal proceedings and present their cases in the must self-represent, unless they are eligible for
best light, encouraging just and fair outcomes. assistance from VLA. Thus, this may impact the
• Victims of crime are able to receive legal support achievement of a fair trial if an individual cannot
from professionals, therefore easing the emotional adequately participate in the legal proceedings.
stress of the trial. This can allow victims to better • CLCs cannot provide assistance to all victims of
participate in court proceedings and provide crime, meaning some victims may not be able to
accurate statements to the court, promoting participate in the justice system, limiting fairness.
a just and fair outcome.
• In some circumstances, CLCs can provide legal
representation to accused individuals. This promotes
fairness as the accused is provided with necessary
assistance to navigate the complex criminal justice
system and adequately present their case.

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EQU
• CLCs often provide an interpreter service to ensure • The eligibility requirements for a duty lawyer or
2B THEORY
ALI
those from non-English speaking backgrounds can legal representation from a CLC are strict, meaning
TY access legal assistance, promoting equality in the very few individuals can gain access to free
justice system. legal representation. Whilst these requirements
• CLCs can provide specific advice to victims and prioritise those most in need, others who are in
cater to their individual circumstances, ensuring all the middle ground, whose circumstances are not
people, regardless of personal characteristics such considered dire enough to warrant help, are unable
as race, gender, or disability, receive appropriate to receive legal assistance. This limits equality
legal information. For example, the Disability as these individuals are not uplifted to receive
Discrimination Legal Service provides specialised the same treatment as those who can afford
services to those with a disability, ensuring these representation in the justice system.
people are uplifted in the justice system and • The lack of funding received by CLCs impedes
receive tailored services, promoting equality. their ability to take on many new cases. Therefore,
many accused people and victims suffer without
representation, as help may be unavailable when
required due to the limited capacity of CLCs.
• The majority of CLCs in Victoria are located in
metropolitan Melbourne with few centres in rural
Victoria. This limits the ability of accused persons
and victims living in rural areas to acquire free legal
services. This restricts the achievement of equality
as rural areas may not have access to services to
the same degree as those in metropolitan regions.
• CLCs provide free legal advice and information, • As CLCs usually provide assistance for relatively
enhancing access to, and understanding of, the minor criminal matters, they do not promote
AC legal system for all individuals in the community. access to resources for those charged with very
CESS
• Specialist CLCs can provide tailored advice serious criminal matters.
about specific areas of law, increasing access to • There are not as many CLCs located in rural parts
personalised assistance for certain legal matters. of Victoria, limiting access to legal assistance for
• CLCs are located across Victoria and in some those in remote areas.
regional areas, with some providing legal • CLCs are limited in their ability to facilitate access to
assistance over the phone, promoting access legal resources and support due to a lack of funding.
to legal information and advice.
• Victims are able to receive free legal assistance and
support from CLCs that is specific to their case, such
as by assisting individuals with making applications
and filing relevant documentation, promoting access
to justice.
REAL WORLD EXAMPLE
Community legal centres’ crisis

Community legal centres play a crucial role in providing free legal advice and representation
to vulnerable individuals and marginalised communities. However, a growing demand
for their services, coupled with limited resources, has resulted in CLCs being unable to
accommodate the demand and only able to assist clients with ‘exceptional circumstances’.
As Natalie Morale, director of strategy, engagement and projects at Inner Melbourne
Community Legal, states ‘we’re already prioritising the neediest of the needy and now we’re
not even able to really support them properly’.
Image: Ellen Smith/The Guardian
There are various factors contributing to the crisis, such as cuts in government funding and
Figure 6 Community legal centres are an increase in complex legal cases. As a result, community legal centres are compelled to
being forced to reject clients seeking legal
assistance prioritise cases based on severity or urgency, leaving many individuals without the support
they desperately need. Furthermore, the emotional toll and distress of legal proceedings is
compounded as services are denied and individuals are left to navigate the legal system alone.
Adapted from ‘Saying no has an enormous impact’: overwhelmed community legal centres forced to turn away clients’
(Bucci, 2022)

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Lesson summary
2B QUESTIONS
Table 5 Victoria Legal Aid and community legal centres summary
Victoria Legal Aid Community legal centres

Purpose VLA is a government-funded body that provides CLCs are independent organisations that aim
free legal information to the public and no cost to enhance access to justice for members of the
or low-cost legal services to eligible individuals. community by providing free general and specialist
legal services.
Funding VLA is funded by the state and federal governments. CLCs are funded by Victoria Legal Aid, state and
federal governments, and private donations.
Eligibility Strict eligibility requirements must be satisfied to Each CLC will have different eligibility requirements
requirements receive a duty lawyer or a grant of legal assistance. depending on its resources and areas of expertise.
This includes the means test and the income test.
Role in assisting VLA can provide: CLCs can provide:

accused people • legal information • legal information
• legal advice • basic legal advice
• duty lawyers and assistance
• grants of legal assistance. • legal representation.
Role in assisting VLA can provide: CLCs can provide:

victims of crime • legal information • legal information
• legal advice through the Victims Legal Service • legal advice
• duty lawyers • duty lawyers
• grants of legal assistance. • legal representation.
2B Questions
Question 1
The main purpose of VLA and CLCs is to provide low-cost or no-cost legal assistance to those
most vulnerable.
A. True
B. False
Question 2
Which of the following is not a service VLA provides for accused people?
A. Duty lawyer services
B. Free legal advice
C. Counselling services
D. Grants of legal assistance
Question 3
Which of the following resources may be provided to victims by CLCs? (Select all that apply)
A. Free legal advice
B. Legal information
C. Duty lawyers
D. Grants of legal assistance

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Question 4
Tick the box to indicate whether the following characteristics are strengths or limitations of CLCs.
2B QUESTIONS
Characteristic Strengths Limitations

I. CLC services are free.
II. There is a lack of funding.
III. The majority of CLCs are located in metropolitan Melbourne with fewer centres in rural Victoria.
IV. CLCs can provide interpreter services to ensure those with diverse language backgrounds can
access legal assistance.
Question 5
means income
The test requires an accused to demonstrate that their income is limited or their main source
of income is welfare payments from the government in order to receive duty lawyer assistance. On the other hand, the
test considers an accused’s income, assets, and expenses to determine whether they are eligible for
a grant of legal assistance.
Question 6
Victoria Legal Aid contributes to the achievement of equality as: (Select all that apply)
A. the provision of legal support is not determined based on personal characteristics such as race, gender,
or sexuality.
B. the eligibility requirements for a duty lawyer or grants of legal assistance from VLA are strict, meaning
those who cannot afford a lawyer and are not eligible for legal aid are unable to receive legal assistance.
C. it provides free information on its website to all accused people and victims.
Question 7
Community legal centres are limited in their ability to achieve access as:
A. they provide free legal advice and information.
B. there are fewer locations in regional Victoria compared to metropolitan areas.
C. specialist CLCs can provide tailored advice about specific areas of law, increasing access to personalised
assistance for certain legal matters.
Preparing for exams

Standard exam-style
Explain one role of Victoria Legal Aid in assisting an accused person.
a. Outline the main purpose of community legal centres. 2 MARKS
b. Explain the role of community legal centres (CLCs) in upholding the principle of fairness when
assisting accused people. 3 MARKS

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Charles, a 23-year-old paraplegic, has used a wheelchair for over five years and was recently assaulted by
a group of men during his commute to work. They pushed him off the train and onto the platform, causing
2B QUESTIONS
him to fall out of his wheelchair. After seeking legal support, Charles learnt about specialised assistance for
disability discrimination crimes.
Explain the role of community legal centres (CLCs) in providing support to Charles.
Kai has just moved to Australia and has no knowledge of the legal system. English is also their second
language. They received a speeding fine, but as they could not afford to pay it, the matter has escalated and
now Kai must face the Magistrates’ Court.
Advise Kai as to whether Victoria Legal Aid or a community legal centre would be more appropriate for Kai
in this situation.
Extended response
Question 12
Tick the box to indicate whether the following statements are strengths or limitations of Victorian Legal Aid (VLA)
and community legal centres (CLCs) in upholding the principle of access.

I. VLA’s services can be accessed in person, over the phone, and online, allowing for multiple
avenues of access to legal support. Likewise, CLCs are across metropolitan Melbourne and
in some regional areas, with some providing legal assistance over the phone.
II. VLA duty lawyers and grants of legal assistance ensure eligible accused people can participate
in the criminal justice system and its processes in an informed manner. Additionally, CLCs
can provide legal representation for accused individuals, and duty lawyers for victims
in some circumstances.
III. CLCs usually provide assistance for relatively minor criminal matters and therefore, do
not promote access to resources for those charged with very serious criminal matters.
Likewise, VLA duty lawyers and grants of legal assistance can only be provided if the accused
satisfies the income and means test, respectively, and duty lawyers are only available in the
Magistrates’ Court and not for indictable offences.
IV. Lack of funding for both VLA and CLCs can limit access to legal services due to the lack
of resources and support available. The demand for legal services is greatly disproportionate
to the assistance available, hence more individuals may be left uninformed and unable
to adequately engage with the criminal justice system and achieve justice.
Discuss the ability of Victoria Legal Aid and community legal centres to uphold the principle of access.

Sonia was the victim of a sexual assault offence and the trial for her accused perpetrator is set to take place
next month. Sonia has never engaged with the criminal justice system and is seeking to find out more about
her rights as a victim.
Explain how a community legal centre could assist Sonia in understanding her rights as a victim.

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2C Plea negotiations
• the purposes and appropriateness of plea negotiations
2A 2B 2C 2D 2E 2F 2G 2H 2I
Image: Dmitrii Ivanov/Shutterstock.com
You are the owner of a restaurant and

unfortunately added poisonous mushrooms 3.1.6.1 3.1.6.2 3.1.6.3
to the risotto you were serving, unaware of
Plea negotiations Purposes of plea Appropriateness of
their toxicity. Five people die as a result of negotiations plea negotiations
the toxins. You are given an offer: either risk
your chances to plead your innocence, but
if you fail, suffer through 20 years of prison,
or admit your guilt and only face 10 years in
prison instead. Which would you choose?
Lesson introduction
In the criminal justice system, it is a common practice for the accused and
prosecution to enter into plea negotiations in order to resolve a criminal dispute
without a trial or hearing. These negotiations may result in the accused pleading
guilty, therefore, aiding in securing a guilty plea for the prosecution, whilst also
saving time, costs, and resources for both the parties and the courts.
Plea negotiations 3.1.6.1

Where an accused is willing to plead guilty, they may enter into plea negotiations
KEY TERM
with the prosecution, potentially resulting in a reduction of charges, or a lesser
Plea negotiations discussions charge altogether. An accused may plead guilty to an offence if doing so is beneficial
between the prosecution and the to them. For example, an accused may plead guilty to an offence in exchange for:
accused, aimed at encouraging the
• the withdrawal of some other charges. For example, an accused person charged
accused to plead guilty to a lesser
charge, or fewer charges altogether with two charges may plead guilty to one charge on the condition that the other
in exchange for the prosecution charge will be dropped.
requesting a lesser sentence. • a reduction in the severity of the charge. For example, an accused person
charged with murder may agree to plead guilty in order to receive a lesser
LEGAL VOCABULARY charge, such as manslaughter.
Sanction a penalty imposed by a • the accused pleading guilty on a mutually agreed set of facts regarding the offence.
court, or an authorised body, on an
For example, if an agreement is reached regarding the extent of the crime, the
offender when they plead guilty or are
found guilty of a crime. prosecution’s investigation time can decrease and consequently, the offender’s
punishment may be reduced.
Plea negotiations may be initiated by the prosecution or accused and can occur at any
LESSON LINKS stage before, or during the trial. If an accused pleads guilty to lesser charges during this
You will learn more about the role process, the charges must still reflect the severity of the accused’s criminal conduct.
of the parties in 2F The parties in a Therefore, the court will be notified of the charges the accused has pleaded guilty to
criminal case. and will determine an appropriate sanction to impose. However, if a plea negotiation
You will learn more about sanctions is unsuccessful and does not result in an agreement, any information raised throughout
in 3A Purposes of sanctions and 3B the negotiations cannot be used against the accused if the case proceeds to trial.
Types of sanctions.

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Purposes of plea negotiations 3.1.6.2 LEGAL VOCABULARY

Plea negotiations serve a wide range of purposes in the determination of criminal
abides by the rules of procedure and is,
2C THEORY
cases and can be beneficial to all parties involved in the proceedings.
therefore, allowed to be presented to
the court.
Table 1 Purposes of plea negotiations
Purpose of plea negotiations Explanation

Achieve an early determination of a case Plea negotiations enable criminal matters to be resolved without a trial, which is
generally in the best interests of both parties. It also reduces the courts’ workloads,
minimising delays for matters that do go to trial.
Avoid the stress and trauma associated Where plea negotiations result in the accused pleading guilty, it reduces the stress and
with a trial trauma associated with a criminal trial for the victim(s), their families, and witnesses.
Avoid the costs associated with a trial Where plea negotiations result in the accused pleading guilty, this results in a prompt
resolution of a trial. As a result, the offender may avoid the costs associated with a
trial, such as legal representation fees.
Secure a conviction In cases where witnesses may be reluctant to give evidence, or if the prosecution does
not have strong admissible evidence, a successful plea negotiation ensures there is
a conviction.
Allow the offender to receive Plea negotiations may allow the offender to plead guilty to a less severe charge,
a reduced sentence or lesser charges. This may lead to a reduced sentence compared to if the case were
to proceed to trial.
REAL WORLD EXAMPLE

relating to death.
Plea negotiations result in an admission of guilt for victims’ families
Pipecon Pty Ltd is a construction company located in Ballarat, Victoria. In 2018, two of
Pipecon’s workers were killed after a trench collapsed on top of them. Pipecon was charged
with two occupational health and safety offences for failing to provide a safe workplace
and failing to provide supervision to ensure a safe workplace. Initially, Pipecon pleaded
not guilty. However, following various court delays, Pipecon entered into plea negotiations
with the prosecution. Pipecon agreed to plead guilty to one charge of failing to provide
supervision to ensure a safe workplace, and in return, the prosecution dropped the other Image: Emre Ucarer/Shutterstock.com
charge. According to Ballarat Trades and Labour Council secretary, Brett Edgington, who Figure 1 Successful plea negotiations
worked closely with the victim’s families, it was a ‘very profound moment’ for the families resulted in Pipecon Pty Ltd agreeing to plead
to hear Pipecon ‘get up and admit guilt’. In this case, the plea negotiations were beneficial guilty to one charge in return for a reduction
to Pipecon and the families of the victims. in its number of charges
Adapted from ‘Pipecon pleads guilty to charge over trench collapse that killed Jack Brownlee, Charlie Howkins’
(King, 2021)
Appropriateness of plea negotiations 3.1.6.3

While there are benefits to plea negotiations, there are also various considerations that
must be accounted for when determining whether a plea negotiation is appropriate in a
particular case. As a general rule, the prosecution must ensure its offer to the accused is
proportionate to the public interest and accurately reflects the accused’s wrongdoing.
USEFUL TIP
It is important to remember that the appropriateness of a plea negotiation will be
determined by the nature of a specific case. In assessments, you may be required
to discuss whether or not a plea negotiation is appropriate in relation to a case study.
Therefore, a high-scoring response would explain how various factors influence the
appropriateness of a plea negotiation in relation to the specific facts of the scenario,
as opposed to simply listing general factors that determine the appropriateness of
plea negotiations.
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Table 2 The appropriateness of plea negotiations
Circumstances when plea negotiations are appropriate Circumstances when plea negotiations are not appropriate
2C THEORY
• The accused is willing to plead guilty. • The accused is not prepared to plead guilty to any charges.
• The accused or prosecution wishes to avoid the costs and time • The alleged offending is serious to the point that a
associated with a criminal trial. conviction for lesser charges is not in the public interest
• The accused is representing themself and is unable to present and the perception that the accused ‘got off lightly’ will
their case in the best possible light. be too great.
• Victims and witnesses are reluctant to give evidence, • The victim or their family opposes such an agreement.
or giving evidence will be particularly traumatic for the The prosecution will consider this in deciding whether to
victim or witnesses. negotiate a plea. Although, it is ultimately up to only the
prosecution to decide whether to enter such an agreement.
• The prosecution believes some witnesses may not be
believable when giving evidence before a jury, reducing
the likelihood of a conviction being secured.
• The prosecution is concerned that vital evidence proving an
accused person’s guilt may be inadmissible at trial, reducing
the likelihood of a conviction being secured.
• Victimless crimes, such as drug offences or fraud, where a
victim’s views do not need to be taken into account
at sentencing.
Finding common ground

Emiko was arrested and charged with numerous offences, including armed robbery. She
is concerned because she cannot afford legal representation, and is worried about being
GUILTY sent to prison. Emiko has been cooperative with the police since her arrest. Ada was a
witness in the case against Emiko and was concerned about giving evidence as she was
distressed about the armed robbery.
As Ada was the only witness in the case against Emiko, but was reluctant to give evidence,
the prosecution entered into plea negotiations with Emiko. After plea negotiations with the
prosecution, Emiko agreed to plead guilty to armed robbery, and in return, the prosecution
dropped the other charges that Emiko was facing.
As a result of the plea negotiation, Ada was able to avoid providing evidence at trial and
Figure 2 Plea negotiations allowed Emiko and Emiko avoided representing herself at trial. However, the prosecution ensured its offer to
the prosecution to avoid a full criminal trial Emiko was proportionate to the public’s interests and accurately reflected her wrongdoing.
Evaluating plea negotiations’ ability to achieve the principles of justice during a criminal case
S
ES
• Plea negotiations may result in the accused • Where plea negotiations result in the accused
FAIRN
pleading guilty to a charge that adequately reflects pleading guilty to a charge that does not adequately
the crime, leading to a just outcome to the case. reflect the crime, this may result in the community
• Plea negotiations secure a conviction in cases believing the accused has been ‘let off’. This could
where witnesses may be reluctant to give lead to the impression that the outcome was unfair.
evidence, or where evidence is inadmissible in • Plea negotiations may be seen as undermining the
court, providing an alternative avenue for securing achievement of fairness as they are conducted in
a conviction, without the need for the matter to private, which does not achieve the public element
proceed to trial. of a fair trial.
• If the victim or their family opposes the idea of a
plea negotiation, but the prosecution continues
to enter into an agreement with the accused, this
may lead to the victim or their family viewing the
outcome as unjust.

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EQU
2C QUESTIONS
• Personal characteristics, such as the accused’s • Plea negotiations are not available to all accused
ALI
gender and income, are not relevant during plea persons as they are only possible if the prosecution
TY
negotiations, therefore ensuring unbiased and agrees to it. Therefore, there is not always an equal
equal treatment. opportunity for accused persons to enter into
• Both the accused and prosecution can request a a plea negotiation.
plea negotiation, promoting equal engagement in
the criminal justice system without disparity.
• Plea negotiations save courts time and resources • Where plea negotiations result in the accused
by allowing cases to be resolved before going pleading guilty to a charge that does not
to trial. This minimises delays and frees up the adequately reflect the crime, this can prevent AC
CESS
courts’ resources to make the legal system more victims and their families from accessing justice.
accessible for cases that do need to go to trial. • Access to plea negotiations may be limited for
some accused persons as the prosecution has to
agree to one.
• Plea negotiations are conducted in private, meaning
victims, their families, and society cannot engage in
this process, reducing the achievement of access.
Lesson summary USEFUL TIP
• Plea negotiations are beneficial for both the prosecution and the accused, and An important key skill in Area of Study
1 of Unit 3 VCE Legal Studies is to
can occur at any stage before, or during the trial.
‘evaluate the ability of the criminal
• They can result in a prompt resolution to a criminal case without the need to go to justice system to achieve the principles
trial as an accused may plead guilty to fewer charges, a lesser charge, or a mutually of justice during a criminal case’.
agreed set of facts. These tables showing the strengths
and limitations of plea negotiations in
• Plea negotiations can ensure victims, their families, and witnesses have access to
relation to each principle may help you
justice without having to experience the stress and trauma associated with evaluate how these negotiations can
a criminal trial. uphold the principles of justice.
2C Questions
Question 1
Plea negotiations can only be initiated by the prosecution.
A. True
B. False
Question 2
Which of the following is an agreement that cannot be reached during a plea negotiation?
A. An agreement on the likely sentence the accused is to receive if they plead guilty.
B. The withdrawal of some other charges.
C. A reduction in the severity of the charge.
D. The accused pleading guilty to an agreed set of facts.
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Question 3
Which of the following statements are correct about the purposes of plea negotiations? (Select all that apply)
2C QUESTIONS
A. Plea negotiations avoid the stress and trauma associated with a trial for the victim, their family, and
the accused.
B. Plea negotiations result in an early determination of a case as it enables criminal matters to be resolved
without the need for a trial.
C. Plea negotiations allow the prosecution to guarantee the accused receives the maximum penalty possible
for the charge(s) they face.
D. Plea negotiations secure a conviction for the prosecution, particularly in cases where witnesses may
be reluctant to give evidence, or if some evidence is inadmissible in court.
Question 4
In which of the following scenarios would plea negotiations be appropriate? (Select all that apply)
A. The accused is facing multiple charges but is not prepared to plead guilty to any of the charges.
B. The prosecution believes some witnesses may not be comprehensible and convincing when giving
evidence before a jury.
C. The alleged offence(s) are of such high severity that a conviction for lesser charges is not in the public interest.
D. The prosecution fears vital evidence proving an accused person’s guilt may be inadmissible at trial.
Question 5
equality fairness
If a plea negotiation results in the accused pleading guilty to a charge that does not adaquately reflect the crime,
this prevents the achievement of .
Question 6
Plea negotiations are appropriate and can be used in all circumstances.
A. True
B. False
Preparing for exams

Standard exam-style
Identify two participants in the plea negotiation process.
VCAA 2021 exam Section A Q1a
Under what circumstances might plea negotiations be appropriate in determining a criminal case?
Explain your response.
Lottie has been charged with culpable driving after being involved in a car accident that caused the death
of Nico. The prosecution knows Nico’s family is devastated and wants to see Lottie punished severely.
The backlog of cases in the County Court means the trial will be more than 14 months away, and Lottie
wants the case to be resolved quickly.
Outline one reason why a plea negotiation would be appropriate in determining Lottie’s case and outline
one reason why it would not.
Adapted from VCAA 2018 Sample exam Section B Q2c

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Extended response
2C QUESTIONS
Tabitha has been charged with stalking and causing serious injury intentionally after allegedly following
her ex-boyfriend, Joe, for weeks. After seeing him with his new girlfriend Aria, Tabitha repeatedly punched
and kicked him. Tabitha has pleaded not guilty but is worried about the outcome of the trial as she cannot
afford legal representation and is unsure how to present her case properly. In addition, Aria has expressed
to the prosecution that she does not want to relive the traumatic experience by presenting evidence at
trial. However, Joe’s parents wish to see justice served at trial.
Question 10
Which of the following statements suggests that plea negotiations are appropriate in this case?
A. Aria does not want to relive the traumatic experience and is, therefore, reluctant to give evidence at trial.
B. Joe’s parents wish to see justice served at trial.
C. Tabitha has to represent herself as she cannot afford legal representation but may not present her
case properly.
D. The prosecution may be able to secure a conviction to ensure justice is achieved for Joe, his parents, and Aria.
E. Tabitha has pleaded not guilty despite having the chance to plead guilty.
Discuss the appropriateness of plea negotiations in this case.
Adapted from VCAA 2018 exam Section B Q1c

Question 12
Tick the box to indicate whether the following statements are strengths or limitations of plea negotiations
in achieving the principles of fairness and access.

I. Plea negotiations save the courts time and resources by allowing cases to be resolved before
going to trial, minimising delays and freeing up the courts’ resources.
II. Plea negotiations secure a conviction in cases where witnesses may be reluctant to give
evidence, or if some evidence is inadmissible in court.
III. Where plea negotiations result in the accused pleading guilty to a charge that does not
adequately reflect the crime, this prevents the victims and their families from accessing justice.
IV. Plea negotiations may be seen as undermining the achievement of fairness as they are
conducted in private.
Discuss the extent to which plea negotiations help the justice system achieve the principles of fairness and access.
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2D The Victorian court hierarchy

and criminal cases
• the reasons for the Victorian court hierarchy in determining criminal cases,
including specialisation and appeals
2A 2B 2C 2D 2E 2F 2G 2H 2I
Image: Fer Gregory/Shutterstock.com
In a quaint country town, a gruesome double

murder shocks the community. Yet, as the
rumour mill begins to churn with whispers of 3.1.7.1 3.1.7.2 3.1.7.3
‘whodunit’ and speculations about suspicious The Victorian court Specialisation Appeals
figures, one question is on everyone’s hierarchy – criminal
minds…which court will hear and determine jurisdictions
this case once the alleged killer is caught?
Lesson introduction
In Victoria, the courts are arranged in a hierarchy and each court has the power
to hear and determine different types of criminal cases. Additionally, some courts
in the Victorian court hierarchy have the power to hear and review criminal cases
on appeal from lower courts. Therefore, the existence of a court hierarchy ensures
Victoria has an efficient and cohesive court system that can facilitate the delivery
of justice for the entire community.
The Victorian court hierarchy

– criminal jurisdictions 3.1.7.1
The Victorian court hierarchy is composed of five courts, with the lowest court being
KEY TERM
the Magistrates’ Court and the highest Victorian court being the Supreme Court –
Court hierarchy the arrangement Court of Appeal. While these are the main courts, there are also subdivisions of the
of courts in order of superiority. Magistrates’ Court, like the Koori Court. The highest court in Australia is known as
the High Court of Australia, which deals with federal and constitutional matters.
LEGAL VOCABULARY
Each of the Victorian courts has its own jurisdiction, which refers to the power and
High Court of Australia the most legal authority of a court to hear a case. The original jurisdiction of a court refers to
superior court in Australia that hears its ability to hear a case for the first time. For lower courts in the hierarchy, like the
matters of federal significance and
Magistrates’ Court, its original jurisdiction is limited to determining minor criminal
appeals from federal, state, and
territory courts. offences, like petty theft, whilst the original jurisdiction of higher courts, like the
County Court, allows it to determine more serious offences, like culpable driving.
Jurisdiction the legal power of a court
or other authority to make decisions. Additionally, certain courts have appellate jurisdiction, which permits them to hear
Original jurisdiction the legal power of and review a case after the original trial through an appeal. If a party is unsatisfied with
a court or other authority to hear a case the outcome of their case, they may apply for leave to appeal and have the decision
for the first time. of the case reviewed by a higher court. It is important to note that the reasons for and
Appellate jurisdiction the legal power jurisdictions of the Victorian court hierarchy differ between criminal and civil law.
of a court to review a decision of a lower
court or tribunal on appeal.
Leave to appeal formal permission WANT TO KNOW MORE?
to appeal the outcome of a case You can find out more about the caseload and types of offences heard in each court
to a higher court. by searching ‘Courts and VCAT caseload data’ and clicking the ‘Court Services Victoria’
(2023) webpage.

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Most superior High Court of Australia KEY TERMS
Supreme Court – Court of Appeal Magistrates’ Court of Victoria the
2D THEORY
Court House
first level of the Victorian court system
Supreme Court – Trial Division in which relatively minor matters
County Court are heard and determined by judicial
officers, such as magistrates.
Least superior Magistrates’ Court County Court of Victoria Victoria’s
principal trial court that hears and
Figure 1 The Victorian court hierarchy
determines criminal and civil matters.
Supreme Court of Victoria the most
LESSON LINKS superior court in Victoria that deals
with the state’s most serious criminal
You will learn more about the Victorian court hierarchy and civil cases in 5C The
and civil cases.
Victorian court hierarchy and civil disputes.
You learnt about summary and indictable offences in 1A Key principles of the criminal
justice system.
Table 1 The original and appellate criminal jurisdiction of Victorian Courts
Court Original criminal jurisdiction Appellate criminal jurisdiction

Magistrates’ Court • Summary offences No appellate jurisdiction
of Victoria • Indictable offences heard summarily
• Applications for warrants
• Bail hearings
County Court Trials for most indictable offences, such as: Appeals from the Magistrates’ Court in cases
of Victoria • rape where the:
• armed robbery • offender is appealing against

the conviction.
• serious drug offences.
• offender(s) or the prosecution is appealing the
sanction imposed.
Supreme Court Unlimited criminal jurisdiction, but in practice Appeals from the Magistrates’ Court based on
of Victoria - Trial conducts trials only for the most serious indictable questions of law
Division offences, such as:
• murder and manslaughter
• terrorism offences.
Supreme Court No original jurisdiction Generally, three justices will preside

of Victoria - Court over an appeal case. All appeals for crimes originally
of Appeal heard by a judge and jury in the County Court or
Supreme Court – Trial Division can be heard in the
(Often referred
Court of Appeal.
to as the Court
of Appeal) This includes appeals against the sanction imposed,
questions of law, and appeals against a conviction.
Specialisation 3.1.7.2
Courts are able to develop expertise in different areas of law as the court hierarchy
KEY TERM
facilitates specialisation through the different levels in the court structure. The
Victorian court hierarchy allows each court to become familiar with hearing certain Specialisation the process of a court
types of criminal cases and the laws and procedures relevant to these cases. As a result developing expertise in a particular
of specialisation, criminal cases are resolved in a more efficient manner. For example: area of law as a result of hearing similar
matters regularly.
• the Supreme Court – Trial Division has experienced justices with expertise in laws
for the most serious indictable offences, like murder, and are knowledgeable about LEGAL VOCABULARY
the process of jury empanelment. Jury empanelment the process of
• the County Court judges specialise in hearing and determining indictable offences, selecting the jurors for a trial, whereby
such as drug trafficking, and are also familiar with the processes of empanelling potential jurors can be found ineligible,
or be disqualified or excused from jury
and managing a jury.
duty for a range of reasons.

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• the magistrates in the Magistrates’ Court are specialised in dealing with minor
USEFUL TIP
criminal offences, like driving offences, and can efficiently hear and determine
When discussing specialisation as a a larger volume of minor cases.
reason for the Victorian court hierarchy
2D THEORY
and criminal cases, it is beneficial to The court hierarchy facilitates specialisation by defining the jurisdiction of each
provide an example to support your court and setting out the criminal matters that are regularly heard and determined
answer. For example, you can elaborate in each court.
on how the judges in the Supreme
Court - Trial Division specialise in
hearing serious indictable offences, like HYPOTHETICAL SCENARIO
murder, to further demonstrate your
understanding of the concept. Terrorism heard in the Trial Division
Toby has been charged with two terrorism offences and will have his case heard in the
Supreme Court – Trial Division. This is because Supreme Court justices have greater
knowledge and expertise to deal with terrorist-related offences, compared to judges
in the lower courts who do not have as much experience to hear such matters.
Appeals 3.1.7.3
If a party is unsatisfied with the outcome of a case, they may appeal the final
KEY TERM
decision and have it reviewed by a higher court. Typically, the party seeking an
Appeal a legal process that appeal, known as the appellant, needs to prove they have valid grounds to appeal
a dissatisfied party may pursue and be granted leave to appeal. Therefore, an appeal is not an automatic right. The
to have a court’s decision reviewed court hierarchy is necessary for the process of appeals as it allows decisions of lower
by a higher court.
courts to be reviewed by higher courts, which would not be possible if the courts
were not ranked based on superiority.
Table 2 Possible grounds for an appeal
Grounds Explanation
Appealing the The prosecution may argue that the sanction imposed does not
sanction imposed adequately reflect the severity of the crime committed, whilst
the offender may appeal the sanction for being excessive.
Appealing on a The dissatisfied party may argue that the legal principles or
question of law legislation have been incorrectly applied or interpreted.
Appealing the The party may appeal the jury or judicial officer’s verdict.
conviction
LESSON LINK LEGAL CASE
You learnt about the Office of Public Lanciana v The King [2023] VSCA 78
Prosecutions in 2B Victoria Legal Aid
Facts
and community legal centres.
In 1994, an elaborate Armaguard van heist occurred in Richmond, in a scheme that
involved fake roadwork sites, construction workers, and customised keys. Decades later,
in 2016, the offender who organised the heist was finally arrested and charged with
armed robbery, false imprisonment, and seven counts of money laundering. In 2021, the
offender was found guilty in a trial by jury and sentenced to 14 years in prison. His legal
counsel sought to appeal his case on the grounds of ‘a substantial miscarriage of justice’
due to directions given to the jury during the trial. The leave to appeal was granted.
Legal issue
The Supreme Court – Court of Appeal needed to determine whether ‘a substantial
miscarriage of justice’ had occurred due to the judge’s directions to the jury in the
original trial.
Decision
The Court of Appeal rejected the appeal to overturn the conviction on such grounds,
finding that the judge’s directions given to the jury did not compromise the original verdict.
Significance
This case demonstrates that even when an accused has valid grounds for an appeal and
leave to appeal, the reversal of the original conviction is not guaranteed.

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Evaluating the Victorian court hierarchy’s ability to achieve the principles of justice during a criminal case
2D THEORY
S
ES
• The existence of a court hierarchy promotes fairness • Some offenders may not be able to appeal the
FAIRN
in the criminal justice system through specialisation. outcome of a case in a higher courts if they cannot
As individual courts are able to develop their afford the fees associated with an appeal. This limits
expertise in dealing with particular crimes and the ability of an offender to have any errors in the
areas of law, cases are presided over by skilled and outcome resolved, meaning in such cases, the court
knowledgeable judges who are able to ensure open hierarchy may not deliver a fair outcome for all.
and impartial processes and thus a just outcome.
EQU
• The court hierarchy facilitates the ability to appeal • Due to the costs associated with an appeal,
ALI
decisions, and all parties have the right to appeal appeals are not equally accessible to all parties.
TY
the outcome of a case, regardless of race, sex, As a government department, the Office of Public
or gender, given their appeal is on valid grounds Prosecutions has the necessary resources to fund
and the judicial officer presiding over the case an appeal, compared to accused individuals, who
has given the party leave to appeal. may not have the resources to do so. Thus, some
parties may face disadvantage in being unable to
appeal against a wrongful outcome due to their
socioeconomic status.
• The court hierarchy promotes access to justice • Grounds for appeal must exist and leave to appeal
by enabling the appeals process to occur, which may be necessary. This may render some cases
facilitates the review of judicial decisions. This ineligible for a review by a higher court, meaning AC
CESS
better enables accused persons to engage with the access to appeals can be limited.
justice system and its processes. • The cost of engaging legal representation for
• Access to the court system is increased due to the the appeals process can be inaccessible to those
specialisation of the courts, as it allows criminal who do not have the financial means. This limits
cases to be resolved in a more efficient manner an accused’s ability to engage with the criminal
due to the knowledge and expertise of judges justice system and its processes.
within a court. Therefore, delays are minimised
and more people can access the criminal justice
system in a more timely manner.
USEFUL TIP
An important key skill in Area of Study 1 of Unit 3 VCE Legal Studies is to ‘evaluate
the ability of the criminal justice system to achieve the principles of justice during
a criminal case’. These tables showing strengths and limitations in relation to each
principle can help you develop this skill in evaluating the ability of the Victorian court
hierarchy to achieve the principles of justice.
Lesson summary
The organisation of the Victorian courts in a hierarchical manner facilitates the swift
and effective delivery of justice for the entire community.
• The Victorian courts are organised from least to most superior: Magistrates’
Court, County Court, Supreme Court – Trial Division, Supreme Court –
Court of Appeal, and the High Court of Australia.
• Each court has different original and/or appellate jurisdiction.
• Two reasons for the Victorian court hierarchy in criminal law are specialisation
and appeals.

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Victorian court system — criminal jurisdictions

2D QUESTIONS

Original jurisdiction: No original juristiction
Appellate jurisdiction: All appeals to crimes originally heard by a judge and jury in the
County Court or Supreme Court - Trial Division, including appeals:
• against the sanction imposed.
• against the guilty conviction based on questions of law.
• against the guilty conviction based on questions of fact.

Original jurisdiction: Unlimited criminal jurisdiction, but in practice conducts trials for
Appeal
• murder and attempted murder
•
Appellate jurisdiction: Appeals from the Magistrates’ Court:
• based on questions of law.
County Court
Original jurisdiction:
• rape
• armed robbery
Appeal
•
• manslaughter.
Appellate jurisdiction: Appeals from the Magistrates’ Court in cases where the:
•
•
Magistrates’ Court
Original jurisdiction: • Applications for warrants
• Committal hearings (hearings determining a weight of evidence
to support a conviction, before a jury trial is held for an
• Bail hearings
•
•
Appellate jurisdiction: No appellate juristiction

Figure 2 Summary of the Victorian court hierarchy and criminal cases
2D Questions
Question 1
The Victorian court hierarchy is:
A. the arrangement of the courts based on superiority.
B. a room where judges make court decisions.
C. the ordering of judges from most to least knowledgeable.
Question 2
All courts have appellate jurisdiction.
A. True
B. False

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Question 3
Mindy has failed to pay a parking fine after multiple warnings and now must attend a court hearing.
2D QUESTIONS
Her case will most likely be heard in the:
A. Supreme Court – Trial Division.
B. Magistrates’ Court.
C. County Court.
Question 4
Fill in the blanks with the following terms:.
cases court expertise
Specialisation refers to a court’s ability to develop in a particular area of criminal law, and in dealing
with specific criminal as a result of the hierarchy.
Question 5
Which of the following can be grounds for an appeal? (Select all that apply)
A. The party is not happy with the result.
B. The party is appealing on a question of law.
C. The party is appealing the conviction.
D. The party disliked the judge who presided over the case.
E. The party is seeking a review of the sanction imposed.
Question 6
Which of the following statements is correct about the jurisdiction of the Court of Appeal?
A. The Court of Appeal has original jurisdiction to hear matters relating to terrorism and national defence.
B. The Court of Appeal has original jurisdiction to hear matters relating to cyberbullying.
C. The Court of Appeal has no original jurisdiction.
Question 7
The Magistrates’ Court can hear murder cases with the permission of the Supreme Court.
A. True
B. False
Question 8
An appeal is an automatic right for all accused persons.
A. True
B. False
Question 9
The Victorian court hierarchy:
A. allows courts to specialise in particular areas of criminal law and enables appeals to take place.
B. only allows for criminal cases to be heard in the High Court.

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Preparing for exams

Standard exam-style
2D QUESTIONS
Outline one reason for the Victorian court hierarchy.
Adapted from VCAA 2016 exam Q1b
With reference to an example, explain how specialisation is facilitated by the Victorian court hierarchy.
Kaya has been sentenced to five years in prison after being found guilty by the County Court of armed robbery.
She wishes to appeal the case.
a. Outline the grounds on which Kaya could appeal her case. 2 MARKS
b. Identify which court would hear the appeal and explain its appellate jurisdiction for criminal offences. 3 MARKS
‘Appeals should not be permitted and a judge’s decision should remain final under all circumstances.’
Do you agree with this statement? Referring to one principle of justice, justify your response.
Extended response
Question 14
Which of the following statements are false regarding the court hierarchy? (Select all that apply)
A. Each Victorian court has a different original and appellate jurisdiction.
B. The court hierarchy ensures judges who are nicer preside over indictable offences.
C. The appeals process is reliant on the courts being ranked from least to most superior, and if a party is
unsatisfied with the outcome of a case, they have the right to apply for leave to appeal and have the final
decision reviewed by a superior court.
D. Each court specialises in dealing with specific matters, which means the judges of the respective courts
are experienced and skilled in dealing with particular areas of criminal law and the relevant court
procedures.
E. The court hierarchy ensures only certain people are allowed access to certain courts based on their sex,
race, and ethnicity.
‘The Victorian Court system would be more effective if there was only one level of courts and the courts were
not ordered from most to least superior.’
Adapted from VCAA 2013 exam Q11

Explain how one right of the accused is promoted through the Victorian court hierarchy.

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2E Judges, magistrates, and juries

in a criminal case
• the roles of key personnel in a criminal case, including the judge or magistrate,
the jury, and the parties
2A 2B 2C 2D 2E 2F 2G 2H 2I
Image: Gorodenkoff/Shutterstock.com
Just as every actor has their own role in a

movie or stage show, there are many roles
3.1.8.1 3.1.8.2 in a courtroom, each carrying different
The role of the judge or magistrate The role of the jury in a criminal case responsibilities. In a criminal courtroom,
in a criminal case it is important that each individual upholds
their duties and follows the correct court
3.1.8.1.1 T
he difference between
a judge and a magistrate processes and procedures to ensure the
achievement of justice.
Lesson introduction
The roles of the judge, magistrate, and the jury in a criminal case are integral
to ensuring criminal trials operate efficiently and justly. Whilst the judges and
magistrates are key figures equipped with legal knowledge to manage a case and
ensure the relevant procedures are followed, jurors can represent the interests and
values of the wider community in the determination of criminal cases.
The role of the judge or magistrate

in a criminal case 3.1.8.1
The judge or magistrate is often referred to as the umpire of the courtroom as they
KEY TERMS
must oversee all personnel and court proceedings, whilst ensuring court rules and
procedures are upheld. Judges are often not required to determine the guilt of the Judge an independent authority
accused, as this is the role of the jury, however, they must ensure the trial proceeds who presides over a trial, ensuring
fairly and impartially. In the Magistrates’ Court, where there is no jury, the magistrate procedural fairness by overseeing all
will always determine the verdict. The judge or magistrate must treat each party personnel and evidence.
equally, remain impartial, and have no connections to either party. Magistrate an independent authority
who presides over hearings in the
The titles of judicial officers vary depending on the court they are in, however, Magistrates’ Court for less serious
they all share the primary role of administering justice. matters such as summary offences,
committal proceedings, and some
The High Court of Australia civil disputes.
• The justices are the umpires of the courtroom
• There are seven justices of the High Court LEGAL VOCABULARY
who hear all High Court cases Justice a judge in a relatively superior
court in the hierarchy, such as in the
Supreme Court
Supreme Court of Victoria or the High
• The justice is the umpire of the courtroom
• There is only one justice per case and Court of Australia.
generally three justices will oversee an appeal
County Court
• The judge is the umpire of the courtroom LESSON LINK
• There is only one judge per case You learnt about the court hierarchy in
Magistrates’ Court 2D The Victorian court hierarchy and
• The magistrate is the umpire of the courtroom criminal cases.
• There is only one magistrate per case
Figure 1 The composition of judges in the court hierarchy

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Table 1 The role of the judge or magistrate in a criminal case
Role Explanation
2E THEORY
Manage the trial A judge or magistrate ensures the proceedings of the trial or
or hearing hearing remain on time and that there is an effective use of
resources. This can involve judges or magistrates using their
powers to control the delivery of evidence and determine
whether this evidence should be presented in oral or
Figure 2 The judge or magistrate plays an written formats.
important role in criminal cases
A judge or magistrate can improve the efficiency of a trial by:
• ensuring correct procedures are followed
• monitoring and adjusting the processes of a trial as
appropriate
• limiting the number of witnesses or topics on which
a witness may be questioned
• limiting examination-in-chief and cross-examination time
LEGAL VOCABULARY
Apply the rules Judges and magistrates are required to make rulings relating
of evidence and to evidence and procedure, such as:
procedures • ensuring only admissible evidence is presented in court.
is, therefore, allowed to be presented
to the court. • ensuring witnesses are examined and cross-examined
Directions orders given by a judge lawfully.
to parties about the way proceedings • giving directions on how evidence is to be presented and
are to be conducted. what documents the jury is permitted to see.
• providing clarity on the rules of evidence and procedure.
LEGISLATION Direct the jury The Jury Directions Act 2015 (Vic) informs the directions the
( judges only) judge gives the jury. It outlines what points of law the judge
Jury Directions Act 2015 (Vic) must explain to the jury to ensure a fair trial. For example,
in most criminal cases, the judge will explain:
• the burden of proof
• the standard of proof
• the key elements of the relevant offence(s)
• the law that applies to the facts
• the evidence presented by both parties.
Remain unbiased A judge or magistrate must remain impartial throughout the

trial process.
Determine the Whilst determining guilt is the role of a jury in the County
guilt of an accused and Supreme courts of Victoria, in the Magistrates’ Court, this
(magistrate only) responsibility falls on the magistrate, who will listen to the
evidence and determine the verdict.
Impose an A judge or magistrate is responsible for imposing a sanction

appropriate if an accused is found guilty.
sanction The Crimes Act 1958 (Vic) informs the type of sanction a judge
LEGISLATION
or magistrate will impose on an offender who has been found
Crimes Act 1958 (Vic) guilty. The Act outlines the maximum sentence for different
crimes to ensure there is fairness and consistency between
court decisions.
LESSON LINKS The judge or magistrate will also consider victim impact
You learnt about the burden of statements and statements from the parties when deciding the
proof and the standard of proof in severity of the sanction.
1A Key principles of the criminal
justice system.
You will learn more about victim
impact statements in 3C Factors
considered in sentencing.

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REAL WORLD EXAMPLE
From school dropout to judicial powerhouse
2E THEORY
Despite dropping out of school at 15, the Honourable Susan Mary Kiefel was appointed
Chief Justice of the High Court of Australia on 30 January 2017. Justice Kiefel studied
law at night while working full-time, and her determination and hard work earned her
Australia’s highest judicial office.
‘Prior to her appointment, Justice Kiefel was already a trailblazer for women in the legal
profession. She was the first female QC appointed in Queensland in 1987,’ said Law
Council President, Stuart Clark AM.
In her speech at the Australian Academy of Law and Charles Darwin University, Kiefel
commented on judicial independence and impartiality:
‘If the public are to have confidence in the judiciary and the courts they must see the courts
Image: ChameleonsEye/Shutterstock.com
as free from influence and pressure. They must believe that they can rely upon the courts
fairly and impartially to hear and determine their cases.’ Figure 3 The High Court of Australia, where
the seven Justices sit, is led by Chief Justice
Adapted from ‘Chief Justice appointment a landmark in Australian history’ (The Law Society of Western Australia, n.d.) Kiefel AC
Evaluating a judge or magistrate’s ability to achieve the principles of justice in a criminal case
S
ES
• An independent judge or magistrate ensures the • Judges and magistrates can only explain court
FAIRN
trial and court procedures are conducted fairly, procedures and legal terminology to the parties and
without bias, and according to the rules of evidence. cannot provide additional legal advice or information
• Judges give directions to the jury and must explain to a self-represented party. This can increase the
the key legal concepts of a criminal trial to ensure likelihood of an unfair trial for self-represented
jurors remain impartial and informed in their individuals due to the complexities and formalities
decision-making. of a criminal trial.
• Judges and magistrates are appointed by the
government and may be more sympathetic to a
particular political ideology. This can potentially
compromise their impartiality and lead to
unfair verdicts.
EQU
• Judges and magistrates ensure rules of evidence • While judges and magistrates are impartial judicial
ALI
and procedure apply equally to both parties and officers, they are still subject to personal bias
are consistent across all criminal trials. and therefore, may subconsciously discriminate TY
against certain parties, hindering equality.
• Judges and magistrates apply court rules that • Judges and magistrates rely on the parties to present
protect victims, providing access for vulnerable all relevant evidence during a trial. If an accused
witnesses to safely give evidence. Some of these person has no access to legal representation, this AC
CESS
protections are contained in the Jury Directions Act may prevent all relevant facts being presented to
2015 (Vic). the court, as judges and magistrates cannot actively
• Judges explain points of law to jury members, seek out evidence that they may need to deliver
allowing jurors to better understand and a verdict or ensure the jury knows all the facts,
participate in the trial. prohibiting the carriage of justice.
USEFUL TIP
An important key skill in Area of Study 2 of Unit 3 VCE Legal Studies is to ‘evaluate the
case’. These tables showing strengths and limitations of judges and magistrates in relation
to each principle can help you develop this skill in evaluating the ability of judges and
magistrates to achieve the principles of justice.

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LESSON LINK DEEP DIVE

You learnt about the ability to give CONTENT WARNING This section explores content that is sensitive in nature, relating
evidence as a vulnerable witness in
2E THEORY
to sexual assault.
1B Rights of an accused.
The Jury Directions Act 2015 (Vic) and the battle for consent
The Jury Directions Act 2015 (Vic) aims to ensure the protection of sexual assault victims.
For example, the prosecution can request that the judge direct the jury on various
issues, such as consent.
The Crimes Act 1958 (Vic) defines consent as ‘free agreement’ and outlines the
circumstances in which a person does not consent:
(a) the person submits to the act because of force or the fear of force, whether
to that person or someone else;
(b) the person submits to the act because of the fear of harm of any type,
whether to that person or someone else or an animal;
(c) the person submits to the act because the person is unlawfully detained;
(d) the person is asleep or unconscious;
(e) the person is so affected by alcohol or another drug as to be incapable
of consenting to the act;
(f) the person is so affected by alcohol or another drug as to be incapable
of withdrawing consent to the act.
Section 46(4)(b) of the Jury Directions Act 2015 (Vic) states that if one of these
circumstances is proven beyond reasonable doubt, the judge must direct the jury that
the victim did not consent.
The difference between a judge and a magistrate 3.1.8.1.1

In Victoria, judges and magistrates are both judicial officers, but they serve different
functions and have different levels of authority within the court system.
Table 2 The differences between judges and magistrates
Judge Magistrate
Court Judges are appointed to the Magistrates preside over the
higher courts of Victoria, such lower courts in Victoria, such as
Court House as the Supreme Court and the the Magistrates’ Court and the
County Court. Children’s Court.
Types of Judges hear and determine Magistrates hear and determine

LESSON LINKS
offences indictable offences, such summary offences, such as
You learnt about summary and as homicide and sexual traffic offences and minor
indictable offences in 1A Key principles
assault offences. criminal offences.
of the criminal justice system.
Magistrates also have the
You will learn more about precedent
in 8B The doctrine of precedent. authority to conduct preliminary
hearings in criminal cases
and make decisions about bail
applications, sentencing, and
WANT TO KNOW MORE? warrant applications.
Magistrates determine cases in other Sentencing Judges have more discretion Magistrates are bound by
courts apart from the Magistrates’
than magistrates when it comes precedent as they reside in
Court, such as the Children’s Court. You
to the length of sentences and the the lowest court and have
can find out more about the difference
types of sanctions imposed. This minimal discretion when it
between the judge and the magistrate
is because judges are appointed comes to sentencing. Precedent
by searching ‘An introduction to the
Victorian courts’ and clicking the to the higher courts based on requires magistrates to follow
‘Victorian Government Solicitor’s their expertise and are expected the previous decisions of all
Office’ (2020) webpage. to exercise their judgement and higher courts.
discretion in accordance with the
law and legal precedent. Continues →

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Table 2 Continued
Judge Magistrate
2E THEORY
Jury Judges must follow the Jury Juries are not used in
directions Directions Act 2015 to ensure Magistrates’ Court hearings, thus
the jury understands the law the Magistrate does not need to
and evidence presented. The abide by the Jury Directions Act
judge does not decide the 2015. Therefore, the magistrate
verdict when there is a jury. determines the guilt of the
offender and their sentence.
The role of the jury in a criminal case 3.1.8.2

A jury is a group of randomly selected people from the electoral roll who are required
KEY TERM
to deliver a verdict in a trial, based on evidence presented to them in court. In criminal
trials, a jury is composed of 12 jurors who act to represent a cross-section of the Jury a group of randomly selected
community. Juries are only used in cases where the accused has been charged with an people who are required to deliver a
indictable offence and has pleaded not guilty. Therefore, a jury is not used for summary verdict in a trial based on the evidence
offences as these are resolved in the Magistrates’ Court by a magistrate alone. Before presented to them in court.
the trial begins the judge will inform the jury of their obligation to deliver a verdict
LEGAL VOCABULARY
solely on evidence presented in court.
Electoral roll the list of names of all
Therefore, this means jurors cannot: Australians who are enrolled to vote.
• conduct personal research In order to enrol to vote, an individual
must be an Australian citizen and over
• discuss the trial with anybody else, including family and friends, except for
18 years old.
fellow jurors when inside the jury room
Verdict a decision made by a judge
• view extraneous information about the case in the news, media, or on social media or jury regarding the guilt or liability
• have relations with either party. of a party.
Jury empanelment the process of
Similarly, the jury is empanelled in a specific way to ensure it is impartial. This includes selecting the jurors for a trial, whereby
excluding certain individuals, such as: potential jurors can be found ineligible,
• those who have committed an indictable offence or be disqualified or excused from jury
duty for a range of reasons.
• lawyers
• police officers
• judicial officers.
Table 3 The role of the jury in a criminal case
Role Explanation
Remain objective Throughout a criminal trial, and when determining the guilt
of the accused, the jury must remain independent and
unbiased toward both parties. Potential jurors who believe
they cannot remain impartial, due to prior connections with
the parties or other factors, including their occupation, are
excused during jury empanelment.
Listen to the The jury must listen to all evidence presented at trial to
Figure 4 The jury plays a vital role in ensuring
evidence presented, ensure the verdict is based on all relevant evidence and facts justice is achieved in criminal trials
judge’s directions, of the case. Therefore, jurors must be alert, take notes, and
and submissions keep track of information throughout the trial. This involves
made by legal listening to any directions given by the judge and explanations
representatives of key legal concepts.
Continues →

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Table 3 Continued
Role Explanation
2E THEORY
Determine the Once all the evidence has been presented to the jury, it must
verdict determine the guilt. A guilty verdict must be determined
beyond reasonable doubt. Jurors must base this verdict solely
on the evidence presented during the trial, disregarding any
personal or external opinions.
Generally, a unanimous verdict must be delivered, meaning all
12 jurors believe the accused is guilty or not guilty. However,
in some cases, a majority verdict, where 11 out of 12 jurors
believe the accused is guilty or not guilty, beyond reasonable
doubt, is accepted by the court.
REAL WORLD EXAMPLE
Playing with spirits: How a ouija board landed four jurors in legal trouble
In a 1994 English murder case, the UK Supreme Court ordered a new trial after four jurors
used a ouija board during deliberations. They made their own ouija board using paper and
a glass with the intention to summon the spirit of the dead victims. They asked so-called
‘spirit’ questions, such as ‘who killed you?’. Shortly after, the accused was convicted and
sentenced to imprisonment for murder.
One month later, the UK Supreme Court was alerted to the issue and ordered a retrial.
The use of the ouija board acted as extraneous information and could have skewed
Image: pablofdezr/Shutterstock.com
the opinions of the four jurors. Jurors must make their decision based on the facts and
evidence presented in court.
Figure 5 Four jurors in the UK used a
Ouija Board to determine the verdict of Adapted from ‘‘Who killed you?’ The ouija board and other controversial times juries were discharged for misconduct’
a criminal case (Orr, 2022)
Evaluating a jury’s ability to achieve the principles of justice in a criminal case
S
ES
• A trial by one’s peers protects democracy, ensuring • Legal cases are complex and technical, making it
FAIRN
verdicts reflect society’s values. This promotes a fair difficult for ordinary individuals to fully understand
trial as the views of the community are accounted the legal terminology and procedures. This
for, whilst providing citizens with an insight into the creates the risk of an unfair verdict, and there is no
legal system. guarantee that jurors have accurately understood
• Jurors cannot seek additional information about the facts of the case as they do not need to provide
the case beyond the courtroom. Their decisions a reason for their verdict. This can lead to an unfair
must only be informed by the evidence and trial for both the accused and the victim(s).
facts submitted in the courtroom, and they are • Juries are used in a very small proportion of
instructed to disregard any external knowledge criminal cases and therefore, can only promote
about the case. This promotes a fair outcome. fairness in relatively few cases.
• While jurors are instructed to remain impartial,
they receive little training on how to do so and may
subconsciously rely on prejudice or bias to inform
their decisions.
EQU
• All accused persons charged with indictable • Some individuals are ineligible or disqualified from
ALI
offences are entitled to a trial by jury, regardless of jury service. Consequently, some accused persons
TY
their wealth, race, or education promoting equality. may feel the jury is not a true cross-section of
• A cross-section of the community is used as a the community and are, therefore, not being
decision-maker, so the accused should feel their judged equally.
case has been decided by their independent equals. • Jury trials are not available for summary offences,
This also helps to disperse any potential bias held meaning access to a jury trial is not equal across
by a single decision-maker, as the decision is made the types of offences.
by a group.

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• The presence of a jury ensures less legal jargon • Very few matters are tried by jury, as most
2E THEORY
and more plain English is used during a trial to criminal offences are summary offences heard
enable the jury to have a clear understanding of its in the Magistrates’ Court. As such, relatively few AC
CESS
responsibilities and the court’s procedures. This accused persons can access a jury trial.
can also ensure the accused, if self-represented, • The use of juries can create delays. The jury must
understands the case and trial process, promoting be empanelled, evidence and legal terminology
access to justice. must be explained, and deliberations have to
occur. In the instance of a hung jury or mistrial
due to juror misconduct, a retrial is required.
Delays can limit a party’s access and contribute
to a backlog of court cases. This impacts access
to justice for all individuals engaging with the
criminal justice system.
USEFUL TIP LEGAL VOCABULARY

It is a common misconception to believe the jury is responsible for determining an Hung jury a jury that cannot reach
appropriate sanction for the accused in a criminal case. Rather, a jury only determines a unanimous verdict or a majority
the guilt of the accused beyond reasonable doubt. The judge will always decide on the verdict as required, depending on the
sanction imposed on a guilty offender. type of trial.
Lesson summary
The judge, magistrate, and jury play critical roles in ensuring the appropriate legal
processes and procedures are followed to uphold the principles of justice.
The general role of the judge and magistrate is to:

• act as an impartial umpire
• ensure rules of evidence and procedure are followed
• decide the sentence of a guilty offender
• ensure a fair trial.
The judge has the additional role of directing the jury in criminal trials, and ensuring
they understand points of law and evidence. The magistrate does not have to direct
the jury, as there is no jury in the Magistrates’ Court, but has the additional role of
deciding the verdict.
The role of the jury is to:

• represent the interests of the broader community
• listen carefully to the court proceedings
• determine the offender’s guilt beyond reasonable doubt.

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2E Questions
2E QUESTIONS

Question 1
Which of the following statements most accurately describes a judge?
A. An impartial adjudicator in charge of deciding the verdict and overseeing all personnel.
B. A person in charge of directing the jury as per the Jury Direction Act 2023.
C. The ‘umpire’ of a courtroom overseeing all personnel, and evidence, whilst upholding rules and procedure.
Question 2
The jury decides the verdict and sentence of the offender.
A. True
B. False
Question 3
Which of the following are key responsibilities of the magistrate during a criminal trial? (Select all that apply)
A. Advise the jury on the applicability of relevant law to the facts of the case before them.
B. Ensure courtroom processes and procedures are followed by all individuals present during the trial.
C. Question witnesses to draw out the evidence relevant to the offence being prosecuted.
D. Act as an independent ‘umpire’ who oversees and adjudicates proceedings without bias, allegiances,
or preconceived notions.
Question 4
Which jurors are most likely the reason a mistrial would be ordered?
Name of juror Descriptor

Aixin Did not disclose that she is related to the victim.
Bellamy Made a pact with three other jurors that they would all vote the same.
Cora Spoke privately with the accused.
Dion Is the same age as the accused.
Ethan Did not tell the judge that he went to school with the accused.
Fatima Took one criminology class in University 20 years prior.
A. Aixin.
B. Aixin, Cora, and Ethan.
C. Aixin, Bellamy, Cora, and Ethan.
D. Fatima and Aixin.
Question 5
The judge is able to assist the jury with understanding areas of law and deciding on a verdict.
A. True
B. False
Question 6
The jury is able to conduct external research to ensure they fully understand the case.
A. True
B. False

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Question 7
2E QUESTIONS
fairness equality access
Judges and magistrates rely on the parties to present all relevant evidence during a trial. If an accused person has no
legal representation, this may prevent the principle of from being achieved.
Question 8
A trial by one’s peers protects democracy, ensuring decisions are based on the facts and reflect community values.
This promotes by engaging citizens in and informing them about the legal system.
Preparing for exams

Standard exam-style
Explain one role of a jury in a criminal case.
Aayush is set to face trial in the County Court after pleading not guilty to aggravated burglary. He intends
to represent himself despite not having any prior legal knowledge or experience.
Outline the role of the judge in Aayush’s case.
Distinguish between the role of a judge and a magistrate.
Extended response
Question 12
Which of the following statements are roles of the judge that promote the achievement of fairness?
A. Judges can assist accused persons without legal representation by presenting evidence and questioning
witnesses on their behalf.
B. An independent judge ensures the trial is conducted without bias and according to the rules of evidence.
C. Giving directions to the jury ensures jurors understand the basic elements of a criminal trial.
D. Judges are impartial judicial officers but are still subject to personal bias and may unconsciously
discriminate against certain parties.
Evaluate how the role of the judge in a criminal case contributes to the achievement of the principle of fairness.

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Question 14
2E QUESTIONS
Tick the box to indicate whether the following statements are strengths or limitations of judges and juries
in a criminal case.

I. Juries are comprised of a cross-section of the community that represents a diverse range
of views. The use of juries helps ensure the legal system is accountable to the people.
II. Judges have extensive legal expertise and training, which allows them to interpret complex
legal concepts and apply them correctly to a criminal trial.
III. Jury members are ordinary and randomly selected individuals of the general public, so may
not be equipped with legal reasoning skills. Consequently, the jury’s verdict may be incorrectly
informed or lack consideration of key legal principles.
IV. Jurors are likely to be influenced by personal prejudices and emotions, increasing the risk
of an unfair verdict that is based on their biases as opposed to the facts of the case.
V. Judges are familiar with legal precedents and the principles of legal reasoning, which allows
them to make justified rulings that ensure a fair trial.
VI. Judges have experience in setting aside their personal beliefs so as to remain impartial and
unbiased in their rulings.
VII. Judges are government-appointed officials and may be subject to political pressure or biases.
‘Juries should not determine the verdict of an accused. A judge has more legal expertise, meaning they should
determine the guilt of an offender instead.’
To what extent do you agree with this statement? Justify your response.

JURY DIRECTIONS ACT 2015 – SECT 64

(1) In explaining the phrase 'proof beyond reasonable doubt' under section 63 , the trial judge may—
(a) refer to—
(i) the presumption of innocence; and
(ii) the prosecution’s obligation to prove that the accused is guilty; or
(b) indicate that it is not enough for the prosecution to persuade the jury that the accused is probably
guilty or very likely to be guilty; or
(c) indicate that—
(i) it is almost impossible to prove anything with absolute certainty when reconstructing past
events; and
(ii) the prosecution does not have to do so; or
(d) indicate that the jury cannot be satisfied that the accused is guilty if the jury has a reasonable
doubt about whether the accused is guilty; or
(e) indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility.
Explain how the Jury Directions Act 2015 (Vic) ensures the jury understands the concept of the standard of proof.

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2F The parties in a criminal case

• the roles of key personnel in a criminal case, including the judge or magistrate,
the jury, and the parties
2A 2B 2C 2D 2E 2F 2G 2H 2I
Image: Billion Photos/Shutterstock.com
A criminal case is like a game of tug of war,

with the prosecution and accused acting as
3.1.9.1 The role of the prosecution 3.1.9.2 The role of the accused the teams, pulling on opposite ends of the
rope. Each team is determined to win, using
all their strength and strategy to convince
the magistrate or jury of their story. It is a
battle of wits and evidence, and the team
that pulls the most convincingly towards
their side will come out on top.
Lesson introduction
Each party in a criminal case has an important role to play in the conduct
of the hearing. As the prosecution brings a criminal case to court on behalf
of the Commonwealth or the state, its primary focus is to achieve a guilty verdict.
Alternatively, the accused is the party charged with a criminal offence that may try
to cast doubt in the minds of the jurors to prevent a guilty verdict being delivered.
The role of the prosecution 3.1.9.1

Throughout a criminal trial, the prosecution aims to convince the judge or jury that
KEY TERM
the accused is guilty beyond reasonable doubt. To do this, the prosecution presents
all the relevant evidence in support of its case. Therefore, the prosecution has various Prosecution the party that acts on
roles when presenting its case. behalf of the Commonwealth or a state
and brings a criminal case to court.
Table 1 The role of the prosecution in a criminal case
Role Explanation
Give an opening and At the start of the trial, the prosecution is required to give
closing address a statement outlining the charges the accused is facing,
alongside the evidence it intends to rely on at trial.
At the conclusion of the trial, the prosecution is
required to give a statement summarising its arguments
and outlining why the accused is guilty beyond
reasonable doubt.
Determine which The prosecution must call all relevant witnesses,

witnesses are called rather than those who tend to support a guilty verdict,
to give evidence during to allow the full truth to emerge. For example, the
the trial prosecution cannot decide against calling a witness to
a crime because their evidence may lead a jury to have
doubts about the accused person’s guilt.
Present evidence at trial As the prosecution has the burden of proof, it must
present evidence to prove the accused is guilty beyond
reasonable doubt.
Continues →

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Table 1 Continued
LEGAL VOCABULARY Role of the prosecution Explanation

2F THEORY
Examination-in-chief the questioning Communicate with Before a witness is required to give evidence at trial, it
of a witness in court by the party who victims of crime and is the role of the prosecution to explain the procedural
called that witness to give evidence. other witnesses, about rules of the court. For example, the prosecution should
Cross-examination the interrogation the trial process communicate the process of examination-in-chief
in court of the opposing party’s and cross-examination.
witness who has already testified,
Make submissions to If an accused person is found guilty, the prosecution
in order to check or discredit the
the court in relation to will make submissions to the court about the
witness’s evidence.
sentencing appropriate sanction to impose.
USEFUL TIP
You may have noticed that in case names, the prosecution is represented in different ways.
In the end-of-year exam, you should be able to identify whether a case is a criminal or civil
case from this name. Examples of different ways criminal cases are presented include:
• Chamberlain v The Queen (No 2) (1984) 153 CLR 521 – In this case, the prosecution
is referred to as ‘The Queen’ as the prosecution was representing the Queen in the
right of the Commonwealth. Since her passing, all new cases of this kind now use
‘The King’.
LESSON LINKS • Jones vs The Crown (1988) 12 QLCR 126– In this case, the prosecution is referred
to as ‘The Crown’ as the prosecution is representing the King in the rights of the
You learnt about the role of the
Commonwealth.
judge and jury in a criminal case in
2E Judges, magistrates, and juries • R v Bayda (No 8) [2019] NSWSC 24 – In this case, the prosecution is referred to
in a criminal case. as ‘R’, which is an abbreviation of ‘Rex’ or ‘Regina’, meaning ‘King’ or ‘Queen’.
You will learn more about legal • Director of Public Prosecutions (DPP) v Smith [2019] VSCA 266 – In this case, the
practitioners in 2G Legal practitioners prosecution is referred to as the ‘Director of Public Prosecutions’, which is the office
in a criminal case. responsible for the prosecution of criminal offenders.
LEGAL CASE
Silence! Duong v R [2017] VSCA 78

Facts
Duong was found guilty, in the County Court, of attempting to possess a commercial
quantity of cocaine and appealed against the conviction to the Court of Appeal.
In the opening address to the jury of the original trial, the judge interrupted the defence
counsel on a number of occasions for making points that are usually addressed in closing
statements. The defence asked the judge to discharge the jury on the basis that the
judge’s interruptions ‘infected’ the jury against him, which the judge refused to do.
Duong was convicted and later appealed, arguing the judge made an error in not
discharging the jury.
Legal issue
The legal issue in this case was whether there was prejudice against the accused caused
by the jury not being discharged.
Decision
The court affirmed that the points being made by the defence counsel in the opening
statement were more appropriate for closing addresses and therefore, the judge was
entitled to interrupt the defence counsel’s opening address.
Figure 1 The judge interrupted the defence Significance
counsel for not properly presenting its opening
statement This case outlines the importance of the prosecution and defence engaging in and not
straying from their specific roles, particularly in providing opening and closing addresses.

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The role of the accused 3.1.9.2

In a criminal trial, the accused does not have to present any evidence and instead,
KEY TERM
2F THEORY
may elect to exercise their right to silence. However, the accused may wish to place
doubt in the jurors’ minds in an attempt to prevent the prosecution from meeting Accused the party who is charged
the threshold of beyond reasonable doubt. To do this, the accused may disprove and with a criminal offence.
deny the prosecution’s arguments and evidence, or present evidence of their own
that contradicts the prosecution’s case. Therefore, the accused has a number of roles
when presenting their case. LESSON LINK
Table 2 The role of the accused in a criminal case You learnt about an accused’s right
to silence in 1B Rights of an accused.
Role Explanation
Enter into a plea of The accused must either plead guilty or not guilty to
‘guilty’ or ‘not guilty’ the charge(s) against them. If the accused pleads guilty,
the matter will proceed to a sentencing hearing. During
this process, the prosecutor will read out a summary
of the alleged facts, and the prior convictions of the
accused, if any. Following this, the accused is provided
with the opportunity to say anything, including an
expression of disagreement with the facts presented
by the prosecution. Finally, the judge or magistrate will
announce an appropriate sentence for the offender.
However, if an accused pleads not guilty, the matter
will proceed to trial.
Present evidence and Whilst the accused is not required to present evidence,
decide which witnesses as they do not have the burden of proof, the accused
to call may choose to do so. This can assist in disproving the
prosecution’s case by providing evidence, or questioning
witnesses to contradict the prosecution’s argument.
Decide which lawful Where an accused raises a specific defence, such as

defence(s) to put self-defence, the burden to prove this defence falls
to the court upon the accused.
Be present at all court In most criminal cases, the accused is required to

proceedings related to be present in court throughout the criminal trial.
the case However, when an accused is being tried for offences
that can be heard in their absence, including some
summary offences, they may not be required to attend.
DEEP DIVE
Lawful offences
An accused may defend a criminal charge by relying on a lawful defence, such as
self-defence. The Crimes Act 1958 (Vic) outlines the requirements for an accused LEGISLATION
relying on self-defence, including the fact that they have the burden of proving they
acted in self-defence. Section 322K of the Act states: Crimes Act 1958 (Vic)
(1) A person is not guilty of an offence if the person carries out the conduct
constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if—
(a) the person believes that the conduct is necessary in self-defence; and
(b) the conduct is a reasonable response in the circumstances as the person
perceives them.
(3) This section only applies in the case of murder if the person believes that the
conduct is necessary to defend the person or another person from the infliction
of death or really serious injury.
Therefore, if the elements of this defence are proven, the accused will be found not
guilty of the offence.

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Evaluating the parties’ ability to achieve the principles of justice during a criminal case
2F QUESTIONS
S
ES
• Both the prosecution and the accused are given • Self-represented parties may struggle to
FAIRN
the opportunity to present their case to the court, understand how to present legal arguments and
ensuring fair and impartial processes. evidence in the best light, which may lead to an
• There is no requirement for the accused to present incorrect and unfair case outcome.
evidence to prove their case. This ensures fairness • If an accused does not present any evidence and
as it is not their role to prove their innocence, but remains silent, this may be viewed as an admission
rather, the prosecution’s role to prove their guilt. of guilt, which may lead to an unfair case outcome.
EQU
• Both the prosecution and the accused are given • Self-represented parties may be at a disadvantage
ALI
the same opportunity to present their case to if they do not understand court processes and are
TY
the court. unable to present all relevant evidence to prove

their case. This creates inequality between the
prosecution and accused.
• The courts provide some general guidance • Self-represented parties may struggle to
regarding court procedures to parties who are understand how to present legal arguments and
AC representing themselves, therefore promoting evidence in the best light, limiting access to justice.
CESS
access to justice. • An accused may plead guilty on the basis that
they do not understand their rights and do not
think they will present their case in the best light
possible, reducing access to justice.
USEFUL TIP Lesson summary

An important key skill in Area of Study 1 • The parties in a criminal case each have their own roles that align with their
of Unit 3 VCE Legal Studies is to
overall objective.
‘evaluate the ability of the criminal
justice system to achieve the principles • The prosecution is required to present all relevant evidence to prove the accused
of justice during a criminal case’. is guilty beyond reasonable doubt.
These tables showing strengths and
• The accused does not have to present any evidence, but may do so to plant doubt
limitations in relation to each principle
in the minds of the jurors in an effort to ensure a not guilty verdict.
can help you develop this skill in
evaluating the parties’ ability to achieve • However, both parties must complete their roles in a way that aligns with the
the principles of justice. rules and procedures of the court to ensure the principles of justice are upheld.
2F Questions
Question 1
The parties involved in a criminal case include the prosecution and accused.
A. True
B. False

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Question 2
Which of the following statements is incorrect about the parties in a criminal case?
2F QUESTIONS
A. The prosecution must call all relevant witnesses to assist the emergence of the full truth, and not just
those that will help secure a guilty verdict ‘at all costs’.
B. Only the prosecution is permitted to call witnesses to present evidence to the court.
C. The accused is responsible for deciding how to plead.
D. The prosecution will present the relevant legal principles of the offence being tried to the court.
Question 3
Which of the following are roles of the accused in a criminal case?
A. Prove their innocence beyond reasonable doubt.
B. Enter a plea of ‘guilty’ or ‘not guilty’.
C. Decide which lawful defence(s) they wish to present in court.
D. Talk to witnesses and bribe them so they do not give evidence at trial.
Question 4
examination-in-chief cross-examination
Where a witness is questioned by the party who called them to give evidence, this is referred to
as .
Question 5
Which of the following are roles of the prosecution in a criminal case?
A. Give an opening and closing address.
B. Communicate with victims of crime and other witnesses about the trial process.
C. Present evidence at trial.
D. Speak to jurors independently outside of the courtroom to convince them the accused is guilty.
Question 6
Tick the box to indicate whether the following statements are strengths or limitations of the role of the parties
in achieving the principles of justice.

I. Both the prosecution and the accused are given an equal opportunity to present their case
to the court.
II. Self-represented parties may struggle to understand how to present legal arguments and
evidence in the best possible light, which may lead to an incorrect case outcome.
III. The courts provide some guidance of a general kind to parties who are representing themselves,
regarding court procedures.
IV. Self-represented parties may be at a disadvantage to the prosecution if they do not understand
court processes and are unable to present all relevant evidence to prove their case.

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Question 7
The prosecution’s primary focus is to achieve a guilty verdict, whereas, the accused’s aim is to cast doubt
in the minds of the jurors to ensure a verdict of not guilty is delivered.
2F QUESTIONS
A. True
B. False
Preparing for exams

Standard exam-style
Outline one role of the prosecution and the accused in a criminal case.
Aki has been charged with manslaughter. He has pleaded not guilty and has a witness who he wants to call
to support his case.
Explain the role of Aki in his criminal case.
Explain how the role of the parties in a criminal case could achieve the principle of fairness.
Extended response
Callum has been charged with culpable driving after being involved in a collision with Lorenzo. Callum
is sure he did not cause the collision and believes he has a witness to illustrate this. However, he cannot
afford legal representation and is unsure about legal processes and procedures, particularly in relation
to the best way to question his witness.
Question 11
Which of the following statements are correct in relation to the role of the parties if Callum’s case goes to trial?
A. The prosecution has the role of calling witnesses to give evidence during Callum’s trial. This may include
calling witnesses to prove that Callum caused the collision with Lorenzo.
B. Callum has to present evidence and call upon the witness that shows he did not cause the collision with
Lorenzo, to prove his innocence.
C. As the prosecution must call all relevant witnesses to assist the emergence of the full truth, they will
be required to call the witness that alleges Callum caused the collision with Lorenzo.
D. Callum is representing himself, as he cannot afford legal representation, therefore, he may not question
the witness properly, potentially damaging his case.
Assuming Callum’s case goes to trial, discuss the roles of both parties involved in this case.

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2F QUESTIONS
Question 13
Tick the box to indicate whether the following statements are strengths or limitations of the role of the parties
and the judge in achieving the principle of equality during a criminal case.

I. Whilst judges are impartial judicial officers, they are still subject to personal bias and therefore,
may unconsciously discriminate against certain parties.
II. Both the prosecution and accused have an equal opportunity to present their case, as both
parties can present evidence and call upon witnesses.
III. A self-represented accused may be disadvantaged if they do not understand court processes
and are unable to present all relevant evidence to prove their case.
IV. Judges have a role in ensuring rules of evidence and procedure apply equally to both parties
during a criminal trial.
Discuss the extent to which the role of the parties and the judge in a criminal case upholds the principle of equality.

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2G Legal practitioners in a criminal case

• the need for legal practitioners in a criminal case
2A 2B 2C 2D 2E 2F 2G 2H 2I
Image: engel.ac/Shutterstock.com
Legal practitioners in a criminal case are

like skilled architects constructing a tower
of justice. The accused’s lawyer, a masterful 3.1.10.1 3.1.10.2
designer, builds walls of protection for the An introduction to legal The need for legal practitioners
accused, crafting a sturdy strategy to defend practitioners in a criminal case in a criminal case
against criminal accusations. The prosecutor,
an artful engineer, constructs a bridge of
evidence, connecting guilt to the accused.
Lesson introduction
Lawyers, also referred to as legal representatives or legal practitioners, play an
important role in criminal trials as they prepare cases and bring them to court on
behalf of the parties. Accused people, especially those charged with an indictable
offence, should have legal representation to assist them in understanding their legal
rights and how to present their case in the best light. Without legal representation,
an accused would have to prepare and present their case alone, and potentially even
question their own alleged victims in court. The right to legal representation is a
fundamental international human right, as well as a right outlined in Victorian and
Commonwealth legislation.
An introduction to legal practitioners

In most cases, accused individuals seek the guidance of a solicitor as their initial step
KEY TERMS
in dealing with criminal proceedings. Solicitors are legal practitioners who primarily
Solicitor a lawyer who advises clients focus on assisting clients with various day-to-day legal matters and concerns out of
about legal matters, prepares legal court. They bear the responsibility of fulfilling numerous legal obligations and duties,
documentation for trial, communicates including offering clients advice and strategies to address a wide range of legal issues.
with the other party’s legal
The main difference between barristers and solicitors is that solicitors advise clients
representation, researches the relevant
on a broad range of legal issues outside of the courtroom or prior to a trial, whilst the
laws, and when required engages
the services of a barrister and briefs barrister primarily serves as a legal representative for clients to present arguments
them to represent a client in court. and evidence before a judge and jury. Unlike solicitors, barristers generally operate as
Legal practitioner a lawyer with an independent, self-employed practitioners and receive instructions from the solicitor
Australian legal practising certificate. managing the case in regard to their courtroom actions. Their professional focus is
Barrister a self-employed lawyer predominantly centred around courtroom proceedings, rather than the day-to-day
who regularly appears in court legal matters of their clients.
and is responsible for representing
a party in a trial by making legal
arguments, questioning witnesses,
and summarising the case to the judge
and/or jury.

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DEEP DIVE
Solicitors in the courtroom
2G THEORY
Although solicitors have the legal authority to represent their clients in court, they
tend to engage barristers to handle courtroom appearances and seek guidance on legal
proceedings. Traditionally, solicitors primarily appear in court for preliminary and interim
hearings, leaving the formal argument stage to barristers. However, there are solicitors,
especially those specialising in specific legal areas, who choose to personally appear on
behalf of their clients instead of engaging a barrister.
Solicitors have the legal ability to assume all the responsibilities in court that are typically Image: Worawee Meepian/Shutterstock.com
attributed to barristers if they determine it to be in the best interest of their clients. Figure 1 Solicitors usually have a primary role
outside the courtroom but, in some cases,
Adapted from ‘Barrister vs Solicitor: Their Different Roles in Your Legal Matter’ (Owen Hodge Lawyers, 2022) may appear in court
The need for legal practitioners

Section 197 of the Criminal Procedure Act 2009 (Vic) establishes that a court has the LEGISLATION
power to adjourn a trial until legal representation has been provided to an accused,
as long as the court is satisfied the accused will be unable to: Criminal Procedure Act 2009 (Vic)
• have a fair trial without legal representation

• afford the full cost of private legal representation.
WANT TO KNOW MORE?
Therefore, this right to legal representation does not extend to those who chose not You can find out more about solicitors
to engage in private legal representation, despite having the financial means to do so. and who can practise as a solicitor
Furthermore, if an accused refuses to be represented by Victoria Legal Aid (VLA), by searching ‘Victorian legal services
the trial will progress with the accused voluntarily self-representing. However, - practising law’ and clicking the
this inclusion in the Criminal Procedure Act 2009 (Vic) signifies the justice system’s ‘Victorian Legal Services Board and
Commissioner’ (2020) webpage.
awareness of the need for legal representation in criminal cases.
Table 1 The reasons for needing legal practitioners in a criminal case
Reason Explanation
Uphold the rule of law The rule of law requires accused persons
LEGAL VOCABULARY
to receive a fair and impartial trial.
By receiving legal advice or representation Rule of law the principle that the law
in a trial, fairer outcomes can be promoted applies to everyone equally regardless
as the accused can represent their case of status.
in the best possible light by their lawyer
articulating relevant evidence and
appropriate legal principles. LESSON LINKS
According to the Law Council of Australia, You learnt about Victoria Legal Aid
for the rule of law to be upheld: (VLA) in 2B Victoria Legal Aid and
• everyone should have access community legal centres.
to competent and independent You learnt about an accused person’s
legal advice rights in 1B Rights of an accused.
• the law must be both readily known You will learn more about mitigating
and available, and certain and clear. factors in 3C Factors considered
in sentencing.
By gaining legal advice, the law can be
presented to an accused in a more certain
and clear manner as legal practitioners
are experts in the law. Therefore, accused
persons can better understand their rights,
such as the right to silence, and the legal
proceedings they will be involved in.
Continues →

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Table 1 Continued
Reason Explanation
2G THEORY
Ensure an accused understands legal The Criminal Procedure Act 2009 (Vic) sets out the process of criminal proceedings in
proceedings Victoria, explaining all aspects of this process, such as:
• how a criminal proceeding is commenced
• committal proceedings
• directions hearings
• which written pleas of the guilty may be accepted
• the manner in which evidence must be presented
• how to appeal a criminal conviction.
Criminal proceedings may be difficult to comprehend for those with limited knowledge
of the law. However, by obtaining legal advice or hiring a legal practitioner, an accused can
be guided through each step of the process.
Prevent an accused from having to Where an accused has no legal representation, they will have to question witnesses
personally question witnesses themselves. Witnesses may include:
• the victim of the crime
• another person with direct information about the criminal matter
• an expert witness who can provide their specialist opinion about an issue.
To be questioned by the person who committed an offence against you can be an extremely
traumatic and emotional experience for victim(s) of the crime.
An accused may also struggle to question witnesses independently, as there are strict
rules surrounding the scope of questions that can be asked to a witness. An accused may
not understand such rules, therefore they may ask irrelevant questions to witnesses,
potentially hindering their case or infringing the rules of the trial.
Provide support Being questioned by the police during a police investigation or sitting in court as your
actions are being analysed by the OPP is a daunting and high-stress experience for an
accused, particularly for those who are experiencing their first interaction with the
criminal justice system. Therefore, having a legal practitioner by one’s side during these
stressful experiences can provide comfort to an accused. In turn, an accused may be able
to act more calmly and rationally when talking to the police or a court, which can assist
them in presenting their case in the best possible light as they are perhaps more likely to
be viewed as honest and trustworthy.
Provide objectivity An accused person, who is personally involved in the case, may struggle to view the
evidence against them objectively. However, a legal practitioner has a greater ability to
look at the facts of the case from an impartial point of view, allowing them to identify
weaker or stronger points in the prosecution’s evidence against the accused. This can
allow a stronger defence case to be built without the interference of emotions.
Help an accused to receive a fairer A criminal lawyer who is experienced with previous, similar criminal cases can build
outcome a more compelling defence against the prosecutions’ accusations. By receiving a tailored
defence to their case, a represented accused may be able to access fairer outcomes than
a self-representing individual with limited experience in law. This can ensure:
• an innocent accused is not wrongfully found guilty.
• an accused found guilty receives an adequate sanction that, in some cases, may be less
severe, as a lawyer can argue that certain mitigating factors apply in the case.
• an accused is able to appeal their conviction or sentence if they feel they were wrongly
found guilty or inappropriately sentenced, as the appeals process can be complex and
an accused may be unable to navigate it themselves.
LEGAL VOCABULARY WANT TO KNOW MORE?

Mitigating factors aspects of an Say you were representing yourself in a criminal case, where would you begin? Victoria
offence or the offender that render the Legal Aid has a webpage dedicated to self-representing accused persons, providing
offending less serious and can lead to a information about criminal proceedings, including what an accused should wear, what
less severe sentence. behaviours they should avoid to show respect in court, and what factors they should
raise in a guilty plea. You can find out more by searching ‘Representing yourself
in a criminal case’ and clicking the ‘Victoria Legal Aid’ (2022) webpage.

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REAL WORLD EXAMPLE
CONTENT WARNING This example explores content that is sensitive in nature, relating
2G THEORY
Prisoners’ plan for prison release
In 2018, a former deputy mayor, was accused of shooting his brother in New South Wales
and then travelling across the border to shoot their elderly mother, killing them both.
He pleaded not guilty to murder but was put on remand in prison, where he remained
until his trial. He could not engage private legal representation because his financial
assets were frozen. He then refused to accept a lawyer from Victoria Legal Aid (VLA),
therefore requiring him to self-represent.
In 2020, the accused self-represented during an application for bail. He informed the
Image: Tapui/Shutterstock.com
court he planned to plead a defence to the murders, but felt he could not attempt to argue
Figure 2 A former deputy mayor
a defence until he was able to obtain ‘relevant information’ from legal sources. He told experienced difficulties in accessing legal
the court he was experiencing difficulties in accessing legal information to present at trial information to defend his murder accusations
from the Port Phillip Prison where he was being kept, considering he was blocked from as a self-representing accused person
using the prison library. The judge, during this bail application, informed the accused that
he ‘would be better off being represented’. His bail application was not granted.
In June 2023, the accused’s trial for the murder of his mother began in the Victorian Supreme
Court, where he was still self-representing after rejecting the offer to have an appointed
lawyer from VLA. As of September 2023, he is yet to be found guilty of either murder.
The difficulties the accused faced in accessing legal information and understanding legal
principles, including what defences he could present to a murder charge, demonstrate
the need for legal representation, as lawyers can more easily access and understand legal
information for the presentation of a compelling case.
Adapted from ‘Murder accused Paul Cohrs applies for bail, arguing he can’t mount defence from prison’ (Testa, 2020)
and ‘Man accused of shooting mother with shotgun deemed fit for trial, despite delusional disorder’ (Clark, 2023)
The uneven scales of justice: How legal representation makes a difference

in an accused’s fate
Jordan and Dimitri find themselves accused of a serious crime. Jordan has a defence
team, whilst Dimitri has decided to represent himself.
Jordan’s defence team works tirelessly to protect their client’s rights and advocate
for Jordan’s innocence. The solicitor gathers evidence, interviews witnesses, and
uncovers relevant legal precedents. The barrister, an expert in courtroom advocacy,
crafts compelling arguments, skillfully cross-examines witnesses, and challenges the
prosecution’s case. The combined effort of the legal practitioners results in a robust
defence strategy aimed at securing Jordan’s acquittal and a not guilty verdict.
In contrast, Dimitri faces an uphill battle. Representing himself, he struggles to navigate
complex legal procedures, interpret the law, and understand the rules of evidence and
procedure. Dimitri’s lack of legal knowledge and experience puts him at a disadvantage,
and he struggles to counter the prosecution’s arguments.
This highlights the vital role of legal practitioners for an accused person. A defence team’s
Figure 3 The disadvantages of
expertise, knowledge of the law, and courtroom experience can provide invaluable benefits self-representing in court highlights
and an easier path to justice. the need for legal practitioners
USEFUL TIP LEGAL VOCABULARY

An important key skill in Area of Study 1 of Unit 3 VCE Legal Studies is to ‘evaluate Remand the legal status of an
the ability of the criminal justice system to achieve the principles of justice during accused when they are held in custody
a criminal case’. The tables showing strengths and limitations in relation to each awaiting trial.
principle can help you develop this skill in evaluating legal practitioners’ ability Bail the process whereby a person
to achieve the principles of justice. who has been arrested and charged
with a crime is released from police
custody and allowed in the community
whilst awaiting trial.

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Evaluating legal practitioners’ ability to achieve the principles of justice during a criminal case
2G THEORY
S
ES
• Legal practitioners can provide advice to their • Legal practitioners for the accused are expensive,
FAIRN
clients that allows them to participate in criminal meaning they may only be able to afford either
proceedings on an informed basis where they a barrister or a solicitor. Consequently an unfair
better understand the pre-trial and court processes. outcome may occur where the Office of Public
This may lead to fairer outcomes as an accused Prosecution has a whole team of expert solicitors
can participate in certain aspects of the criminal and barristers, whilst the accused only has one.
justice process on a more informed basis, such as • An accused may struggle to participate in criminal
choosing to partake in plea negotiations. proceedings without receiving legal advice. For
• The use of legal practitioners can increase an example, they may not understand how to appeal
accused person’s chance of securing a not guilty their conviction or sentence after a guilty verdict
verdict, as their case is presented in the best has been decided, limiting fairness.
possible light by an expert. • Where an accused is responsible for presenting
• The duty of the prosecution to present all relevant their own evidence and questioning their own
evidence and legal principles to the court helps witnesses, the judge and jury may view this
ensure the whole truth emerges. Therefore, judges evidence as less reliable as it was presented by the
and jurors can base their verdict on all of the facts, accused as opposed to an impartial third party.
leading to more impartial outcomes. Therefore, judges and jurors may disregard the
• Legal practitioners are able to remain objective when accused’s evidence, leading to an unfair outcome.
examining the facts of an accused’s case. Therefore,
they can make impartial decisions on behalf of the
accused, such as rejecting unjust plea negotiations
or raising certain defences that they believe will be
successful, to ensure a fair outcome is reached.
EQU
• When an accused has legal representation, equality • Legal practitioners for the accused are expensive
ALI
can be achieved as disadvantages associated with and they may only be able to hire either a
TY
only the prosecution having legal representation barrister or solicitor. This may lead to unequal
are avoided. legal representation where the Office of Public
• VLA’s strict eligibility requirements ensure those Prosecution has a team of expert legal practitioners.
who are disadvantaged are prioritised to receive • VLA’s strict eligibility requirements mean that
legal representation. This upholds equality as VLA not all accused persons can receive free legal
takes significant action to minimise disadvantage representation even if they cannot afford to pay the
and ensure individuals, regardless of characteristics high cost of legal representation themselves.
such as their income or race, can receive legal • Legal practitioners in Australia typically speak
representation in court. English. Therefore, non-English speaking accused
persons may still struggle to understand the law
and legal proceedings, even after seeking legal
advice, if they are not able to hire a solicitor or
barrister who speaks their first language.
• Legal practitioners help parties prepare and • The costs of legal practitioners for an accused
present their case, increasing access to justice are high, meaning access to legal representation
AC as accused persons can develop a greater is less available.
CESS
understanding of their legal rights and the criminal • Where an accused does not engage legal
proceedings they will participate in. representation they may struggle to understand
• VLA provides access to legal representation legal processes. The legislation that sets out how
for some accused persons. criminal proceedings occur can be complex for
• By engaging a legal practitioner, an accused may individuals with no legal background.
be assisted in accessing methods of reducing their • VLA’s strict eligibility requirements mean that not
sentence, such as plea negotiations or appealing all people can receive free legal representation,
their current sanction. limiting access to legal practitioners.

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Lesson summary
• Legal practitioners are often needed for a criminal trial as lawyers represent
2G QUESTIONS
the prosecution and the accused amidst the intricacies of the criminal
justice system.
• The presence of legal practitioners facilitates the presentation of evidence,
upholds the principles of justice in the courtroom, and ensures an accused
individual receives proper representation.
• Legal practitioners are necessary for an accused to engage in a criminal case

as they can:
– uphold the rule of law
– ensure an accused understands legal proceedings
– prevent an accused from having to personally question witnesses
– provide support
– provide objectivity
– help an accused receive a fairer outcome.
2G Questions
Question 1
Which of the following is incorrect regarding the need for legal practitioners in a criminal case?
A. Legal practitioners question witnesses on behalf of an accused, ensuring an accused does not need to
personally confront and question their victim in court, which can be traumatic for the victim and difficult
for the accused.
B. Prosecution and defence barristers may be unaware of the defences they can raise, therefore an accused
is often better off presenting their own case as they have more time to research their own defences when
waiting for trial.
C. Legal practitioners are necessary to determine the guilt of an accused and to decide whether a criminal
matter should proceed straight to sentencing as the accused is always guilty.
D. Legal practitioners help uphold the rule of law by ensuring an accused person has a greater understanding
of legal principles and criminal proceedings.
Question 2
The rule of law can be upheld by an accused accessing legal representation as:
A. legal practitioners can allow an accused client to clearly understand the law by providing advice about the
laws they breached and the defences they can raise.
B. legal practitioners often have personal connections to judges meaning a judge will favour them and want
their case to succeed more than the average person, allowing accused persons who have a lawyer to often
be found not guilty.
Question 3
If an accused chooses not to hire legal representation because they are confident in their own ability
to present their defence, even though they have enough money to hire a legal practitioner, the accused’s
trial may be adjourned indefinitely so Victoria Legal Aid (VLA) can provide them with a lawyer.
A. True
B. False

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Question 4
2G QUESTIONS
support objectivity
A legal practitioner may help an accused by providing , as they have a greater ability to look
at the facts of the case from an impartial point of view, allowing them to identify weaker or stronger points in the
prosecution’s evidence. This can enable a stronger defence case to be built.
Question 5
Tick the box to indicate whether the following statements are strengths or limitations of legal practitioners
in upholding the principle of access.

I. Legal practitioners help parties prepare and present their case, increasing access to justice
as accused persons can develop a greater understanding of their legal rights and the criminal
proceedings they will participate in.
II. VLA’s strict eligibility requirements mean that not all people can receive free legal representation,
limiting access to legal practitioners.
III. By engaging a legal practitioner, an accused may be assisted in accessing methods of reducing
their sentence, such as plea negotiations or appealing their current sanction.
IV. The costs of legal practitioners are high, meaning access to legal representation is reduced for
many accused parties.
Question 6
fair equal
If an accused engages legal practitioners, this ensures legal representation for both the prosecution,
which will likely have a team of expert legal practitioners, and the accused.
Question 7
Parties are able to successfully represent themselves in most cases, and legal practitioners are only necessary
in particularly serious or complex cases.
A. True
B. False
Preparing for exams

Standard exam-style
Outline the need for legal practitioners in a criminal case.
Describe one reason why an accused individual may seek legal representation.

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Cindy has been charged with arson after accidentally starting a fire in her friend’s house. She needs to defend
2G QUESTIONS
her innocence in court and is considering whether or not to seek assistance from a legal practitioner.
Describe one reason why Cindy may need a legal practitioner if her case goes to trial.
Extended response
Question 11
Tick the box to indicate whether each of the following statements are ways in which the principle of fairness
is upheld or limited in relation to legal practitioners in a criminal case.
Statement Upheld Limited

I. Legal practitioners can give advice to their clients that allows them to participate in criminal
proceedings on an informed basis where they better understand the pre-trial and court
processes. This can lead to fairer outcomes as an accused can participate in certain aspects of
the criminal justice process on a more informed basis.
II. An accused may struggle to participate in criminal proceedings without receiving legal advice.
For example, they may not understand how to appeal their conviction or sentence after a guilty
verdict has been decided, limiting fairness.
III. Legal practitioners are able to remain objective when looking at the facts of an accused’s case.
Therefore, they can make impartial decisions on behalf of the accused, such as rejecting unjust
plea negotiations or raising certain defences they believe will be successful, to ensure a fair
outcome is reached.
IV. Even if both an accused and the prosecution have legal representation, the quality of the legal
representation hired by the accused may be less than that of the prosecution, considering the
accused likely has fewer financial resources to hire skilled solicitors and barristers.
Discuss the extent to which fairness can be achieved if an accused does not have legal representation.

Describe how legal practitioners uphold the rights of an accused.

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2H The impact of costs

and time – criminal cases
• the impact of costs, time and cultural differences on the achievement of the
principles of justice
2A 2B 2C 2D 2E 2F 2G 2H 2I
Image: Wasan Tita/Shutterstock.com
‘What is justice? For different people at 3.1.11.1 3.1.11.2

different times it means different things. The impact of costs The impact of time
However, for the most part in criminal law, in a criminal case in a criminal case
accessing justice usually means money.’
—The Honourable Marilyn Warren AC,
Former Chief Justice of the Supreme Court
of Victoria (2014)
For many people, accessing justice
in the criminal justice system requires
money in order to afford the various
expenses associated with defending
a criminal accusation.
Lesson introduction
In the criminal justice system, high costs and lengthy delays are common. The court
system often does not account for those of lower socioeconomic status, as there are a
number of different expenses involved for an accused when defending their innocence.
Individuals lacking the financial means to afford strong legal representation and other
expenses are therefore often disadvantaged before the law. The frequent delays in the
criminal justice system further disadvantage parties in a criminal trial, impeding the
achievement of the principles of justice.
The impact of costs in a criminal case 3.1.11.1

When facing a criminal charge, an accused person will often face high costs
LEGAL VOCABULARY
to defend their innocence. As the Office of Public Prosecution (OPP) is the
Office of Public Prosecution (OPP) prosecutor for indictable offences, and Victoria Police is the prosecutor for
the public body responsible for
summary offences, victims of crime usually do not incur significant costs from
legal proceedings for serious criminal a criminal trial. However, victims may incur costs if they initially seek legal advice
matters in Victoria, on behalf of the or have to take time off work to participate in the trial or recover from the crime.
Victorian community.
LESSON LINKS
You learnt about solicitors and
barristers in 2G Legal practitioners
in a criminal case.
You learnt about plea negotiations
in 2C Plea negotiations.

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Table 1 Types of legal costs for an accused during a criminal case
Type of legal cost Explanation WANT TO KNOW MORE?
2H THEORY
Solicitors’ fees A solicitor is often required for the preparation of the Do you know that a partner at a law
accused person’s defence. During this preparation firm may charge $800 per hour for their
phase, a solicitor will: work? You can find out more about
• review the prosecution’s evidence. the hourly rate charged by different
solicitors and barristers by searching
• plan which witnesses will be called if the matter
‘Solicitor and barrister prices’ and
goes to trial.
clicking the ‘Lawyers and Legal Services
• meet with witnesses before a trial. Australia’ (2016) webpage.
Barristers’ fees Many criminal charges are resolved prior to a trial
being conducted, for example, when an accused enters
a guilty plea. However, when an accused pleads not
guilty to the charges against them, the case must go
to trial. Therefore, an accused will often require a
barrister to present legal arguments and examine
witnesses. Hiring a barrister is expensive.
Witness fees If expert witnesses are required to give evidence,

they often charge fees to do so. For example, if the
prosecution uses a forensic scientist to explain forensic
evidence, the accused may require an expert witness to
challenge this presented evidence.
Appealing to a higher An offender seeking to appeal against a verdict,

court sentence, or sanction will need to pay:
• the filing fee in the relevant appeal court, which
is the cost paid by the party initiating court
proceedings.
• a solicitor to prepare written documentation for
the appeal.
• a barrister to present legal arguments to the judges
in the appeal court.
Orders to pay a sum of When an offender is sentenced, the court may make
money to the victim an order requiring the offender to pay a sum of money
to the victim, as compensation for the injury caused
and/or the property stolen, damaged, or lost.
Either the prosecution or the victims can apply for
these orders.
An accused can recover costs in certain circumstances including when they:

• are acquitted of a crime.
LESSON LINK
• successfully appeal against a conviction.
You learnt about VLA in 2B Victoria
If an accused is acquitted of a crime, they may ask the court to award costs in their Legal Aid and community legal centres.
favour if they are found ‘not guilty’. The court may order the prosecution to meet
the acquitted person’s costs. If such an award is made, it may only cover some of
the individual’s legal costs. If Victoria Legal Aid (VLA) has represented the accused LEGAL VOCABULARY
person, the funds will flow back to VLA to be reused on another client. Appeal Costs Board the public body
If the accused successfully appeals against their sentence, they can often apply that may partially compensate the
accused if they suffer loss from legal
to the Appeal Costs Board for an ‘appeals costs certificate’ to recover some of the
costs associated with judicial error or
costs associated with the appeal process back from the state. If VLA represents
circumstances that the accused was
an offender in such an appeal, the money recovered flows back to VLA, not to the not responsible for.
person they represented.

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REAL WORLD EXAMPLE

2H THEORY
relating to violence and death.

The cost of a failed criminal trial
In 2013, a woman was seen by neighbours running from her home covered in flames. The
woman passed away just a day later due to significant burns. In 2015, the Sydney coroner
recommended that her husband be prosecuted for her murder. The accused was in their
home with the victim at the time of the fatal event, and was therefore accused of pouring
petrol on her and setting her alight. After two trials, in 2021, the jury found the husband
to be not guilty.
Image: Gorodenkoff/Shutterstock.com
The Supreme Court justice found there was ‘physical evidence [that] overwhelmingly
Figure 1 The NSW Government may face pointed to the victim being the one who poured the [petrol] on herself and ignited it’.
up to $1 million in legal expenses to cover
the costs incurred by an accused after
As a result, the justice suggested it was unreasonable for the prosecution to commence
he was found not guilty of murder proceedings against the accused for the alleged murder.
An estimated $1 million may have to be paid by the state to cover the legal fees the accused
amassed over the course of the two murder trials he faced in both 2019 and 2021. These fees
included solicitor and barrister fees. The million-dollar cost of this murder trial demonstrates
the large expense incurred by accused persons during criminal cases.
Adapted from ‘NSW government ordered to pay legal fees for man accused of setting wife on fire’ (Harris, 2023)
A victim typically incurs no costs during a criminal case as the victim’s costs are
LESSON LINKS usually covered by the OPP. There are systems in place to ensure a victim does not
You learnt about the jury in a criminal have to pay for advice before a trial. The Victims Assistance Program, for example,
trial in 2E Judges, magistrates, and provides support workers or advice for victims to help them:
juries in a criminal case.
• understand the court process
You learnt about a victim impact
statement in 1C Rights of victims. • prepare to go to court
• write a victim impact statement.
However, a victim may incur costs when attempting to gain compensation from the
USEFUL TIP offender as they may need to hire their own lawyers to seek such compensation. This
The study design dot point for this is because the OPP works on behalf of the state, not the victim, to ensure offenders
lesson reads: ‘the impacts of costs, are found guilty, and does not function as a lawyer to achieve financial compensation
time and cultural differences on the
for victims. Hiring their own lawyer can be a significant cost for victims. However,
achievement of the principles of justice’
institutions such as the Victims of Crime Assistance Tribunal (VOCAT) can provide
which is similar to another study design
dot point that you will learn about in financial assistance to eligible victims, easing this burden for some victims.
Chapter 5. Lesson 5K is based on the
study design dot point: ‘the impact of
DEEP DIVE
costs and time on the ability of the civil
justice system to achieve the principles VLA: Cost ceilings
of justice during a civil dispute’.
Although VLA provides resources to accused people of lower socioeconomic status
The questions asked on the VCAA with the aim of making legal representation more accessible, the money they can spend
end-of-year exam about these topics on an accused is limited.
might be similar, so you need to look
If a person receives a grant of legal assistance from VLA, this person may still need to pay
out for key terms, such as ‘criminal’
a portion of their legal costs based on their accessible income. For example, if a trial for
and ‘civil’, or key aspects of a scenario,
an accused costs VLA more than $6,559 due to legal representation and court expenses,
to ascertain whether to answer the
a person who has $500 of accessible income per week may be required to also pay as
question referring to the impacts
much as $10,900 in legal expenses. Therefore, for accused people involved in expensive
discussed in this lesson, or the impacts
cases, as many criminal cases for serious, indictable offences are, the financial assistance
discussed in lesson 5K. Limit your
an accused can gain is limited to some degree.
discussions to the area of law, either
criminal or civil, that the question Adapted from ‘Contributions Policy’ (Victoria Legal Aid, 2022)
is specifically asking you about as
you will not receive full marks if you
talk about aspects of the civil justice
system in a question about criminal
law, for example.

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USEFUL TIP
2H THEORY
the ability of the criminal justice system to achieve the principles of justice during
a criminal case’. These tables showing strengths and limitations in relation to each
principle can help you evaluate the ability of the criminal justice system to achieve
the principles of justice in relation to costs.
Evaluating the ability of the criminal justice system to achieve the principles of justice in relation to costs
S
ES
• Independent judges ensure the rules of evidence • If an accused person cannot afford legal
FAIRN
and procedure are followed, promoting fairness, representation, they may have to represent
as even if an accused was unable to afford themselves. This may jeopardise fairness if the
representation, the rules of evidence in a criminal accused cannot present their case in the best
case would still be followed. light possible.
• Juries are used as independent decision-makers • Unbalanced legal representation may lead to an
in serious cases. For Commonwealth indictable unfair outcome, as the accused may be unable
offences, it is a right for an accused to receive a trial to prepare and present a case that is equally
by jury, therefore the Commonwealth bears the convincing as that of the prosecution.
expense of the jury, ensuring impartial processes. • The quality of the presentation of the case, usually
• Though VLA’s resources are limited, it does correlated with the price of representation, may
provide legal representation to accused persons, influence the outcome, not solely the facts and the
charged with serious offences, who have a law. This is unfair to the unrepresented or poorly
very low socioeconomic status. Therefore, this represented party.
promotes fairness by ensuring disadvantaged • Many individuals lose their employment and
individuals have representation and can participate income if imprisoned and therefore, cannot pay
in the justice system. compensation or restitution orders to victims,
which may be seen as unfair to victims.
• An accused person may plead guilty to a criminal
offence, even though they know they are not, just
because they are unable to afford the expense
associated with defending a criminal case in the
courts. This demonstrates the criminal justice
system and its processes are not always open
and fair for all accused persons.
EQU
• Judges in the County Court and the Supreme Court • If aggrieved parties cannot initiate an appeal due
ALI
have the power to order VLA to provide a lawyer to the associated costs, equality before the law is
TY
to those who cannot afford legal representation, not achieved as all people cannot engage with the
to ensure they receive some representation. This justice system equally.
promotes equality by providing additional resources • When a party cannot afford legal representation
to those who need it to allow them to engage in the or does not qualify for grants to representation
justice system without disparity or disadvantage. offered by VLA, they are at risk of not being
• Victims are represented by the OPP, which is free treated equally before the law.
of charge, and ensures all victims receive equal • If an accused is self-represented, they may be
representation, regardless of their individual on unequal footing in court with the skilled
characteristics, for the purpose of protecting prosecution and may not possess the same ability
the community at large. to present their case. This may lead to unequal and
unjust outcomes.
Continues →

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• VLA may provide duty lawyers or grants to assist • The high costs associated with an appeal, due to
2H THEORY
disadvantaged accused persons facing criminal the filing fees and legal representation expenses,
AC charges, better enabling them to engage with the can discourage individuals from appealing a
CESS
justice system. verdict, meaning such a review is inaccessible.
• If interpreters are needed in the courts, the • Those who cannot afford legal representation
prosecution organises and pays for this. Therefore, may have difficulty understanding criminal
costs are avoided by the accused person and proceedings in court and their legal rights during a
they are able to understand the trial process trial, undermining access to justice as they cannot
to the same degree as the prosecution. This properly engage with the criminal justice system
promotes access as non-English speakers can still on an informed basis.
understand the court proceedings at no expense. • The funding that VLA provides to accused persons
is limited, therefore some individuals may be
outside the low-income requirement to receive
grants but may still be unable to afford legal
representation themselves, preventing them from
accessing legal representation.
The impact of time in a criminal case 3.1.11.2

The criminal justice system in Australia often encounters significant delays. The
lengthy delays of certain criminal cases can have an impact on a victim, a victim’s
family, and the accused. Sources of delays in the criminal justice system include:
• court backlogs, as the caseload of the Victorian courts continuously grows.
• the time taken for appeal judgments and sentences to be delivered, creating
a delay in the final resolution of a case.
• trial procedures, as legal practitioners’ oral arguments and the question-answer
process for evidence take significant time to be presented.
• the collection of evidence to put together a convincing case.
LEGISLATION • judges giving directions to juries, ordered under the Jury Directions Act 2015
(Vic) at the start and end of a trial for an indictable offence.
Jury Directions Act 2015 (Vic)
• a hung jury, in which no verdict is delivered.
• mistrials as they result in retrials being conducted, adding to delay in the
resolution of criminal matters.
LESSON LINK
• jury empanelment.
You learnt about jury empanelment
in 2E Judges, magistrates, and juries There are many negative implications that delays in a criminal trial can have
in a criminal case. on those in the criminal justice system.

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Table 2 The impacts of delays on members of a criminal trial
Victim Witness Accused Community
2H THEORY
The longer the case is delayed, Giving evidence in a criminal Awaiting a trial with an The community remains at
the longer the suffering of the trial can be extremely outcome unresolved is risk if those charged with
victim and their family. In this stressful for witnesses and, as stressful for an accused person violent offences remain in the
period of limbo, there is no such, delays when awaiting and their family. community prior to a trial, in
closure and no certainty that this process can add to a the instance where an accused
Criminal trials often rely on
justice will be served. witness’ stress. is not placed on remand.
oral evidence, however, the
Criminal trials often rely on memories of witnesses may
oral evidence, however, the fade over time, limiting the
memories of witnesses may accuracy and reliability of
fade over time. This limits their statements. Therefore,
the accuracy and reliability an accused may be wrongly
of witness statements, so found guilty on the basis of
an accused may be wrongly false evidence.
declared innocent or found
guilty based on false evidence.
DEEP DIVE LEGAL VOCABULARY

Remand the legal status of an
Courts drowning in cases
accused when they are held in custody
In the 2021–2022 financial year, 83,000 criminal cases were waiting to be heard by awaiting trial.
Magistrates across Victoria (Productivity Commission, 2023). As a result, the Victorian
Government added one additional magistrate to the Victorian Magistrates’ Court in
the 2022–2023 budget. The Victorian premier at the time also announced in 2022 that
$300 million had been allocated to improving the court systems in the 2022–2023 LESSON LINK
Victorian Budget. Of this, $41 million was allocated to helping ‘clear case backlogs’ You learnt about the Victorian court
(Andrews, 2022). Recent statistics demonstrate many criminal cases have taken more hierarchy in 2D The Victorian court
than 12 months to be heard, a backlog which was primarily created by the pandemic hierarchy and criminal cases.
as during Victoria’s lockdown, jury trials were suspended for months.
Adapted from ‘Victorian courts plagued by delays as tens of thousands of criminal cases wait to be heard’
(Rollason, 2023) and ‘Report on Government Services 2023’ (Productivity Commission, 2023)
Evaluating the ability of the criminal justice system to achieve the principles of justice, in relation to time
S
ES
• The Victorian court hierarchy is structured in a • Delays compound the suffering of victims
FAIRN
way where lower courts, like the Magistrates’ and accused persons as they have to wait to
Court, are designed to hear high quantities of gain closure and justice, often increasing stress
less serious matters that take less time to be and anxiety. Delays are usually due to factors
decided. Contrastingly, more superior courts, such beyond the control of the victim, which is unfair
as the Supreme Court of Victoria, focus on more for such parties.
serious cases and therefore, hear fewer. This can • If delays cause evidence to be lost or made
increase fairness, as victims can achieve justice in a unreliable due to the passage of time and
reasonable time, considering delays can be partially memories fading, this may lead to incorrect
counteracted by this set-up of the court system. and unjust outcomes, which is unfair.
• Plea negotiations encourage an early resolution of
many criminal matters, as a verdict is determined
without a trial, promoting fairness, as delays
are avoided. Thus, justice can be attained
in a reasonable amount of time.

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EQU
• Plea negotiations may be used to ensure a resolution • Delays can be particularly distressing for victims
2H THEORY
ALI
is reached in a timely manner, as a successful plea and accused individuals with mental health issues
TY negotiation can allow court proceedings to be or disabilities, limiting equality.
avoided. Most accused persons have the ability • Delays in a case could mean that elderly victims
to enter into plea negotiations, promoting equality, never achieve justice, limiting the achievement
as the opportunity to negotiate a plea deal of equality as these individuals are disadvantaged
is available to accused persons regardless due to their age.
of their personal characteristics.
• Relatively few matters are resolved by jury trial, • Knowing about the delays in the justice system
so the delays associated with juries are limited may prevent victims from initially making
AC to a small number of criminal cases. This increases complaints to the police, preventing these people
CESS
access as non-jury trials are often quicker, freeing from engaging in the justice system and limiting
up the legal system and allowing other victims access to justice.
to access justice. • The longer a criminal trial goes for, the greater the
• Each court in the hierarchy specialises in certain costs in terms of paying for legal representation,
cases and matters, therefore delays can be therefore, delays drive up costs for accused
reduced. This increases access as judges in each persons, making access to justice less affordable.
of the courts are experienced in certain matters • The increase in delays in the justice system,
and can thus resolve cases efficiently. This allows as a result of the pandemic, increased the difficulty
cases to be processed faster so more cases can of accessing a trial, with many criminal cases put
be resolved each year. on hold for up to 12 months. This limits access
to justice in a timely manner.
Lesson summary
Costs may impact the achievement of the principles of justice in a criminal case as:
• accused persons usually have to pay significant amounts to defend their
innocence in a criminal case, due to legal representation and court fees.
• victims may want to seek legal advice before launching a criminal charge against
an offender, which may cost money.
• Victoria Legal Aid (VLA) can only assist accused persons and victims in specific
situations where a person is of very low socioeconomic status.
Delays may impact the achievement of the principles of justice in a criminal case as:
• the stress of victims, accused persons, and witnesses may increase when awaiting
the verdict of a criminal case.
• witnesses may forget details of the criminal offence, due to periods of delays,
resulting in their evidence being unreliable, therefore negatively affecting either
party, and ultimately leading to a miscarriage of justice.
• the community’s safety may be jeopardised during the period of delay if the
accused is not on remand.

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2H Questions
2H QUESTIONS
Question 1
Criminal cases are not burdened by costs or delays.
A. True
B. False
Question 2
Which of the following is not a cost that may be incurred by an accused in a criminal case?
A. Barrister fees
B. Court filing fees
C. Arrest warrant fees
D. Solicitor fees
Question 3
witness victim
An offender may incur costs when ordered to pay the a sum of money due to the injury caused or the
loss they incurred from the property being damaged, stolen, or lost.
Question 4
The high costs associated with lodging an appeal, due to filing fees and legal representation, may discourage
individuals from appealing a criminal conviction. This limits the principle of:
A. access.
B. fairness.
C. equality.
Question 5
access fairness
Knowing about delays in the justice system may prevent victims from reporting a suspected crime to police as they
may feel it’s pointless to do so, limiting . Delays may also cause some witnesses to produce
unreliable or false evidence as their memory fades over time and they can no longer recall the exact events.
This limits as witnesses may be unable to provide impartial and truthful information.

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Question 6
A victim may be negatively affected by delays in a criminal case because:
2H QUESTIONS

A. the longer the case is delayed, the longer the victim is in a period of limbo where justice is uncertain,
which can be stressful.
B. if the accused is not on remand, they may still be present in the community, potentially inducing fear
in victims if the accused committed a violent offence.
C. awaiting trial can be stressful for a victim, as the prospect of them being imprisoned lingers until the
trial occurs.
D. delays may cause witnesses to forget key information or for their memory to distort the reality of the
facts, and therefore an accused may be found ‘not guilty’ on the basis of incorrect information.
Question 7
Which of the following statements are sources of delays in the criminal justice system?
A. Court backlogs.
B. Waiting to try alternative methods of dispute resolution, such as mediation, to see if this can resolve the
case before it enters the courts.
C. Collecting evidence to put together a convincing case.
D. Judges giving directions.
Question 8
Due to the costs of engaging in a criminal case, and the delays that the Victorian court system is currently
facing, the principles of justice cannot be achieved to any degree.
A. True
B. False
Preparing for exams

Standard exam-style
Outline one impact of costs during a criminal trial.
Describe one impact of time during a criminal trial limiting the achievement of the principle of access.
Previn, after much deliberation, chooses to report the aggravated assault and robbery he endured at the hands
of a known community member on Main Street. However, he is informed that his attacker’s trial date will
not be for another 18 months. He feels anxious about shopping in his own community until some course of
action is taken, for fear of a second incident. The key eyewitnesses of the crime are two elderly people who are
concerned about appearing in court and whose memories of the event are deteriorating.
Explain the impact of time on the principle of fairness in Previn’s case.

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Extended response
2H QUESTIONS
Assume in 2045, the most common type of crime in Australia is cybercrime, a summary offence that
involves a person hacking, spamming, or stealing online data from a victim. In Victoria, 70% of the
criminal cases heard by the Magistrates’ Court are cybercrime cases. All these cases typically require
witnesses to provide oral evidence about the cybercrimes. Therefore, the Magistrates’ Court has an
extreme backlog of cybercrime cases, with many taking more than 12 months to be processed. Currently,
the Victorian Magistrates’ Court hears all cybercrime cases. However, the Victorian Parliament has
proposed creating an additional court that would have jurisdiction to make decisions solely on cybercrime
cases, called the Cyber Court.
Question 12
Which of the following statements are correct about the impact of cybercrimes on achieving the principle
of access in relation to time? (Select all that apply)
A. Access to justice is currently impeded by the 12 months of delays that exist due to cybercrimes because
accused persons require representation for longer periods of time, which is costly and may not be
accessible by accused persons of a lower socio-economic status.
B. Victims’ access to justice is limited by the current system as they may see lengthy delays regarding
cybercrime and decide against reporting cybercrimes, limiting their access to obtaining justice.
C. The development of the Cyber Court would allow all victims and accused people to access justice,
regardless of their financial means.
D. Cybercrime cases typically require oral evidence from witnesses, however, delays may cause witnesses’
evidence to weaken over time, limiting both the accused person and the victim’s access to a fair trial.
Analyse the impact of cybercrimes on the principle of access in relation to time. In your response, consider
how the Cyber Court could enhance the ability of the criminal justice system to achieve the principle of access.
Adapted from VCAA 2022 exam Section B Q2d
Question 14
Tick the box to indicate whether the following statements are strengths or limitations of the impact of costs
on the ability of the criminal justice system to achieve fairness.

I. VLA can provide duty lawyers or grants to accused persons with limited financial means,
promoting fairness by ensuring these individuals still have representation in a criminal case.
II. The costs of a criminal case may mean that if an accused person is of lower socioeconomic
status, they may not be able to afford representation, leading to an unfair trial.
III. Juries are independent decision-makers who may be used in serious criminal cases. The costs
of a jury are borne by the Commonwealth for Commonwealth indictable offences, promoting
a fair trial by jury for all persons accused of such offences.
IV. Due to the cost of a criminal case, an accused person may plead guilty to a criminal offence
just because they are unable to afford to pursue a criminal case in the courts.
V. If the accused can only afford a relatively cheap and inexperienced lawyer, the facts of the
case may not be presented in the best light for the accused, which is unfair to the poorly
represented party.

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Discuss one factor that could affect the ability of the criminal justice system to achieve fairness.
2H QUESTIONS
Adapted from VCAA 2021 exam Section A Q3c

Describe how plea negotiations can impact time during a criminal case.
Explain the role of Victoria Legal Aid (VLA) in relation to costs during a criminal case.

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2I The impact of cultural differences

– criminal cases
• the impact of costs, time and cultural differences on the achievement

of the principles of justice
2A 2B 2C 2D 2E 2F 2G 2H 2I
3.1.12.1
The impact of
cultural differences ‘It has been important to understand that
in criminal cases
there might be cultural reasons that things
can’t be discussed in court.’—Julie Wager,
Chief Judge of the Western Australian
District Court (Parke, 2022)
Individuals that come from different cultural
backgrounds in Australia may experience
language barriers, intergenerational trauma,
and difficulty in understanding the Australian
legal system. All of these factors can impact
the ability of the criminal justice system to
deliver justice to these individuals.
Lesson introduction CONTENT WARNING Aboriginal and Torres

Strait Islander readers should be aware that
All victims and accused are likely to be burdened by the costs and time associated with some material in this lesson may be culturally
criminal cases, as legal expenses and court delays affect most people in the criminal sensitive. Examples of this include references
justice system. However, depending on the cultural background of an individual, to people who have passed, inappropriate
whether that be Caucasian, Asian, non-English speaking, or Aboriginal and/or Torres language, or distressing events.
Strait Islander, access to or experiences in the criminal justice system may differ
significantly. Language barriers, cultural misunderstandings, and the construction
of the Victorian justice system, designed using Western practices and ideas, can
impede the achievement of justice for victims or accused persons of different cultural
backgrounds.
The impact of cultural differences Top 5 most common languages

other than English 2021
in criminal cases 3.1.12.1 Punjabi

A number of different groups within society may have difficulty engaging with 8.4% Mandarin
the criminal justice system due to their cultural background. Asylum seekers and 24.9%
Cantonese
refugees, migrants, and First Nations Australians are some key groups often impacted 22.7%
by cultural differences when involved in a criminal case, due to various factors.
WANT TO KNOW MORE?

According to the 2021 Census data, 5.8 million people reported using a language other
than English at home. The top 5 languages spoken other than English were Mandarin,
Arabic, Vietnamese, Cantonese, and Punjabi. You can find out more about the 2021 Census
Vietnamese Arabic
data relating to cultures, ethnicities, and language by searching ‘Cultural diversity in
29.3% 14.7%
Australia’ and clicking the ‘Australian Bureau of Statistics (ABS)’ (2022) webpage.
Figure 1 The five most common languages
spoken in Australian homes other than english
(ABS, 2022)

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Table 1 The impact of cultural differences in a criminal case on asylum seekers, refugees, or recent migrants
Cultural difference Impact of cultural difference in a criminal case

2I THEORY
Limited knowledge about Victoria’s • If a refugee or migrant is a victim of crime, they may be unaware of their rights as a victim
legal system in Australia due to unfamiliarity with the Australian legal system.
• As an accused, a person born outside of Australia may not know they are entitled to seek
legal representation when defending a charge in the courts, or may be unaware of how
to access legal information, advice, or representation through Victoria Legal Aid and/or
community legal centres.
• If self-representing, individuals may be unaware of their entitlement to present
evidence in their own defence, or may not know how to do so.
Limited English communication skills • If a victim or an accused speaks limited English, they may find it difficult to give
evidence at trial, especially if an accused is self-representing. This may result in the court
misunderstanding the circumstances relating to an offence, given the reliance on oral
evidence in Victorian courts, causing incorrect and potentially unfair case outcomes.
• If self-representing, the accused may have difficulty questioning evidence presented by
the prosecution’s witnesses or may experience difficulty when researching and preparing
lawful defences to a charge.
• Certain legal resources may not be properly translated, or translated at all, into the
language a non-English speaking person is most proficient in, therefore preventing them
from accessing certain resources.
Ingrained mistrust toward the police • Migrants, refugees, or asylum seekers may have an inherent mistrust towards authorities,
and courts due to past experiences whether that be due to past experiences with corrupt powers in their home country,
or due to experiences in detention since arriving in Australia. Consequently, these
individuals may be unwilling to report crimes to the police due to a lack of trust,
making them unable to seek justice for themselves.
• As a witness, victim, or accused, culturally diverse individuals may be unwilling to
speak truthfully to the police or the courts due to this inherent mistrust, instead giving
incomplete or inaccurate responses to questioning.
• This may also prevent a person accused of a crime from engaging with the prosecution
and negotiating a guilty plea via the process of plea negotiations, as they may fear the
authorities they would have to talk to during this process.
Fear of the cultural repercussions • A study found that one in three women from migrant backgrounds have experienced
associated with pursuing legal action domestic or family violence, but many do not pursue legal action to achieve justice
for themselves due to the cultural shame they would feel for dividing their family
(Monash University, 2021).
LEGAL CASE

relating to death and violence.
DPP v Natale (Ruling) [2018] VSC 339
Facts
The accused, an Italian migrant with a limited ability to speak English, was accused
of various offences including incitement to murder and threatening to kill after it was
alleged he offered $4,000 to a friend in return for killing a member of his wife’s family.
In a recorded police interview, the accused mainly used ‘yes’ and ‘no’ responses and
demonstrated a lack of understanding during questioning, indicated by his body language.
Legal issue
The accused’s defence argued the evidence collected during the interviews should not
LEGISLATION be considered admissible as the Evidence Act 2008 (Vic) outlines that evidence can
be inadmissible if, in the circumstances, it would be unfair to use. The judge had
Evidence Act 2008 (Vic) to determine whether this evidence would be submitted to the court.
Decision
Justice Bell determined that the accused had insufficient knowledge of English
LESSON LINK to be able to understand the questioning, communicate his answers, or understand
You learnt about Victoria Legal Aid and his rights in the Australian legal system, such as his right to remain silent. He, therefore,
community legal centres in 2B Victoria concluded it would be unfair to admit the evidence.
Legal Aid and community legal centres. Continues →
102 CHAPTER 2: The principles of justice during a criminal case

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LEGAL CASE
DPP v Natale (Ruling) [2018] VSC 339 – Continued
2I THEORY
Significance LEGAL VOCABULARY
This case demonstrates some of the protections that the criminal justice system Dispossession a situation in which
has established to ensure the provision of justice for non-English speakers is not a person is deprived of land, property
significantly impacted by language barriers. or other possessions.
Table 2 The impact of cultural differences in a criminal case on First Nations peoples

Over-representation in the criminal • Figures from 2020 indicate that the Aboriginal imprisonment rate in NSW is nearly
justice system and within prison 10 times the non-Aboriginal imprisonment rate (ABS, 2020).
systems around Australia • A report by the United Nations Association of Australia (Temple et al., 2021) found that
the rate at which First Nations peoples are incarcerated continues to increase each
year. In 2020, First Nations peoples made up just 3% of the Australian population yet
29% of the adult prison population.
• The Sentencing Advisory Council (2023) found that the Aboriginal and Torres Strait
Islander imprisonment rates almost doubled between 2011 and 2021 in Victoria.
• Due to the alarming rates of incarceration, this may cause First Nations individuals to
fear they are more likely to be convicted on the basis of their race, regardless of the actual
evidence against them.
Limited trust in the criminal justice • In 2020, a Gunditjmara, Dja Dja Wurrung, Wiradjuri, and Yorta Yorta woman passed
system due to a history of away in a Victorian, maximum-security prison after being arrested on suspicion of
dispossession and social exclusion shoplifting (Ore, 2023). Despite calling for help several times as she was experiencing
by governments significant vomiting and cramps, she received no help from prison staff, dying in custody.
• Cases like that outlined above may prevent Aboriginal or Torres Strait Islander victims
from seeking justice, fearing ingrained racial prejudices and systematic discrimination
will prevent them from attaining justice even if they pursue it. This is also greatly
influenced by the history of dispossession and social exclusion experienced by First
Nations communities across Australia.
Different body language practices, • Some First Nations Australians may avoid eye contact and remain silent more often than
compared to the dominating non-indigenous Australians as it can be considered respectful in some communities to do
Western cultural practices so. A lack of eye contact or silence can be misunderstood as dishonesty and evasiveness by
in Australian society those working within the justice system who do not understand this cultural practice.
Different cultural practices that • Within certain First Nations communities, it is considered disrespectful to talk about
make it inappropriate to discuss certain topics. For example, in certain communities, seeing images of, hearing about,
certain subject matter when giving and listening to the names of deceased persons can cause sadness, distress, and offence.
evidence or being questioned As a result, the accused or victim may find it uncomfortable or culturally-insensitive
to present evidence or witness the presentation of evidence in a courtroom.
• Furthermore, direct questioning is generally considered rude in some Aboriginal
cultures. Therefore, when being questioned by the police as an accused, or questioned
by lawyers as a witness, First Nations individuals may feel ‘shamed’. This means they feel
embarrassed, intimidated, or uncomfortable. Without knowing this, the police or a jury
may misinterpret what is happening as an indication of guilt or evasiveness on behalf
of the individual.
Intergenerational child removals, • First Nations women, in particular, may fear reporting violence as this could result
and present traumas act to prevent in the removal of their children by authorities.
the reporting of criminal acts,
particularly family violence Continues →

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Table 2 Continued

2I THEORY
Aboriginal identification • Aboriginality is not defined by skin colour. In fact, there is much diversity in relation
to the First Nations peoples of Australia. Racial prejudices against First Nations
peoples by the justice system exist regardless of the darkness of a person’s skin colour.
• Racial prejudices resulting in Australian police brutality are still prevalent in Australian
society.
• For example, in 2015, a 26-year-old Dunghutti man, David Dungay Jr, died in a Sydney
jail after being dragged by prison officers to a different cell (Davidson, 2020). Although
multiple factors compounded his death, the coroner found the conduct of authorities
was ‘limited by systemic inefficiencies’. He called out 12 times that he couldn’t breathe
before losing consciousness. The National Justice Project called for justice and
accountability for the ‘needless’ death.
Language barriers due to the • Among First Nations peoples, proficiency in speaking Standard English differs
difference between pronunciation significantly.
and grammar in Torres Strait Islander
• Certain English words may have different meanings, creating miscommunications and
languages or Australian Aboriginal
misinterpretations when First Nations individuals are being questioned or presenting
English (the name given to the
evidence as a victim or accused. For example:
complex English spoken by around
– ‘home’ could mean a person’s place of residence, their language group, or nation area.
80% of Aboriginal and Torres Strait
Islander peoples across Australia – ‘blood’ could mean bodily fluid or family, said in the context of ‘he is my blood’,
(Parlington & Galloway, 2007) for example.
• This can negatively impact the degree of understanding the jury or legal practitioners
have of the statements given by the accused.
Geographical barriers • Many Aboriginal and Torres Strait Islander people live in extremely remote areas,
therefore affecting their ability to access the courts and legal facilities. In rural areas,
there are typically low numbers of legal practitioners providing legal aid, for example,
therefore accessing justice can be limited due to these barriers.
DEEP DIVE
Aboriginal communication
According to the Chief Executive of the Kimberley Interpreting Service (KIS), a Western
Australian Aboriginal interpreting service, certain English words may be misinterpreted
by Aboriginal people.
The following are examples of Aboriginal communications that have altered meanings
to their English equivalents:
• ‘Deadly’ can mean that something is good or excellent, instead of meaning ‘going
to kill’ as it would in English.
• ‘Auntie’ or ‘Uncle’ is often used to address an older person, even when there
is no familial relation to the individual.
• ‘I’m gunna flog you if you don’t’ would typically be perceived as a threat in a plain
English context, however, this is an example of hyperbolic humour in Aboriginal
communication, used when trying to convince someone to do something.
Adapted from ‘Koorified Aboriginal Communication and Well-being’ (Adams, 2014) and ‘WA Chief Justice Wayne
Martin fears language barriers putting innocent people behind bars’ (Bembridge, 2015)
DEEP DIVE
Royal Commission delivers a damning report

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC), released in 1991,
reported on Aboriginal deaths in custody after investigating 99 deaths. The Commission
found that Aboriginal people were far more likely to be in prison than non-Aboriginal
people, however, the death rates between Indigenous and non-Indigenous prisoners did
not differ. The report also determined that the deaths were caused due to a number of
factors, including police and prisons failing to uphold their duty of care.
Continues →

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DEEP DIVE
Royal Commission delivers a damning report – Continued
2I THEORY
The final report delivered 339 recommendations regarding Aboriginal people in custody.
These included recommending that imprisonment should be a last resort for sentencing,
greater medical assistance should be provided if the condition of detainees deteriorates,
and greater collaboration with Indigenous communities should be prioritised. Underlying
issues propelling the high incarceration rates among First Nations peoples were all
considered, including social factors, such as housing, education, and alcoholism, as well
as cultural and legal factors.
A 2018 review by Deloitte found that, since the RCIADIC, 78% of the recommendations
made have been fully or mostly implemented, 16% have been partially implemented, and
6% were not implemented. The review also found that since the RCIADIC Final Report
was released, the Aboriginal and Torres Strait Islander incarceration rate doubled.
Therefore, although the RCIADIC was such a large-scale look into the impacts cultural
differences have on criminal justice, recommendations still have not been properly
implemented, and inequality remains significant in Australia’s criminal justice system.
Adapted from ‘The 25th Anniversary of the Royal Commission into Aboriginal Deaths in Custody’ (Haughton, 2016)
and ‘Indigenous deaths in custody: Key recommendations still not fully implemented’ (Allam & Wahlquist, 2018)
DEEP DIVE
The Koori Court in Victoria

In 2002, the Magistrates’ Court introduced a specialist division called the Koori Court.
This has since been expanded into the Children’s Court and County Court.
The Koori Court divisions of the Magistrates’ Court and the County Court provide a
culturally-relevant sentencing method for First Nations peoples accused of a crime under
Victorian legislation or common law who plead guilty to a criminal offence and consent
to the matter being referred to the Koori Court. Certain offences, such as sexual offences,
contraventions of family violence intervention orders, or violations of a personal safety
intervention order, for example, cannot be dealt with in the Koori Court.
The Koori Court has several features that can benefit First Nations peoples, including:
Image used with permission from YardFurniture.com.au
• only dealing with the sentencing of First Nations offenders, and not having any role
Figure 1 The Koori Court is a mechanism
in determining the verdict of the case. of the Victorian justice system that aims to
• using a less formal process, in which respected community leaders from the promote equality for First Nations peoples
Indigenous community are present.
• involving discussions between the offender and a Respected Elder about the impact
of their crime upon the victim and their family, the offender and their family, and the
broader Indigenous community they are part of.
Once discussions with First Nations Elders or Respected Persons have occurred, the
magistrate or judge imposes a sanction. These are no more or less severe than the
sanctions given using traditional sentencing methods. However, the process of discussing
the sentencing in these circumstances gives it more authenticity and meaning for the
accused person and for that reason has been found to reduce reoffending.
The reason for using the Koori Court is to provide culturally-relevant justice with a focus
on rehabilitation rather than punishment. The Koori Court process has been shown to
be effective at reducing reoffending. It is an example of the criminal justice system being
modified to reflect the differences between Indigenous and non-indigenous Australians.
Adapted from ‘Koori Court’ (Magistrates’ Court of Victoria, 2022)

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USEFUL TIP
2I THEORY
case’. These tables showing the strengths and limitations of the criminal justice system in
being able to uphold each principle can help you evaluate the ability of the criminal justice
system to achieve the principles of justice in relation to cultural differences.
Evaluating the ability of the criminal justice system to achieve the principles of justice in relation
to cultural differences
S
ES
• The prosecution must ensure all relevant facts • Witnesses, victims, and accused persons from
FAIRN
and legal principles are presented to the court. minority cultural backgrounds may face difficulties
This helps promote fairness since when there are when presenting evidence. This may result in the
open and impartial processes, the whole truth can court misinterpreting the facts in a criminal case,
emerge, thus overcoming some of the difficulties leading to incorrect or unjust verdicts.
that can be caused by cultural differences. • Those for whom English is not their first language,
• The presumption of innocence and the high standard such as refugees and recent migrants, may have
of proof required for a criminal conviction aims difficulty giving oral evidence due to language
to protect those who have difficulty presenting barriers, meaning courts may misunderstand
evidence or a defence, as they do not need the facts in particular cases, leading to unjust
to prove their innocence. or incorrect outcomes.
• The Evidence Act 2008 (Vic) establishes the
circumstances where evidence cannot be
admitted to the courts due to the accused
or victim’s accounts being unreliable
as a result of language barriers.
EQU
• Victoria Legal Aid provides legal representation • Due to cultural or language differences, some
ALI
to all accused persons, including Indigenous First Nations peoples or recent migrants from
TY
and migrant accused persons, as long as these non-English speaking backgrounds may be less
individuals meet specific criteria. capable of presenting evidence as victims or
• Interpreters are available for all accused persons, accused persons, undermining equality.
and the onus to pay for and arrange an interpreter • The high incarceration rates among First Nations
is on the courts, as opposed to the accused. This peoples point towards inherent prejudices within
allows all non-English speakers to understand the Australian criminal justice system. Therefore,
court proceedings without having to pay equality is limited as these biases among members
significant expenses. of the justice system may lead to Aboriginal and/
• The Koori Court is an option for First Nations or Torres Strait Islander peoples being prescribed
peoples if they plead guilty, as it can provide harsher penalties on the basis of their race.
culturally-relevant sentencing practices that are • Aboriginal and/or Torres Strait Islander peoples
used when determining the sentence of an offender. typically live in more rural areas of Australia and,
Therefore, this can increase equality as sentencing therefore, their access to legal representation is
processes are more tailored to Aboriginal and Torres more limited due to geographical barriers. Unless
Strait Islander practices. adequate measures are implemented to remove
this disparity, equality will not be achieved as
an accused person of Aboriginal or Torres Strait
Islander descent may have reduced access to legal
advice and resources.

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2I QUESTIONS
• Victorian Aboriginal Legal Service is a community • If refugees or other migrants do not trust the police,
legal centre that better enables First Nations people due to past, adverse experiences in their home
to engage with the justice system, by providing countries, they may be reluctant to report crimes, AC
CESS
advice and assistance tailored to the needs undermining access to justice for victims.
of Indigenous Victorians. Its legal services are • Migrants and refugees may be unfamiliar with the
available across rural regions in Victoria, allowing Victorian legal system and less aware of their legal
access to justice for Aboriginal peoples in remote rights as a victim or accused person, therefore
areas and metropolitan Melbourne. limiting access.
• The use of the Koori Court aims to provide • Cultural differences may result in some migrants
more First Nations offenders with access never accessing the justice system. For example,
to culturally-relevant sentencing that more in some cultures, female compliance is taught,
effectively acts to reduce reoffending. therefore, women may not ever report abuse as they
believe they should just accept it.
• Some migrants may be on a temporary Australian
visa, relying on marriage to attain permanent
citizenship. Therefore, these migrants may not
report offences, fearing their visa may be taken
away if they do.
Lesson summary
Asylum seekers, refugees, migrants, and First Nations Australians are some
of the key groups impacted by cultural differences when involved in a criminal
case due to various factors that can limit the principles of justice, including:
• language barriers
• racial prejudices of the police and other people with authority
• cultural misunderstandings or practices
• intergenerational trauma.
However, certain mechanisms, such as the Koori Courts and interpreters, exist
to ensure individuals with cultural differences from Caucasian, English-speaking
Australians can still access justice.
2I Questions
Question 1
The cultural background of an individual involved in a criminal case will have no impact on the achievement
of the principles of justice.
A. True
B. False
Question 2
Which of the following statements are correct about cultural differences in a criminal case?
A. Some Aboriginal people may have difficulty with the question-and-answer format of evidence
presentation in Victorian courts.
B. First Nations peoples have experienced a history of racial discrimination and social exclusion by governments,
leading many of them to now fear members of the criminal justice system, such as the police and judges.
C. Indigenous Australians are overrepresented in the criminal justice system.
D. The Koori Court sentencing method results in sanctions that are less severe than those imposed
in the mainstream sentencing process.

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Question 3
The principle of access may not be achieved for refugees and migrants due to:
2I QUESTIONS
A. the possibility of being unfamiliar with the Victorian legal system, thus making them less aware of their
legal rights as a victim or an accused.
B. Victoria Legal Aid providing legal representation for all accused people, including migrants, as long
as these individuals meet relevant criteria.
Question 4
Tick the box to indicate whether each of the following statements relate to how cultural differences may limit
the achievement of the principle of fairness or equality.
Statement Fairness Equality

I. Individuals from a non-English speaking background may be less able to present evidence,
therefore preventing them from being treated the same as English speakers.
II. The high incarceration rates of First Nations peoples point towards inherent prejudices existing
within the Australian criminal justice system. Biases among members of the justice system
may lead to Aboriginal and/or Torres Strait Islander peoples being prescribed harsher penalties
on the basis of their race.
III. For some Aboriginal and Torres Strait Islanders, cultural practices, such as avoiding eye
contact, may be misunderstood. As a result, authorities could view this as an indication
of guilt or evasiveness, leading to an accused unjustly being convicted.
IV. Language barriers may cause the courts to misunderstand or accept incorrect evidence,
leading to an unjust outcome.
Question 5
Which of the following statements are correct about processes in the Victorian criminal justice system that
aim to uphold the principles of justice despite cultural differences? (Select all that apply)
A. The presumption of innocence and high standard of proof protect accused persons, as they do not
need to present any evidence to prove their innocence. Thus, if an accused fears they will be unable
to convincingly present evidence, they are under no obligation to do so.
B. Victoria Legal Aid provides legal representation to all accused persons regardless of their cultural
backgrounds, as long as they meet the relevant requirements.
C. Interpreter services are available in all courtrooms, however, the accused must pay for such services.
D. The Koori Court allows offenders that identify as First Nations peoples to access culturally-relevant
sentencing that is more effective in reducing reoffending.
Question 6
The principle of access may be limited if refugee or asylum seeker victims of crime do not report crimes to the
police due to traumatic experiences with authorities. The principle of equality is limited as certain non-English
speakers, for example, may be unaware of available resources, like Victoria Legal Aid, and therefore do not
make use of these resources. Finally, fairness may be limited if false confessions are made due to language
misunderstandings.
A. True
B. False
Preparing for exams

Standard exam-style
Outline one way cultural differences limit the principle of equality from being achieved in a criminal case.

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Explain one way in which cultural differences impact the principle of access in a criminal case.
2I QUESTIONS
The Victorian courts, such as the Magistrates’ Court, pay for interpreter services when they are required
for an accused person charged with an offence. Ahmed, a migrant from Saudi Arabia, was recently accused
of theft after stealing from his local supermarket. He speaks Arabic but very little English.
How do the interpreter services of the Victorian courts enhance the ability of the criminal justice system
to achieve fairness for Ahmed and others like him? Justify your response.
Extended response
Question 10
justice system in achieving equality.

I. Individuals from migrant or refugee backgrounds may be unable to speak English proficiently,
therefore limiting their ability to present evidence as either an accused person or as a victim.
II. Interpreters are available to all accused persons in the courts, and the courts are required
to pay for such services instead of the accused.
III. Migrants and refugees may be unaware of the resources available to them, such as Victoria
Legal Aid (VLA).
IV. VLA provides legal representation to all accused persons, including Aboriginal and/or Torres
Strait Islanders and migrant accused persons, and provided resources online in multiple
languages.
Discuss one cultural factor that could affect the ability of the Victorian criminal justice system
to achieve equality.
In Victoria, the Koori Court is a division of the Magistrates’ Court and the County Court that provides
culturally-relevant sentencing methods to First Nations peoples who have committed a crime in Victoria,
plead guilty to certain criminal matters, and consent to the matter being sentenced in the Koori Court.
It does not provide less or more severe sentences than those applied for non-First Nations offenders and has
no role in determining the guilt of an offender. The process of receiving a sentence in the Koori Court involves
discussions with community Elders or Respected Persons to gauge what sentence would be appropriate for
the offender. It is proven to be effective in decreasing rates of recidivism. However, it has faced challenges as
a lack of community awareness of this court has acted as a barrier to the participation of Community Elders.

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Question 12
Tick the box to indicate whether the following are strengths or limitations of the Koori Court in relation
to access.
2I QUESTIONS

I. The Koori Court allows culturally-relevant sentencing practices to be used when determining
an appropriate sentence for an offender.
II. The Koori Court is proven to be an effective mechanism at reducing rates of recidivism.
Therefore, this could result in First Nations incarceration rates declining in the future.
III. The Koori Court involves community Elders and Respected Persons having open discussions
with offenders. Therefore, language barriers are reduced as these discussions can occur using
Aboriginal English.
IV. Community Elders and Respected Persons, who are required for the Court to function,
may be unaware of the Court and their ability to participate.
Analyse the impact of the Koori Court in relation to cultural differences. In your response, consider how the
Koori Court can enhance the ability of the Victorian criminal justice system to achieve the principle of equality.

Arjun has been accused of causing Freya serious injury intentionally after he allegedly shoved her
on the bus trying to to get a seat, causing her to trip and fall. Arjun migrated to Australia five years ago
and speaks minimal English. He has also been struggling financially after moving, as he sends the majority
of the money he earns in Australia back to his family in India. Arjun will need to defend himself in court
in a month’s time.
Describe the impact that costs and cultural differences may have on Arjun’s criminal case.

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3
CHAPTER 3
Sentencing
3A Purposes of sanctions Sentencing

• the purposes of sanctions: rehabilitation, punishment,
3B Types of sanctions deterrence (general and specific), denunciation
3C Factors considered in sentencing and protection
• fines, community correction orders and imprisonment,
and their specific purposes
Image: smspsy/Shutterstock.com
• factors considered in sentencing, including aggravating
factors, mitigating factors, guilty pleas and victim
impact statements.
111
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3A Purposes of sanctions
• the purposes of sanctions: rehabilitation, punishment, deterrence (general and

specific), denunciation and protection
Image: Fer Gregory/Shutterstock.com 3A 3B 3C

‘It’s funny. On the outside, I was an honest
man. Straight as an arrow. I had to come
to prison to be a crook.’—Andy Dufresne
(‘Shawshank Redemption’, 1994) 3.1.13.1 3.1.13.2 3.1.13.3 3.1.13.4 3.1.13.5
Why are sanctions, such as imprisonment, Rehabilitation Punishment Deterrence Denunciation Protection
imposed upon offenders? Is it to punish,
rehabilitate, or for another purpose?
Are all sanctions effective in achieving
these purposes?
Lesson introduction
When sentencing an offender, the court must consider what they are aiming to
accomplish by imposing a certain sanction on the offender. Whether it is to punish
or rehabilitate the offender, each criminal sanction has different purposes it aims
to achieve, and some sanctions may be better suited to particular offences. Five key
LEGISLATION purposes of sanctions are outlined in s 5 of the Sentencing Act 1991 (Vic).
Sentencing Act 1991 (Vic) 1 2 3 4 5
Rehabilitation Punishment Deterrence Denunciation Protection
KEY TERMS Figure 1 The five purposes of sanctions
Sanction a penalty imposed by a court,
Rehabilitation 3.1.13.1
or an authorised body, on an offender
when they plead guilty or are found
guilty of a crime.
Rehabilitation can be achieved by sanctions that seek to break the cycle of offending.
Rehabilitation the act of restoring an
When imposing a sanction, a court may consider which sanction is most appropriate
offender to normal life as a law-abiding
in addressing the underlying reasons for offending and how it can encourage the
member of the community after they
have engaged in criminal activity. rehabilitation of an offender. By rehabilitating an offender, the rate of recidivism
may be reduced and future offending may be prevented.
LEGAL VOCABULARY
Table 1 Examples of sanctions that prioritise rehabilitation
Rate of recidivism a measure of
the number of offenders who return Sanction How it prioritises rehabilitation
to prison or other corrective services
Community corrections CCOs are sanctions served in the community, whereby
after their initial release.
orders (CCOs) the offender must follow certain conditions. The courts
will usually impose a CCO rather than a term of
imprisonment when the rehabilitation of the offender
LESSON LINK is a high priority. A CCO may involve alcohol exclusion,
You will learn about criminal sanctions a curfew, treatment for drug addiction, or any other
in 3B Types of sanctions. condition that aims to address the underlying causes
of criminal behaviour.
Continues →
112 Chapter 3: Sentencing

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Table 1 Continued
Sanction How it prioritises rehabilitation
3A THEORY
Drug treatment DTOs are imposed by the Drug Court, a division
orders (DTOs) of the Magistrates’ Court of Victoria. DTOs involve
a sentence of imprisonment that is less than two years
in the Magistrates’ Court, or up to four years in the
County Court, that is deferred while the participant
receives supervised drug and/or alcohol treatment.
If the participant successfully completes this treatment,
they will not have to serve a term of imprisonment.
DTOs focus on the rehabilitation of the offender
by acknowledging the negative impact a prison
environment can have on the offender, allowing them
to undertake treatment in the community to keep them
out of the prison environment.
Court secure A court secure treatment order allows a person to be

treatment order detained and treated at a mental health institution
as opposed to a term of imprisonment. This type
of order can only be imposed where imprisonment
LESSON LINKS
would have occurred if the offender was not mentally
ill. A court may impose this sanction if the offender You learnt about the Magistrates’
requires rehabilitative treatment to prevent serious Court in 2D The Victorian court
hierarchy and criminal cases.
deterioration of their health, harm to themselves, or
another person. Therefore, these orders prioritise the You will learn about community
rehabilitation of an offender in a manner that may have corrections orders (CCOs) and
been unachieved if they were to be placed in prison. recidivism in 3B Types of sanctions.
REAL WORLD EXAMPLE
Breaking the cycle of offending

In August 2023, the Northern Territory (NT) was the first jurisdiction in Australia to pass
legislation raising the age of criminal responsibility from 10 to 12 years of age. Children
under the age of 12 years in the NT can no longer be deemed responsible for committing
a criminal offence. The aim of raising the age of criminal responsibility is to break the
cycle of youth offending by rehabilitating juveniles participating in criminal activity and
addressing the root causes of their offending through therapeutic programs.
Now, when a child under the age of 12 engages in offending behaviour, they will be
referred to the NT’s Department of Territory Families, Housing and Communities, which
will assess which intervention programs may be required for the child. This may include
family engagement and support services, health services for mental health or drug and Image: pjcross/Shutterstock.com
alcohol abuse, education, and youth engagement services. Figure 2 The Northern Territory plans
This legislative change comes after the ‘Royal Commission into the Protection and to raise the age of criminal responsibility
from 10 to 12
Detention of Children in the Northern Territory’ in 2016. There is increasing pressure
on other states to undertake the same steps.
Adapted from ABC News, ‘Northern Territory becomes the first Australian jurisdiction to raise the minimum age
of criminal responsibility from 10 to 12 years’ (Perera & Abram, 2022)
Punishment 3.1.13.2
Punishment is a purpose of sanctions that aims to hold offenders accountable for
KEY TERM
their crimes and ensure retribution is sought on behalf of the victim and society
as a whole. Punishment also seeks to discourage victims and/or their families from Punishment the infliction of pain or
enacting revenge themselves. A court aiming to punish an offender will impose loss to ensure an offender is adequately
a more severe sanction. For example, a larger fine or longer period of imprisonment penalised and held accountable for
their crimes and their impact on their
could be imposed.
victims and society as a whole.

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LEGAL VOCABULARY DEEP DIVE

Principle of totality the principle The principles of totality and proportionality
that a sentence should be just and
3A THEORY
appropriate to reflect the entire Sentencing considerations Principle Principle of

impact of an offender’s crimes where for punishment of totality proportionality
the offender has been convicted
Figure 3 The principles of totality and proportionality are sentencing considerations when
of multiple crimes. a court is aiming to punish an offender
Principle of proportionality
When considering the purpose of punishment, there are two fundamental principles
the principle that a sentence should
of sentencing that should be accounted for, the principle of totality and the principle
reflect the gravity of the offender’s
of proportionality.
criminal behaviour.
1. The totality principle states a sentence should be just and appropriate to reflect
the entire impact of an offender’s crimes where the offender has been convicted
of a number of crimes.
2. The proportionality principle states a sentence should reflect the gravity of the
offender’s criminal behaviour, that is, the degree to which the offender is punished
should equate to the overall impact of the offender’s crimes.
Bejewelled bandit
Betty was caught red-handed by police for stealing millions of dollars worth of precious
jewels from a mansion after her getaway car driver left her stranded at the last minute.
She was found guilty at trial. During her sentencing, the judge will need to consider
an appropriate sanction that reflects the severity of her crime and its impact, whilst also
adequately punishing her for the criminal activity.
Deterrence 3.1.13.3
Deterrence aims to discourage an offender, or the general public, from reoffending
KEY TERMS
or committing a crime through the imposition of a sanction. The effectiveness
Deterrence the act of discouraging of deterrence can also impact the rate of recidivism and the overall likelihood
an offender, or other individuals, from of reoffending.
reoffending or committing similar
crimes, through the imposition of a The two types of deterrence are:
criminal sanction. 1. specific deterrence, which occurs when the offender themselves is
Specific deterrence a type of discouraged from committing offences of the same or similar nature through
deterrence in which the offender the imposition of a sanction.
themselves is discouraged from 2. general deterrence, which occurs when individuals other than the
reoffending and committing offences offender, being the general public at large, are discouraged from committing
of a similar nature. offences of the same or similar nature to avoid receiving the same sanction
General deterrence a type of as convicted offenders.
deterrence in which individuals
other than the offender, such as the Specific deterrence can be achieved as the individual offender is responsive to, and
general public, are discouraged from aware of, the potential sanction they could receive if they reoffend and commit
committing offences because they similar crimes. However, the success of general deterrence is dependent on the
wish to avoid receiving the same public’s awareness of the potential sanctions they could receive for committing
sanction as offenders. certain offences. If wider society is unaware of the possible sanctions associated
with particular crimes, they may not be discouraged from partaking in such activity.
A court aiming to deter will impose a more severe sanction, such as imprisonment
rather than a community corrections order. This will usually be accompanied by
comments from the court stating the more severe sanction is designed to specifically
or generally discourage such offending.

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Fast and Furious fanatic faced with a fierce fine
3A THEORY
Alistair has been fined $786 and had his license suspended for six months after being
caught speeding 45 km/h over the speed limit whilst pretending to be a fast and furious
driver. This hefty fine and the inconvenience of losing his license are likely to deter Alistair
from committing a similar offence in the future. Given the general public is also aware
of the sanctions for speeding offences, people will generally be deterred from speeding
for the safety of all road users, to avoid receiving a fine, or having their license suspended. Figure 4 A driver is fined and has his license
Therefore, Alistair’s sentencing can achieve both specific and general deterrence. suspended after a high-speed adventure
Denunciation 3.1.13.4
Denunciation is a purpose of sanctions whereby the court seeks to criticise the
KEY TERM
offender’s criminal behaviour publicly. Essentially, the court denounces the offender’s
actions to highlight the extent to which the offender has violated the moral and Denunciation the act of publicly
ethical standards of society. Denunciation occurs in a judge’s statement at the end condemning an offender’s criminal
of the hearing or trial. Whilst the judge’s comments outline the court’s condemnation, behaviour.
denunciation does not necessarily provide a practical solution to addressing the
offender’s criminal behaviour, compared to the other purposes of sanctions.
LEGAL CASE
to violence and threats.
Latorre v R (2012) 226 A Crim R 319
Facts
In 2009, a man was sentenced to an 11-year prison term for a range of violent offences,
such as multiple threats to kill, assault, blackmail, and property damage against four
separate victims. His offending included burning the victims’ cars, public threats to
murder a victim while physically assaulting him, and demanding large sums of money
with the threat of violence if victims failed to pay. The man appealed against some
of the guilty verdicts and sentences imposed.
Legal issue
The court had to determine whether the man’s sentence should be reduced.
Decision
Whilst he was successful in having some convictions overturned, his appeal was not
entirely successful. The Court of Appeal revised his sentence down to seven years
imprisonment and condemned his conduct in the following way:
‘The sentencing judge was correct to denounce the applicant’s offending against those
complainants in the strongest possible terms…That type of conduct has no place in our
society and requires a lengthy custodial sentence.’
Significance
This case demonstrates how judges can denounce offenders during their sentencing
and how other purposes of sanctions, such as punishment, are also considered when
sanctioning an offender.
Protection 3.1.13.5
Protection can be achieved by removing offenders from society to ensure they do not
KEY TERM
pose a risk to the safety and welfare of their victims or society as a whole. The level
of protection provided to society should be proportionate to the degree of risk posed Protection the act of ensuring
by an individual offender. offenders do not pose a significant
risk to the welfare and safety of their
Many legal commentators state this purpose serves a ‘utilitarian’ benefit of criminal
victims and broader society.
sanctions. Depriving one dangerous offender of their freedom to ensure the protection
of wider society achieves the utilitarian principle of ‘greatest amount of good for
the greatest number of people’. Hence, a court aiming to reinforce protection would
impose a period of imprisonment, as opposed to a community corrections order
(CCO) where an offender can remain in society.

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3A THEORY

Protecting the people
Orla has been sentenced to life in prison without the possibility of parole after carrying
out a mass shooting that led to the death of nine people and left many others injured.
By removing Orla from society, citizens can be reassured that Orla is no longer posing
a threat to the safety and wellbeing of the entire community.
Lesson summary
• Each sanction can achieve most, if not all, purposes of sanctions to a certain degree.
• When sentencing an offender, a court must consider which of these purposes
it wishes to achieve.
Table 2 Summary of the purposes of sanctions
USEFUL TIP Purpose of sanction Explanation
When trying to remember the Rehabilitation • This purpose seeks to address and resolve the
purposes of sanctions, it may be helpful underlying causes of offending.
to use a mnemonic. The following • Rehabilitation can be achieved through rehabilitation
phrase is one you can use, or you can programs offered in prison or as part of CCOs.
make up your own!
Denunciation rehabilitation Punishment • When punishment is the purpose, sanctions will
Deterrence Protection Punishment be applied that penalise and hold an offender
– Dr DPP accountable for their actions.
• Punishing offenders ensures justice can be delivered
to victims and retribution can be sought for the
impact of the crimes committed.
Deterrence • This purpose can be specific to the offender

or applicable to the general public.
• Applying a sanction for the purpose of deterrence
aims to discourage an offender and/or the public
from committing the same or similar offences.
Denunciation • The court publicly condemns the offender’s actions

for violating society’s moral and ethical standards.
• The condemnation generally occurs at the end
of a hearing or trial during the judge’s statement.
Protection • Sanctions may be applied that aim to protect the

victim and/or society from the harm and threat
of the offender.
• This purpose can be achieved by removing the
offender from society through imprisonment.

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3A Questions
3A QUESTIONS
Question 1
sanction remedy
A is a penalty imposed by the court on an offender when they are found guilty of a crime.
Question 2
Which of the following is not a purpose of a sanction?
A. Rehabilitation
B. Promote access to the justice system
C. Deterrence
D. Punishment
Question 3
Achieving the purpose of protection allows offenders who pose a significant risk to the welfare of society
to remain within the community and close to their victim.
A. True
B. False
Question 4
break penalise
The purpose of rehabilitation is to sentence criminal offenders in a manner that aims to the cycle
of criminal behaviour. On the other hand, the purpose of punishment is to adequately an offender
and ensure they are held accountable for their crimes and their impact on the victims and society as a whole.
Question 5
Which of the following statements are not a reason for punishment? (Select all that apply)
A. To reward the offender for their actions.
B. To punish the victim for pursuing a case.
C. To ensure retribution is sought on behalf of the victim and society as a whole.
D. To adequately punish the offender for their offending.
Question 6
Which of the following statements refers to specific deterrence?
A. The general public is discouraged from committing offences of the same or similar nature due to the
possible sanction.
B. The victims are encouraged to commit offences of the same or similar nature due to the possible sanction.
C. The offender is discouraged from committing offences of the same or similar nature through the provision
of a sanction.
D. The offender is encouraged to commit offences of the same or similar nature through the provision
of a sanction.

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Question 7
Denunciation is the public condemnation and expression of the court’s outrage towards the offender’s
3A QUESTIONS
criminal behaviour.
A. True
B. False
Question 8
All purposes of sanctions are achieved by any sanction the court imposes.
A. True
B. False
Preparing for exams

Standard exam-style
Distinguish between general and specific deterrence.
At the conclusion of a trial, the sentencing judge comments:
‘Such heinous crimes are not encouraged nor tolerated by Victorian society and I intend to reflect my extreme
disdain for your disgraceful conduct in the sentence I am to impose.’
With reference to the statement above, describe denunciation as a purpose of sanctions.
Ezra has previously been convicted multiple times for assault offences and drunken brawls. He has been
charged and found guilty of another assault offence whilst under the influence of alcohol.
Explain why rehabilitation should be a consideration when imposing a sanction on Ezra.
‘Punishment is only achieved if victims and their families can take matters into their own hands and
seek revenge.’
Melanie was found guilty of culpable driving causing death. During sentencing, the judge stated that the
sanction imposed should address Melanie’s serious mental health conditions, but also serve to protect the
community as Melanie has previously been convicted of multiple dangerous driving offences.
Describe two purposes of sanctions that have been considered in Melanie’s case.

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Extended response
3A QUESTIONS
Gwyneth was convicted of multiple counts of drug trafficking and money laundering and has been
sentenced to 18 years in prison. During the sentencing hearing, the judge reprimanded Gwyneth’s illegal
behaviour and recommended that Gwyneth undertake drug and alcohol rehabilitation programs in prison
to address her substance abuse.
Question 14
Which of the following are purposes of Gwenyth’s imprisonment sentence? (Select all that apply)
A. Protection, as Gwenyth needs to be protected from her victims.
B. Rehabilitation, through treatment programs available in prison where the root cause of her offending
may be addressed.
C. Denunciation, as the judge reprimanded her actions during the sentencing hearing.
D. Punishment, as the judge is aiming to punish those who were wanting to purchase drugs from Gwenyth.
E. Specific deterrence, as given the lengthy sentence, if Gwenyth is rehabilitated she is unlikely to commit
a crime of a similar nature to avoid receiving the same, or a harsher, sanction.
Analyse the judge’s sentencing of Gwenyth, with reference to the purposes of sanctions.

Describe how plea negotiations can impact the punishment of an offender.

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3B Types of sanctions
• fines, community correction orders and imprisonment, and their specific purposes
3A 3B 3C
Image: Adam Gregor/Shutterstock.com
Schools have different punishments for

students who disobey the rules, depending 3.1.14.1 3.1.14.2 3.1.14.3
on the severity of their actions. For example, Fines Community Imprisonment
a student who forgets to do their homework correction orders
might receive detention, whilst a student
who is caught cheating on an exam could
be suspended. Similarly, there are different
types of sanctions that the court may
impose, depending on the severity of
the offender’s actions.
Lesson introduction
There are many sanctions a court can impose on an offender, ranging from minor
LESSON LINK to severe. For example, minor sanctions may require an offender to pay a sum
You learnt about sanctions in of money to the state, while severe sanctions may involve the offender being put
3A Purposes of sanctions. in prison for a period of time. When determining an appropriate sanction for
an offender, the courts consider the purpose of the sanction.
Fines 3.1.14.1
If an offender receives a fine, they are required to pay a sum of money to the state
KEY TERM
as a penalty for committing a particular criminal offence. A fine can be imposed
Fine a sanction that requires the alone or in combination with another type of sanction. Judges have the ability
offender to make a monetary payment to decide the appropriateness of imposing a fine and the amount the offender
as a penalty for a criminal offence. is required to pay. The maximum fine a court can impose depends on the offence
and is normally established in the offence’s relevant statute. Fines are expressed
LEGAL VOCABULARY
in penalty units, rather than dollar amounts.
Penalty units a measurement used
to define the amount that offenders
are required to pay as a fine for DEEP DIVE
certain offences.
Penalty units
Penalty units are a measure of the amount payable for an offence. Fines are expressed
in penalty units, as opposed to a monetary amount, as the rate of penalty units is indexed
yearly to match inflation. Therefore, it is more efficient to express fines in penalty
units and amend the value of a penalty unit rather than increasing fines by changing
LEGISLATION individual legislation. For example, section 23 of the Summary Offences Act 1966 (Vic)
outlines the offence of common assault, which has a maximum penalty of 15 penalty
Summary Offences Act 1966 (Vic) units or three months imprisonment. From 1 July 2023 to 30 June 2024, one penalty
unit in Victoria is $192.31. Therefore, if the court imposes the maximum fine of 15 penalty
units, an offender would be required to pay a total of $2,884.65.
120 CHAPTER 3: Sentencing

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The size of the fine imposed is influenced by various factors, including the purposes
the court wishes to achieve and any aggravating or mitigating factors. The court
also considers the offender’s ability to pay the fine. For example, a large fine imposed
3B THEORY
on a person with limited finances is likely to remain unpaid, meaning the imposition
of the fine is an ineffective punishment. Alternatively, a small fine imposed on
an offender with a high income and significant wealth may not be an effective
punishment or deterrent as it has a limited impact on their life.
USEFUL TIP
An important skill in Area of Study 1 of Unit 3 VCE Legal Studies is to ‘discuss the ability
of sanctions to achieve their purposes’. ‘Discuss’ means weighing up the strengths
and limitations of a sanction’s ability to achieve the purposes of sanctions. Therefore,
these tables showing the strengths and limitations of each sanction in relation to each
purpose can assist you to develop a discussion on this topic.
Table 1 The ability of fines to achieve the purposes of sanctions
Purpose Strengths Limitations

• Paying money to the state instead of using it for • Setting fines to reflect each offender’s capacity
personal purposes aims to penalise the offender. to pay may be considered unequal, unfair, and
• The payment of fines is usually required within unjust if offenders who commit the same offence
a short time frame, therefore the consequence are penalised differently.
Punishment is enforced almost immediately. • The legislated maximum penalty may not be high
• The court can align the fine with the offender’s enough to punish wealthy offenders.
ability to pay it, meaning the court can penalise
offenders according to their personal or financial
circumstances.
• The financial loss caused by a fine discourages • A legislated maximum penalty may not be high
an offender from reoffending, achieving specific enough to discourage wealthy individuals or large
deterrence. corporations from breaching the law, restricting
Deterrence the achievement of specific deterrence.
• The economic loss caused by a fine discourages
other members of the community from committing
similar offences, achieving general deterrence.
• Due to the deterrent effect of fines on people’s • Community protection is not directly achieved by
behaviour, fines can achieve some protection. a fine, as this sanction does not remove an offender
Protection For example, drivers are deterred from dangerous from the community or restrict their behaviour
behaviour on the roads due to the risk of fines in any way.
if they are caught.
• If a court imposes a very large fine, this • The maximum fine a court is able to impose
communicates the court’s disapproval and for a particular offence may not be high enough
condemnation of the offender’s behaviour. to send a message about the court’s condemnation
of the offender.
Denunciation
• Offenders who do not have the financial means
to pay a large fine will not be issued one by the
courts. Therefore, the court’s denunciation of the
offence may be limited by this condition.
– • Rehabilitation is not achieved by a fine. Any

underlying causes of criminal offending, such
Rehabilitation
as drug or alcohol addiction, will not be addressed
by a fine.

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Community correction orders 3.1.14.2

A court may impose a community correction order (CCO) on an offender, which
KEY TERM
3B THEORY
requires them to serve their sanction while remaining in the community under
Community correction order (CCO) certain conditions. A CCO may be imposed alone, alongside a fine, or with a period
a non-custodial sanction that is served of imprisonment, where the CCO is completed after the offender’s release if the
by the offender in the community with court believes this is appropriate. A judge or magistrate may order a CCO if:
certain conditions attached.
• the offence is punishable by five penalty units or more
LEGAL VOCABULARY • they do not think a fine is appropriate
Standard conditions terms attached • the offender has agreed to a CCO.
to all community correction orders that
the offender must follow. However, CCOs cannot be imposed for very minor offences, such as speeding, or for
Additional conditions requirements very serious offences, such as murder and manslaughter. A judge or magistrate will
specific to each offender that are also set a period for the offender to comply with the CCO. For a single offence, the
attached to a community correction maximum length of a CCO is two years, whilst for multiple offences, it can be up
order and must be followed by an to five years.
offender.
A CCO will include standard conditions and at least one additional condition
that the offender must follow. Breaching the conditions attached to a CCO is an
offence carrying a maximum penalty of three months imprisonment. The possibility
of imprisonment can act to deter the offender from breaching the conditions stated
in the CCO.
Table 2 Conditions attached to CCOs
Standard conditions Additional conditions

The offender must: The offender may be required to fulfil
• not reoffend while the CCO is in place. one or more additional conditions,
such as:
• not leave Victoria without permission.
• completing 600 hours of community
• report to a community correctional
service work (up to 20 hours
centre and regularly meet with their
each week).
supervisor.
• abiding by a curfew.
• notify their supervisor if there
is a change in address. • undertaking medical treatment or
rehabilitation programs, including
• comply with any direction that the
those for drug or alcohol addiction.
community correctional centre gives
the offender. • avoiding contact with a particular
person, including an accomplice
in the offender’s offence.
• staying away from a particular place,
including city centres or particular
suburbs.
• staying home between particular
hours or having a curfew.
• not consume alcohol and/or attend
licensed venues, including bars
or nightclubs.

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Table 3 The ability of CCOs to achieve the purposes of sanctions
3B THEORY
• A CCO can restrict an offender’s movements or • If the impact of an offence is very severe, such as a
actions depending on the additional conditions that violent assault, a CCO may not punish an offender
are attached to it. This may serve to penalise the sufficiently, causing unjust outcomes for victims,
Punishment
offender for their actions. The inconvenience of their families, and the community. In such cases,
completing many hours of unpaid community work imprisonment is a more appropriate sanction.
provides some retribution for the offender’s conduct.
• Given the inconvenience of community work • A CCO is not as severe as imprisonment. Therefore,
and the restrictions imposed by curfews, alcohol the wider community may not consider a CCO
bans, and other aspects of a CCO, an offender may as a severe or harsh punishment. Consequently,
be discouraged from reoffending to avoid receiving community members may not be discouraged
similar sanction conditions. This may, therefore, from criminal activity, limiting the achievement
achieve specific deterrence. of general deterrence.
• Given the inconvenience of community work • An offender may be relieved to receive a CCO
and the restrictions imposed by curfews, alcohol instead of imprisonment, meaning they may not
bans, and other aspects of a CCO, members of the be deterred from committing similar offences in
Deterrence
community may be discouraged from committing the future. Hence, this may limit the achievement
a similar offence to avoid similar sanction conditions. of specific deterrence.
Thus, this can achieve general deterrence.
• Specific deterrence can be achieved as judges
have a lot of flexibility in setting a CCO’s terms
to discourage each offender. Breaching a CCO
can result in the offender being imprisoned,
discouraging the offender from breaching the
terms of the CCO.
• The offender can be restricted from attending • The offender remains in the community and may
certain places, or from contacting specific people, not adhere to the conditions of the CCO. Therefore,
including victims and co-offenders, thus promoting community safety may not be promoted to the
community safety. same extent as imprisonment as the offender’s
Protection movements are not physically constrained.
• The imposition of curfews and alcohol bans, whilst
preventing an offender from attending a licenced
venue, can protect society from alcohol-driven
violence.
– • Denunciation may not be achieved by a CCO

as it is not as harsh as imprisonment and may not
Denunciation
be severe enough to ‘send a message’ about the
court’s condemnation of the offender.
• A CCO can include treatment for mental health • Though rehabilitation programs may be mandated
issues and drug or alcohol addiction that have by the conditions of the CCO, the rehabilitation
caused criminal offending, potentially reducing of an offender is also dependent on their willingness
the risk of reoffending. to participate and commitment to the program.
• Community work builds offenders’ self-esteem Therefore, if the offender is unwilling to engage
Rehabilitation with rehabilitative services and activities, the
and provides skills that may be useful in securing
employment. For example, many offenders in the underlying causes of offending may not be
Victorian justice system are unemployed and/ addressed and they may continue to offend.
or homeless, therefore, meaningful work is an
effective way to prevent criminal offending.

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LEGAL CASE
CONTENT WARNING This case mentions content that is sensitive in nature, relating to
3B THEORY
the death of a child.

Director of Public Prosecutions (DPP) v Browne (2023) 103 MVR 226
Facts
On Christmas day, Christopher Browne’s two-year-old son died after being thrown from
a two-seater buggy, driven by Browne, following an attempt to do a ‘burnout’ in a rural
paddock. Browne disregarded safety precautions by having his son sit on his lap without
wearing a seatbelt, whilst he also overrode the mechanism that limits the maximum speed of
Image: Aana_photo/Shutterstock.com the buggy when the seatbelt is not engaged. Browne’s daughter was sitting in the passenger
Figure 1 Browne received a term of seat and suffered minor injuries. Browne pleaded guilty to two charges, including culpable
imprisonment over the death of his son driving causing death, and the judge sentenced him to a CCO of three years.
who died after being thrown from a
two-seater buggy Legal issue
The prosecution appealed this decision on the grounds that the sentence was inadequate.
The Court of Appeal was, therefore, required to determine whether a more severe sanction
should be imposed based on the seriousness of the offence.
Decision
The Court of Appeal agreed with the prosecution’s argument and set aside the CCO.
Instead, Browne was sentenced to 15 months imprisonment with a non-parole period
of six months.
Significance
Given the seriousness of the offence, the imposition of a CCO would not have adequately
punished Browne for his actions that resulted in the death of his two-year-old son. The
implementation of a term of imprisonment is significantly more likely to deter Browne from
committing similar offences in the future, particularly in regard to his daughter.
Imprisonment 3.1.14.3
The most severe penalty that a court can impose is imprisonment, which involves
KEY TERM
removing the offender from society for a given period of time. When a court imposes
Imprisonment a sanction that removes a prison term, it will usually provide a minimum period of imprisonment, after which
an offender from the community and an offender can apply for parole. If the offender has behaved well in prison and is not
places them in a prison for a given regarded as a threat to public safety, they will likely be released on parole. However,
period of time.
they will usually be supervised in some way, and are often subject to certain conditions.
Whilst many prisoners apply for parole, some have their request rejected and therefore,
LEGAL VOCABULARY
serve their full sentence in prison.
Parole the early release of a
prisoner, after their minimum term of
imprisonment is served, which is subject DEEP DIVE
to supervision and certain conditions.
Penalty scale for imprisonment
The maximum term of imprisonment that a court can impose is dependent on the offence
and is set out in the offence’s relevant statute. The maximum term of imprisonment is
established according to a penalty scale, which has nine levels of severity for imprisonment.
Table 4 Penalty scale for imprisonment
Level Maximum Maximum Example of offences

prison term fine
Level 1 Life n/a • Murder
imprisonment • Trafficking a drug of dependence
(large commercial quantity)
Level 2 25 years 3,000 penalty • Manslaughter

units • Rape
Level 3 20 years 2,400 penalty • Culpable driving causing death

units • Intentionally causing
serious injury
Continues →

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DEEP DIVE
Penalty scale for imprisonment – Continued
3B THEORY
Table 4 Continued
Level Maximum Maximum Example of offences

prison term fine
Level 4 15 years 1,800 penalty • Arson
units • Recklessly causing serious injury
Level 5 10 years 1,200 penalty • Theft

units • Threats to kill
Level 6 Five years 600 penalty • Recklessly causing injury

units • Possession of a drug of
dependence (for the purpose
of trafficking)
Level 7 Two years 240 penalty • Unauthorised access to or

units modification of restricted data
Level 8 One year 120 penalty • Possession of a drug of

units dependence (not for the purpose
of trafficking)
Level 9 Six months 60 penalty • Concealing the birth of a child

units
Adapted from ‘Maximum Penalties’ (Sentencing Advisory Council, 2023)
Where an offender is charged with multiple offences, the judge will either impose
LEGAL VOCABULARY
a concurrent sentence, whereby the offender will serve each sentence at the same
time, or a cumulative sentence, whereby the offender will serve each sentence one Concurrent sentence a sentence
of imprisonment or detention that
after the other. Cumulative sentences are considered more severe than concurrent
is served at the same time as another
sentences as they increase the offender’s overall term of imprisonment. when an offender is convicted of more
than one crime.
HYPOTHETICAL SCENARIO Cumulative sentence a sentence
of imprisonment or detention that
CONTENT WARNING This section mentions content that is sensitive in nature, relating commences after the completion
to violence. of another when an offender has been
convicted of more than one crime.
How should Gabi serve her two sentences?
Gabi has been found guilty of assault and stalking in the County Court. The judge
sentenced Gabi to two years imprisonment for assault and 14 months imprisonment
for stalking. Therefore, the judge could either order that:
• Gabi serves the two sentences concurrently, meaning she will be in prison for a total
of two years. This is because the two sentences of assault and stalking will be served
at the same time.
• Gabi serves her two sentences cumulatively, meaning she will be in prison for a total
of three years and two months. This is because the two sentences of assault and
stalking will be served one after the other.

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Table 5 The ability of imprisonment to achieve the purposes of sanctions

3B THEORY
• The offender is placed in a harsh environment where –

their movement and liberty is restricted.
• The offender loses most contact with family
Punishment
and friends.
• The offender will usually lose their employment
and therefore, any income whilst in prison.
• The harsh punishment of prison is likely to • Prison is not an effective deterrent for many
discourage offenders from reoffending out of fear offenders. In Victoria, the rate of recidivism
of receiving a similar sentence. Hence, this can is high, with approximately 43.3% of offenders
achieve specific deterrence. reoffending within 2 years (Sentencing Advisory
• The harsh punishment of prison can discourage Council, 2023). Some crimes, where imprisonment
Deterrence members of the community from committing is a possible sanction, do not ultimately result
a similar offence out of fear of receiving a similar in a prison sentence due to factors that decrease
sentence. This can support the achievement the severity of an offence, including mitigating
of general deterrence. factors such as being under the influence of
drugs or alcohol. Therefore, offenders may not
be discouraged by a possible prison term.
• The offender is removed from society and therefore, • Long term community protection may not be
does not pose a significant risk to the welfare of the achieved if an offender reoffends upon release. There
community or their victims. are various reasons for reoffending, including that
Protection they were not specifically deterred from reoffending
by their prison sentence, or due to underlying
reasons for offending were not addressed, such as
mental health issues, or drug or alcohol addiction.
• Prisons provide some rehabilitation programs to • The need amongst prisoners for services to treat drug
address issues, such as alcohol and drug dependency, and alcohol addiction far exceeds those provided, as
that cause offenders to commit crimes. there are often very long waiting lists for access to
such programs. Many prisoners leave prison without
their alcohol or drug-related issues being addressed.
• If an offender has mental health issues that
contributed to their offending, putting them in a
harsh environment away from family, friends, and
meaningful work, surrounded by other criminals,
Rehabilitation
can often make such issues worse.
• Though rehabilitation programs are available
in prison, the rehabilitation of an offender is also
dependent on their willingness to participate and
commitment to the program. Therefore, if the
offender is unwilling to engage with rehabilitative
services and activities, the underlying causes
of offending may not be addressed and they may
continue to offend.
LEGAL VOCABULARY Lesson summary

Rate of recidivism a measure of the
The courts must determine which type of sanction is most appropriate to impose
number of offenders who return to
on an offender before them. When doing so, the courts will consider the purposes
prison or other corrective services
after their initial release. that they want the sanction to achieve, and select the most suitable sanction that
upholds these specific purposes in relation to the offender and the crime committed.

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Table 6 The specific purposes of fines, community correction orders, and imprisonment
Punishment Deterrence Protection Denunciation Rehabilitation
3B QUESTIONS
Fines
Community
correction
orders
Imprisonment
3B Questions
Question 1
Before imposing a sanction on an offender, the courts consider whether the sanction will achieve its purposes.
A. True
B. False
Question 2
A community correction order is suitable when:
A. the offence is punishable by less than five penalty units.
B. the offender has agreed to fulfil the requirements.
C. the offence is murder.
Question 3
a CCO imprisonment
If the court imposes , the offender will be held in custody for a given period of time. Alternatively, if the
court imposes , the offender can remain in the community.
Question 4
If a prisoner is released on parole, they will usually be supervised in some way, and are often subject
to certain conditions.
A. True
B. False
Question 5
If a court imposes a term of imprisonment:
A. it can also impose another type of sanction, such as a fine.
B. it cannot impose another type of sanction as the court can only impose one sanction at a time.

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Question 6
Which of the following statements are correct about the appropriateness of the courts imposing a fine?
3B QUESTIONS
A. A court should impose a large fine on a person with no income or wealth as this will punish them severely.
B. Each court should analyse the income and wealth of the offender to determine the size of the fine that
should be imposed for effective punishment.
C. A court should impose a small fine on a person with a high income and significant wealth as this will
punish them sufficiently.
D. A court should impose a large fine on a person with a high income and significant wealth as this will
impact their day-to-day life and effectively punish them.
Question 7
Which of the following statements are correct about the ability of types of sanctions to achieve their purposes?
A. Imprisonment will result in the offender losing most contact with family and friends, ensuring they are
punished for their actions.
B. The economic loss caused by a fine can discourage an offender from reoffending, achieving specific deterrence.
C. Given the inconvenience of community work and other aspects of a CCO, society may be discouraged
from committing similar offences to avoid receiving similar sanction conditions. Therefore, achieving
general deterrence.
D. A small fine being imposed on a wealthy offender will communicate the court’s disapproval and
condemnation of the offender’s behaviour, achieving the purpose of denunciation.
E. Imprisonment may require the offender to complete community service, which builds self-esteem and
provides skills that may be useful in securing employment, therefore assisting with rehabilitating the offender.
F. As imprisonment removes the offender from society, they do not pose a significant risk to the welfare
of society or their victims, achieving the purpose of protection.
Preparing for exams

Standard exam-style
Describe one sanction that may be imposed on an offender.
Adapted from VCAA 2017 exam Q1a
Wayne pleaded guilty to two charges in the County Court of Victoria. He is currently serving his sentence
in the community, as he is required to complete 200 hours of community service and undertake medical
treatment for his drug addiction.
Outline the type of sanction that has been imposed on Wayne.
Extended response
Question 10
Which of the following statements are correct about the purposes of fines? (Select all that apply)
A. Fines may not achieve punishment if the legislated maximum penalty is not high enough to punish
wealthy offenders.
B. Fines may achieve rehabilitation because the money acquired by the state can be used to assist the offender.
C. Fines do not achieve protection as an offender is not removed from the community, nor is their behaviour
restricted or controlled.
D. If a court imposes a large fine, this will not deter the offender or community from committing an offence,
as the offender has been ‘let off’.
E. Fines may achieve denunciation if a court imposes a large fine, as this can communicate the court’s
disapproval and condemnation of the offender’s behaviour.

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To what extent do fines achieve two purposes of sanctions? Justify your response.
3B QUESTIONS
Use the following information to answer questions 12 and 13
Elias has been charged with culpable driving causing death, which carries a maximum of 20 years
imprisonment. He has pleaded not guilty in the Supreme Court of Victoria. The prosecution alleges
that Elias was under the influence of alcohol and was driving 60 km above the speed limit, causing him
to crash into another car, killing the driver.
Question 12
Which of the following statements are limitations of imprisonment to both deter Elias and protect
the community? (Select all that apply)
A. The rate of recidivism is high, as approximately 43.6% of those released from Victorian prisons reoffend
within 2 years. This suggests prison is not an effective specific deterrent for many offenders, such as Elias.
B. Community protection in the long term may be limited as many prisoners, like Elias, who are released
will reoffend.
C. The community will be protected from Elias as he will be removed from society and therefore, does not
pose a significant risk to the welfare of the public or his victims.
D. Elias will likely be deterred from reoffending out of fear he will receive a similar sentence, particularly
as the offence of culpable driving causing death carries a maximum of 20 years imprisonment.
Discuss the ability of imprisonment to both deter Elias and protect the community if Elias is found guilty and
sentenced to a term in prison.

Toby was charged with manslaughter. He was found guilty and sentenced in the Supreme Court of Victoria.
a. Outline one reason why there is a court hierarchy in Victoria with reference to Toby’s case. 2 MARKS
b. Describe one sanction that may have been imposed on Toby. 2 MARKS
c. To what extent does the sanction identified in part b. achieve the purpose of rehabilitation?
Justify your response. 4 MARKS

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3C Factors considered in sentencing

• factors considered in sentencing, including aggravating factors, mitigating

factors, guilty pleas and victim impact statements
3A 3B 3C
Image: MR.Yanukit/Shutterstock.com
If you had an argument with a friend, would

you be more likely to forgive them if they 3.1.15.1 3.1.15.2 3.1.15.3 3.1.15.4
apologised straight away? If your friend has Aggravating Mitigating Guilty pleas Victim impact
argued with you on a number of occasions factors factors statements
in the past, would this impact your decision
to forgive them? In the same way, some
factors influence your decision to forgive
a friend, judges consider various factors
when determining an appropriate sentence
for an offender.
Lesson introduction
When sentencing an offender, the courts consider a wide range of factors, listed
LEGISLATION in the Sentencing Act 1991 (Vic), to assist in determining an appropriate sanction
for the offender. These factors may affect the seriousness of the offence, and
Sentencing Act 1991 (Vic) consequently increase or decrease the severity of the sentence for the offender.
The court may consider factors relating to the conduct of the offender, as well as the
impact of the offence on victims and their families. Therefore, these factors ensure
the offender receives a just penalty that adequately reflects their conduct, and
achieves justice for all those involved.
Aggravating factors 3.1.15.1

Aggravating factors increase the seriousness of the offence and consequently,
KEY TERM
can increase the sentence a court imposes on an offender. Aggravating factors
Aggravating factors aspects of an increase the culpability of the accused, and therefore, the degree to which they
offence or the offender that render the are at fault. Hence, the presence of aggravating factors can push a court toward
offending more serious and can lead imposing a more severe sanction. For example, the existence of aggravating factors
to a more severe sentence. may result in the imposition of a community correction order (CCO) rather than
a fine, or a longer period of imprisonment instead of a shorter prison term.
LEGAL VOCABULARY
Examples of aggravating factors include:
Culpability a measure of the degree
to which an individual can be held • the crime was planned or premeditated.
legally responsible for a criminal act. • a weapon was used in the course of committing a crime.
Premeditated the conscious, willful, and • the crime was motivated by prejudice toward or hatred of a particular group,
deliberate planning of an act in advance.
such as a religious or ethnic group.
• the crime was committed by a group of offenders upon an ‘outnumbered’ victim.
• the victim of the offence is a particularly vulnerable person, such as an elderly
LESSON LINK
person, a person with a disability, or a child.
You learnt about CCOs, fines, and
imprisonment in 3B Types of sanctions.
• the offence took place in front of children.
• the offender has prior convictions for similar offences.

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LEGAL CASE
CONTENT WARNING This section explores content that is sensitive in nature,
3C THEORY
Bava v R [2021] VSCA 34
Facts
On 4 June 2015 at 5 am, Mr Brown was lying on the couch in his living room when three
men kicked the back door, yelling ‘Police! Police! Get on the ground’. The offenders taped
Brown’s legs, hands, and eyes whilst they proceeded to ransack his house, stealing items,
such as a shotgun, television, and cash. Mr Barlow, who was also asleep in the house at
the time, awoke to the various noises as a result of the robbery. When he investigated
the house, he was struck on the head with a metal pole by one of the offenders. Bava was
arrested in 2015, charged and found guilty of aggravated burglary, and sentenced to six
years imprisonment with a non-parole period of four years. However, Bava launched an
application for leave to appeal against the sentence imposed on the basis that the sentence
was too severe.
Legal issue
The Supreme Court – Court of Appeal was required to determine whether there was
a basis for Bava’s application for leave to appeal against the severity of the sentence.
Decision
The application was rejected as the court stated that the sentence imposed was
appropriate given the aggravating factors prevalent in the case. USEFUL TIP
Significance When you aggravate someone,
The court specified a number of aggravating factors that appropriately increased the you are making them more irritable
severity of the sentence imposed on Bava, including: or annoyed and are therefore
worsening their mood. In a similar
• the offender pretended to be a police officer undertaking a police raid.
way, aggravating factors worsen the
• the offence occurred early in the morning when the victim was asleep. circumstances of a person’s crime and,
• the offence involved some planning. consequently, increase their sentence.
Mitigating factors 3.1.15.2

Mitigating factors decrease the seriousness of an offence and consequently, can
KEY TERM
decrease the sentence a court imposes on an offender. Mitigating factors decrease
the culpability of the accused, and therefore, the degree to which they are at fault. Mitigating factors aspects of an
Hence, the presence of mitigating factors can push a court toward imposing a less offence or the offender that render
severe sanction. For example, the existence of mitigating factors may result in the the offending less serious and can
imposition of a fine rather than a CCO, or a shorter period of imprisonment instead lead to a less severe sentence.
of a longer prison term. Mitigating factors include:
LEGAL VOCABULARY
• genuine remorse.
Provocation an action or statement
• the crime is the result of provocation, rather than premeditation. that aggravates an individual, leading
• the age of the offender, as a particularly young offender may be regarded more to a criminal act.
capable of rehabilitation and therefore, can receive greater leniency.
• an offender having a particularly traumatic personal history, such as growing
up surrounded by family violence, drug addiction, and/or alcoholism.
• a limited or no prior criminal history.
• an offender cooperating with police during their investigation of the offence.
• favourable prospects of rehabilitation, such as a person convicted of theft
or robbery, who was offending to finance a drug addiction, commencing a
rehabilitation program before being sentenced.
The courts have long established that a lack of remorse will not be considered an
aggravating factor. However, if the offender shows genuine remorse, this is a mitigating
factor that is considered by the courts when determining an appropriate sentence.

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Aggravating factors: Mitigating factors:

• increase the gravity • decrease the gravity
of the offence and the of the offence and the
offender’s culpability. offender’s culpability.
3C THEORY
• can cause the imposition • can cause the imposition

of a harsher sentence. of a less severe sentence.
Figure 1 Judges will weigh up the impact of both mitigating factors and aggravating factors when
imposing a sentence
LEGAL CASE
to death.
Laz v The Queen [2022] VSCA 160
Facts
A 21-year-old female learner driver was driving up to 140 km/h in a 70 km/h zone in
a stolen car. She was driving erratically and irresponsibly, speeding through red lights,
swerving onto tram tracks, and using her mobile phone while driving. As a result, she
collided with a scooter, killing one person and seriously injuring another. She did not stop
to assist the victims and instead, drove off before being caught and arrested by police.
She was charged with various offences, including theft and culpable driving causing
death. Initially, she was sentenced to a jail term of 11 years and six months, however, she
appealed to the Supreme Court of Appeal on the basis that this sentence was too severe.
Legal issue
Image: ninoon/Shutterstock.com
In sentencing, the Court of Appeal had to determine whether the initial sentence imposed
Figure 2 The Court of Appeal considered
mitigating factors and reduced the severity on the offender was too severe by analysing the relevant aggravating and mitigating factors.
of the sentence imposed on the offender Decision
The Court of Appeal accepted that the sentence imposed was too severe due to a number
of mitigating factors that rendered the offending less serious, including:
• the offender had a disadvantaged background with a traumatic upbringing.
• the early guilty plea of the offender.
• the limited criminal history of the offender.
• the offender demonstrated prospects of rehabilitation.
Significance
As a result of these mitigating factors, the court reduced the term of imprisonment
to 10 years and six months.
Guilty pleas 3.1.15.3

A guilty plea occurs when an accused person admits they have committed an offence
KEY TERM
for which they have been charged. An accused person charged with multiple offences
Guilty plea a full admission of guilt may choose to plead guilty to some or all charges. When an accused person pleads
by an accused person of an offence guilty, a trial will not be conducted. The prosecution does not need to present evidence
for which they have been charged. to persuade the court the accused is guilty, instead, the court will proceed to sentence
the offender. The courts regard a guilty plea as a mitigating factor, reducing the severity
of the sanction imposed.
Benefits of a guilt plea
Prosecution Society Victims Accused Courts
Does not Saves costs Avoids the Avoids the Workloads

have to prove and time stress and stress, time, are reduced,
the guilt of involved in trauma and costs minimising
the accused conducting involved in involved in a delays in other
a trial going to trial criminal trial criminal matters
that go to trial
Figure 3 The benefits of a guilty plea

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In some matters, if a court imposes a less severe sanction because the offender
LEGAL VOCABULARY
entered into a guilty plea, it is required to state the extent to which it has reduced the
sentence. This is referred to as a sentencing discount. That is, the court must not only Sentencing discount a reduction in an
offender’s sentence that they receive
3C THEORY
state the sentence imposed, but the sentence that would have been imposed if the
for pleading guilty to an offence.
offender had pleaded not guilty and was then convicted at the conclusion of a trial.
In general, the earlier in the proceedings the accused person pleads guilty, the greater
the discount applied to their sentence. However, the impact of an early guilty plea LEGISLATION
is just one factor considered when a court imposes a sentence. Whilst it would usually
reduce the severity of a sanction, it would be weighed against other mitigating and
aggravating factors when deciding what sentence is appropriate.
to death.
An inflammatory response to enact revenge
After an argument with his girlfriend Sarah, Samarth decided to set her house on fire
as revenge. At a time Sarah would normally be at work, Samarth snuck into her house
using the key she had given him and covered it in gasoline. He then lit a match and threw
it into the house, which was instantly covered in flames. His crime was later televised
on the news and Samarth discovered that Sarah had been sleeping inside the house
when he ignited the fire and had been killed. Samarth instantly regretted his actions and
turned himself into the police.
Samarth was charged with arson causing death, which is punishable by a maximum of
25 years imprisonment pursuant to the Crimes Act 1958 (Vic). He pleaded guilty at the Figure 4 The court considered Samarth’s
early guilty plea and remorse during
first available opportunity and showed genuine remorse to the court by stating he deeply
sentencing
regretted his actions. When determining an appropriate sentence for Samarth, the court took
into consideration mitigating factors, including his early guilty plea and his remorse. However,
the court also considered aggravating factors, including the crime being premeditated.
Victim impact statements 3.1.15.4

A victim impact statement (VIS) is a written or verbal statement that details the
KEY TERM
impact that an offence had upon the victim. A VIS may include physical, emotional,
and/or financial loss caused by an offence, and can incorporate photographs to Victim impact statement (VIS)
demonstrate this loss. A VIS may be given by those directly impacted by an offence, a written or verbal statement made
such as the person hit during an assault, as well as other individuals who are not to a court about the effect of an offence
upon the victim.
directly impacted by the offence, including the victim’s family members.
The purpose of a VIS is to inform the court of the severity of the offence. If a VIS
indicates the crime had a significant impact on the victim, the court would likely
increase the severity of the sanction imposed. Alternatively, if a VIS indicates the
victim forgives the offender, this may result in a less severe sanction being imposed.
Whilst a VIS will assist the court in understanding the impact of the crime, victims’
statements about what might be an appropriate sanction will not inform the court’s
sentencing decision. A VIS is one factor considered by the court when imposing
a sanction, meaning it will be weighed against other mitigating and aggravating
factors presented to the court.

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LEGAL CASE
CONTENT WARNING This section discusses content that is sensitive in nature,

3C THEORY
relating to physical assault.

Packard (A Pseudonym) v R [2021] VSCA 56
Facts
On 17 January 2020, the accused had a heated argument with his wife which led to a
domestic fight that resulted in the accused stabbing his wife five times. At the time of
the offence, the accused’s children were in the house and heard their mother screaming.
The accused pleaded guilty to one charge of intentionally causing serious injury in the
County Court of Victoria. He was sentenced to a term of imprisonment of seven years,
with a non-parole period of four years and six months. However, the accused launched
an application for leave to appeal against the sentence on the basis that the sentence
was too severe.
Legal issue
The court was required to determine whether there was a basis for the accused’s
application for leave to appeal against the severity of the sentence. In particular, the
accused argued the court failed to take into account his wife’s victim impact statement
(VIS) in which she expressed her forgiveness to her husband. In her VIS, she stated
that the accused had never been violent before and that her injuries, both physical and
emotional, had healed over time. As a result, she asked the court to ‘give the greatest
possible mercy and compassion’ to her husband.
Decision
The application was rejected as the court stated that the sentence imposed was
appropriate given the aggravating factors prevalent in the case. The court noted that the
trial judge had considered the VIS in determining an appropriate sentence to impose on
the accused.
Significance
As a result of the application for leave to appeal being rejected, the accused’s sentence
remained.
Lesson summary
Overall, during sentencing, the court will weigh any aggravating factors against
mitigating factors to determine an appropriate sanction for the offender.
• Aggravating factors render the offender’s actions more serious and increase
the severity of the sentence. For example, a victim impact statement (VIS)
that indicates the crime had a very significant impact on the victim will be
considered an aggravating factor.
• Mitigating factors render the offender’s actions less serious and decrease the
severity of the sentence. For example, a guilty plea is considered a mitigating
factor as this is a full admission of guilt.
USEFUL TIP
When trying to remember the various factors a judge will consider when sentencing an
offender, it may be helpful to use a mnemonic. The following phrases are examples of
mnemonics you could use to remember the factors considered in sentencing. You could
even make up your own!
After Midnight Gary Vacuums
Amazing Mothers Grow Vegetables
Arnold Makes Green Vehicles

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3C Questions
3C QUESTIONS
Question 1
When deciding on an appropriate sentence, the court will consider factors that render the offending more
or less serious, which may increase or decrease the severity of the sentence.
A. True
B. False
Question 2
Which of the following are examples of aggravating factors? (Select all that apply)
A. The offender grew up surrounded by family violence and drug addiction.
B. The crime was premeditated.
C. A weapon was used in the course of committing a crime.
D. The victim of the offence was a young child.
E. The offender did not show any remorse.
Question 3
an aggravating a mitigating
If the offender committed a crime that was motivated by prejudice toward, or hatred of a particular group, such as a religious
or ethnic group, this will be factor considered by the courts in sentencing.
Question 4
A victim impact statement (VIS) can be an aggravating factor or mitigating factor that the courts consider
during sentencing.
A. True
B. False
Question 5
victim impact statement guilty plea
A may result in the court imposing a less severe sanction by applying a sentencing discount.
Question 6
Remorse is considered a mitigating factor, whilst a lack of remorse is considered an aggravating factor.
A. True
B. False

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Preparing for exams

Standard exam-style
3C QUESTIONS
Stavros has been charged with an indictable offence. He has pleaded not guilty despite the incriminating
evidence against him. Stavros’ lawyer is encouraging him to plead guilty.
Describe one impact that a guilty plea may have on Stavros’ criminal case.
Distinguish between mitigating factors and aggravating factors, and provide an example of each.
Extended response
Use the following information to answer Questions 9 and 10.
Zuri was arrested after shouting racial slurs and threatening to injure children and families with a knife
in a crowded park. At the time of the offence, Zuri was under the influence of illicit substances. Zuri
pleaded guilty at the first available opportunity and stated that she regretted her actions and is willing
to accept the consequences.
Question 9
Which of the following statements are correct about factors that the court may consider in sentencing Zuri?
A. The court may consider aggravating factors, such as the fact that Zuri committed the offence in a crowded
park filled with young kids and families.
B. The court may consider mitigating factors, such as the fact that Zuri used a knife to threaten to injure
people at the park, instead of a more severe weapon.
C. The court may consider Zuri’s guilty plea as she pleaded guilty at the first available opportunity.
D. The court may consider mitigating factors, such as Zuri demonstrating remorse by stating she regrets her
actions and is willing to accept the consequences.
Analyse the factors the court would have to consider before sentencing Zuri.

Use the following information to answer Questions 11 and 12.
Whilst driving drunk, Nathan veered onto the wrong side of the road and collided head-on with Bec, who
consequently suffered severe head injuries. Nathan was eventually arrested after being on the run for three
days and was charged with three offences, including dangerous driving causing serious injury. He pleaded
not guilty to each offence and has no prior convictions. Bec is worried about presenting evidence at trial.
Nathan’s lawyer is advising Nathan to enter into plea negotiations with the prosecution.

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Question 11
Tick the box to indicate whether the following statements demonstrate that plea negotiations are appropriate
3C QUESTIONS
or not appropriate in relation to Nathan.
Statement Appropriate Not appropriate

I. Nathan may not be prepared to plead guilty to the charges against him, particularly
as he has already pleaded not guilty to each of the three offences he has been
charged with.
II. Plea negotiations can secure a guilty verdict for the prosecution, particularly as Bec
is worried about presenting evidence at trial.
III. Plea negotiations can allow both Nathan and the prosecution to avoid the costs and
time associated with a criminal trial.
IV. Nathan may end up pleading guilty to a lesser charge, or fewer charges altogether.
a. If the case proceeds to trial, describe one impact that aggravating factors may have, and one impact that
mitigating factors may have on Nathan’s criminal case. 4 MARKS
b. Discuss the appropriateness of plea negotiations in Nathan’s case. 6 MARKS


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UNIT 3 AOS 2
The Victorian civil justice system
One of the aims of the Victorian civil justice system is to system to achieve the principles of justice. Students
restore a wronged party to the position they were originally synthesise and apply legal principles and information
in before a breach of civil law occurred. There are a range of relevant to the civil justice system to actual and/or
institutions in Victoria that aim to help parties resolve a civil hypothetical scenarios.
dispute, including courts (the Magistrates’ Court, County
Court and Supreme Court), Consumer Affairs Victoria, and
Outcome 2
the Victorian Civil and Administrative Tribunal. On completion of this unit the student should be able to
explain the key principles in the civil justice system, discuss
In this area of study, students consider the factors relevant the ability of remedies to achieve their purposes and evaluate
to commencing a civil claim, examine the institutions and the ability of the civil justice system to achieve the principles
methods used to resolve a civil dispute and explore the of justice during a civil dispute.
purposes and types of remedies. Students consider the
impact of time and costs on the ability of the civil justice
KEY SKILLS
• define and use legal terminology • discuss the impact of costs and time on the achievement of
• discuss, interpret and analyse legal principles and the principles of justice
information • discuss the ability of remedies to achieve their purposes
• compare the roles of key personnel in a criminal and civil case • evaluate the ability of the civil justice system to achieve the
• analyse factors to consider when initiating a civil claim principles of justice during a civil dispute
• justify the reasons for the Victorian court hierarchy in • synthesise and apply legal principles and information to
determining civil disputes actual and/or hypothetical scenarios.
• discuss the appropriateness of class actions, methods and
institutions used to resolve a civil dispute
138
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4
CHAPTER 4
Key concepts of the Victorian civil
justice system
4A Key principles of the Victorian civil justice system • key principles in the Victorian civil justice system,
including the burden of proof and the standard of proof
4B Initiating a civil claim • factors to consider before initiating a civil claim, including
costs, limitation of actions and enforcement issues.
Image: Korkusung/Shutterstock.com
139
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4A Key principles of the Victorian

civil justice system
• key principles in the Victorian civil justice system, including the burden of proof
and the standard of proof
4A 4B
Image: DCornelius/Shutterstock.com
It is another day in the Wild West. Employers

are leaving employees unpaid without any 3.2.1.1 3.2.1.2 3.2.1.3
consequences, cancel culture is running An introduction The burden of The standard of
rampant on social media, and landlords are to civil law proof in civil law proof in civil law
able to avoid any responsibility for the rat
infestations in their rental properties…
Imagine if this was actually how society
operated! Fortunately, the civil justice
system exists to promote social cohesion
and uphold the rights of individuals when
they have been breached by another party.
Lesson introduction
The Victorian civil justice system ensures the rights of individuals, groups, and
organisations are protected and aims to provide opportunities for a wronged party
to have their rights restored when a breach in civil law occurs. When disputes arise
between two or more parties, the civil justice system provides the mechanisms,
processes, and institutions that can assist parties in resolving their grievances and
restore the wronged party to their original position prior to their loss.
An introduction to civil law 3.2.1.1

The Victorian civil justice system plays an important role in enforcing civil law by
KEY TERM
ensuring the rights and responsibilities of individuals, entities, and organisations are
Civil law an area of law that defines the upheld and protected. Unlike criminal law, which involves the state or Commonwealth
rights and responsibilities of individuals, prosecuting offenders in court, civil law deals with disputes between individuals,
government entities, and organisations, corporations, or government bodies where there has been an alleged infringement
and provides a legal framework for
of rights.
when these parties interact with
each other. Additionally, civil disputes may be resolved outside of a courtroom through alternate
dispute resolution institutions, such as Consumer Affairs Victoria (CAV). There are
also different methods of resolving a dispute, such as mediation, that encourage parties
to settle their dispute outside of the courts. Furthermore, there are many different
LESSON LINKS
types of claims that the civil justice system deals with, therefore ensuring different
You will learn more about Consumer
rights are protected under civil law.
Affairs Victoria in 5H Consumer Affairs
Victoria (CAV).
You will learn more about mediation USEFUL TIP
and other dispute resolution methods in
The two parties in a civil dispute are known as the plaintiff and the defendant. The plaintiff
5B Methods of resolving civil disputes.
is the party pursuing the claim against the defendant and is the person who has allegedly
You will learn more about remedies had their rights breached. On the other hand, the defendant is the party who has allegedly
in Chapter 6 – Remedies. committed a civil breach and inflicted harm on the plaintiff or has caused them to suffer
some kind of loss.
140 CHAPTER 4: Key concepts of the Victorian civil justice system

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Table 1 Types of civil claims
Type of civil claim Explanation Example LEGAL VOCABULARY
4A THEORY
Negligence Occurs when the defendant An employee was physically Plaintiff the party that initiates a
owes a duty of care to the injured for incorrectly civil claim against another person,
plaintiff and breaches operating hazardous the defendant, in court.
this duty. equipment and is seeking Defendant the party that is defending
compensation from their themself against a claim by another
employer for failing to provide person, the plaintiff, for an alleged
adequate training on how breach of civil law.
to operate the equipment.
Defamation Occurs when the defendant A celebrity had an article

communicates false full of lies about their new
statements to a third party relationship published on
about the plaintiff, which social media and is seeking
damages the plaintiff’s compensation for damage
reputation. to their reputation.
Breach of contract Occurs when the defendant A person entered into

fails to perform their a contract with a builder
obligations arising from the to do renovations on their
terms of a contract. home. The builder failed
to complete the renovations
to a satisfactory standard
and the person is seeking
compensation.
Family law Deals with matters relating A couple has divorced and
to parents, children, and other the wife wants sole custody
family members. It also relates of their three children.
to property disputes arising
from a breakdown in marital
or de-facto relationships, such
as those regarding the division
of assets.
Trespass to land Occurs when the defendant A farmer is seeking

unlawfully interferes with the compensation against
land the plaintiff possesses. a group of teenagers
who entered her land
without permission.
Private nuisance Occurs when the defendant An individual is seeking

unlawfully interferes with compensation against a
LESSON LINK
the plaintiff’s use next-door neighbour for
or enjoyment of land. playing loud music 24 hours You will learn more about the courts in
a day. 5J Resolving civil disputes in the courts.
Law
1. Parties attempt 2. The plaintiff 3. Parties prepare 4. The judge may 5. If a settlement 6. The judge or 7. If the defendant
to reach an commences a their case order parties to is not reached, jury will make is found liable,
out-of-court civil proceeding for trial. attend mediation parties will a decision as a remedy will
settlement. in court. to encourage present their to whether be awarded
an early case at a trial. the defendant to the plaintiff.
determination is liable.
of the case.
Figure 1 Common stages of a civil proceeding

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KEY TERM The burden of proof in civil law 3.2.1.2

Burden of proof the responsibility The burden of proof refers to the responsibility for proving the facts of the case, which
4A THEORY
of a party to prove the facts of a case. lies with the party who initiates the claim. Therefore, in a civil dispute, the burden
of proof rests with the plaintiff. This means the plaintiff must prove the defendant was
LEGAL VOCABULARY
liable for the claim against them. However, the burden of proof in civil claims can shift
Counterclaim a separate claim made from the plaintiff to the defendant if the defendant files a counterclaim. In this case,
by the defendant against the plaintiff.
as the defendant is initiating a separate claim against the plaintiff, they are responsible
for proving this claim.
The defamation duel

Morgan Price Morgan Price is a famous actor in Hollywood. Martini Magazine, a popular gossip tabloid,
published a series of articles stating Price lied about his age and background to land
The reporters at Martini Magazine high-paying Hollywood roles. After reading the articles, Price wanted to sue Martini
are a bunch of idiots with no media Magazine and tweeted ‘The reporters at Martini Magazine are a bunch of idiots with
qualifications whatsoever! no media qualifications whatsoever!’. He initiated proceedings in the County Court,
claiming lost wages and damage to his reputation, amounting to approximately
5:32 pm • 1 Sept 2022 $4 million. As Price is the plaintiff, he has the burden of proof and he must prove he has
been defamed and suffered harm from the articles published by Martini Magazine.
385 Likes
However, Martini Magazine is counter-suing Price for defamation, claiming he has
published untrue statements about the level of education its reporters have on Twitter.
Figure 2 Martini Magazine is counter-suing Martini Magazine has the responsibility of proving it has been defamed and suffered
Morgan Price for defamation after his tweet harm from Price’s comments.
The standard of proof in civil law 3.2.1.3

The standard of proof refers to the strength of the evidence or the degree to which
KEY TERMS
the facts of the case must be proven. In a civil matter, the standard of proof is on the
Standard of proof the degree to which balance of probabilities, which requires the plaintiff to prove their claim is more
the facts of a case must be proven likely to be true and it is more probable that the defendant is liable.
in court.
The civil standard of proof, on the balance of probabilities, is a lower threshold
Balance of probabilities the standard
of proof in civil cases that requires the
of proof than in the criminal justice system, which is beyond reasonable doubt.
plaintiff to establish that their version This is because the consequences of breaching civil law are generally not as severe
of the facts is more likely to be correct, as a breach of criminal law. In civil law, the defendant may be required to pay
and the defendant is most likely liable. damages to the plaintiff, whilst in criminal law, the accused may be sentenced
to a term of imprisonment. As the consequences of being found guilty are often
more severe than being held liable, a higher standard of proof must be met in
criminal cases.
LEGAL CASE
CDC Clinics Pty Ltd v Daemolzekr [2022] VSCA 54

Facts
Daemolzekr went to CDC Clinics to have her tattoo removed via laser treatment.
Following the procedure, she developed scarring where the tattoo was removed and she
alleged this was caused by the clinic’s negligence. The Victorian County Court found the
scarring had been caused by the negligence of CDC Clinics. The court ordered the clinic
to pay $90,000 in damages to Daemolzekr, therefore ensuring it was held accountable
for its negligent actions. The clinic applied for leave to appeal against this decision.
Legal issue
The Supreme Court – Court of Appeal was required to determine whether the County
Image: mariakray/Shutterstock.com
Court had made an error in finding that the scarring was caused by the burns sustained
Figure 3 Daemolzekr successfully sued during the laser treatment.
CDC Clinics for negligently removing
her tattoo Continues →

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LEGAL CASE
CDC Clinics Pty Ltd v Daemolzekr [2022] VSCA 54 – Continued
4A QUESTIONS
Decision
The Supreme Court – Court of Appeal dismissed the application, finding that the clinic
was unable to demonstrate that any error had been made by the County Court in the
determination of liability.
Significance
As it was found that the scarring was caused by CDC Clinic’s laser treatment, this
ensured the clinic was held accountable for its negligent actions.
Lesson summary
• The civil justice system enables individuals, entities, or organisations that believe
their rights have been infringed to seek a remedy and restore their position. LESSON LINK
• The burden of proof lies with the plaintiff, meaning it is their responsibility You learnt about the burden and
standard of proof in 1A Key principles
to prove the facts of the case as they initiated the claim against the defendant.
of the criminal justice system.
• The standard of proof is on the balance of probabilities, which requires the
plaintiff to establish that their version of the facts is more likely to be correct,
and that the defendant is most likely liable.
4A Questions
Question 1
The civil justice system resolves disputes between individuals, corporations, or government bodies when
an infringement of rights has occurred.
A. True
B. False
Question 2
Which of the following are types of civil claims?
A. Defamation
B. Negligence
C. Kidnapping
D. Family law
E. Murder
Question 3
plaintiff defendant
The has the burden of proof in civil cases, meaning they are responsible for proving the facts of
the case.

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Question 4
If a counterclaim is filed by the defendant, the plaintiff still has the burden of proof.
4A QUESTIONS
A. True
B. False
Question 5
The standard of proof in civil cases is:
A. beyond reasonable doubt.
B. on the balance of doubt.
C. on the balance of probabilities.
Question 6
higher lower
The standard of proof in civil cases is a threshold in comparison to the standard of proof in
criminal cases.
Preparing for exams

Standard exam-style
Describe the standard of proof in civil disputes.
Beatrice was an employee of Blubes, a local blueberry farm. She commenced a civil proceeding
in the Magistrate’s’ Court against Blubes for a breach of contract.
Identify who has the burden of proof and what the standard of proof is in Beatrice’s case.
Abigail, a famous soccer player, wants to initiate a defamation claim against the newspaper company,
ProTimes, for publishing articles accusing her of using performance-enhancing drugs.
Distinguish between the burden of proof and the standard of proof, with reference to Abigail’s claim.
Imashi entered a contract to sell her motorbike to Martha. When Imashi delivered the motorbike, Martha
said she changed her mind and no longer wanted to purchase the bike. Imashi initiated a civil claim against
Martha for breaching the contract. The burden of proof rested with Martha, who had to prove the case beyond
reasonable doubt. Martha was later found liable and sentenced to a term of imprisonment.
Identify three errors in the scenario and, for each error, explain the correct civil process or procedure that
Adapted from VCAA 2020 Section A Q5

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Extended response
4A QUESTIONS
Sleek Financial is a large financial services company that initiated legal action in the Magistrates’ Court
against a customer, Hannah, who has not paid fees owed to the company. Sleek Financial wants to recover
$1,000 in fees for financial services completed in 2021. However, Hannah wishes to initiate a counterclaim
as she believes Sleek Financial has been charging her fees every year since 2012, but providing no service
for these fees, and wants to be compensated.
Question 11
Which of the following statements are correct about the burden of proof and the standard of proof in Sleek
Financial’s civil claim? (Select all that apply)
A. The burden of proof rests with Sleek Financial, although, if Hannah initiates a counterclaim against Sleek
Financial, she will have the burden of proving her counterclaims against Sleek Financial.
B. The burden of proof rests with Sleek Financial as the plaintiff, even if Hannah initiates a counterclaim.
C. Sleek Financial has to prove that Hannah owes fees to Sleek Financial that have not been paid beyond
reasonable doubt.
D. Sleek Financial must prove that it is more probable than not that Hannah owes $1000 in fees for financial
services not completed in 2021.
E. If Hannah initiates a counterclaim, she must prove that her version of the facts, that Sleek Financial has been
charging her fees every year since 2012 but providing no service for these fees, is more likely to be correct.
Referring to Sleek Financial’s claim, analyse the burden of proof and the standard of proof in the civil
justice system.

Explain how the standard of proof in a criminal case differs from the standard of proof in a civil case.
VCAA 2020 exam Section B Q1b

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4B Initiating a civil claim

• factors to consider before initiating a civil claim, including costs, limitation

of actions and enforcement issues
4A 4B
Image: j.chizhe/Shutterstock.com
When cooking dinner, do you pick

ingredients at random to see what 3.2.2.1 3.2.2.2 3.2.2.3
concoction you can make? Or do you Costs Limitation of actions Enforcement issues
think about what dish you want to eat to
determine the kinds of ingredients you need
before you start cooking? Just like how you
need to consider the type of dish you want
to make before you start cooking, there are
different factors that a potential plaintiff
should consider before initiating a civil claim.
Lesson introduction
A party that has suffered a loss due to a breach of their rights, or a breach of an
obligation owed to them by another party, may be able to pursue a civil action.
Prior to seeking compensation for their loss, a potential plaintiff should consider
a range of factors to determine whether initiating civil proceedings is an appropriate
step. This is because initiating a civil claim is not only time-consuming and expensive,
but also complex and may not result in the plaintiff receiving compensation.
$
Costs Limitation of actions Enforcement issues
Figure 1 Factors to be considered before initiating a civil claim
Costs 3.2.2.1
During a civil dispute, there are significant costs that each party must pay to resolve
KEY TERM
their legal dispute. Generally, the more complex a legal dispute and the longer it takes
Costs the amount of money, to resolve, the greater the costs to the parties. Therefore, a party commencing civil
including court fees and fees for legal action should expect to face costs from multiple sources.
representation, that has to be paid
to resolve a legal dispute.
146 Chapter 4: Key concepts of the Victorian civil justice system

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Table 1 Costs that should be considered prior to initiating a civil claim
Type of cost Explanation
4B THEORY
Fees for legal The complexity of civil proceedings may require
representation each party to employ legal representation, which
may be expensive. Legal representatives complete
a broad range of roles that significantly add to the
costs of a civil dispute.
Adverse cost orders A party planning to start legal proceedings should

consider the possibility that if unsuccessful, the court LEGAL VOCABULARY
may make an adverse cost order, adding to the financial Adverse cost orders an order by the
burden of taking legal action as a plaintiff may have to court that one party must pay for part,
pay for some or all of the defendant’s costs. In addition, or all, of another party’s legal costs.
even if successful, whilst the court may order the
defendant to pay their costs, such an award of costs may
only cover part of the plaintiff’s total legal expenses.
Mediation fees The court may order that parties attend mediation
to attempt to resolve the civil dispute, promoting
an out-of-court settlement. Generally, both parties are
required to share the costs for mediation. Therefore,
if attempts to resolve the dispute are unsuccessful,
the parties will have increased their legal expenses
despite not having resolved the case.
LESSON LINKS
Court fees The courts will charge fees throughout a civil trial, such You will learn more about mediation in
as filing fees which are charges to commence a court 5B Methods of resolving civil disputes.
proceeding, and hearing fees which are charges for each
You will learn more about costs in
day of a trial, further adding to the costs of both parties. 5K The impact of costs and time
Appealing to a higher A party seeking to appeal the outcome or damages – civil disputes.
court awarded will need to pay the filing fee in the appeal You will learn more about the need for
court, meet the costs of legal representation, along legal practitioners in a civil case in 5F
with many other fees. Legal practitioners in a civil dispute.
Limitation of actions 3.2.2.2 KEY TERM
Before a potential plaintiff initiates a civil claim, they must ensure they do so in the Limitation of actions a restriction
legal time frame for that particular dispute. This is known as the limitation of actions. on the time limit in which a plaintiff
Having a limitation period ensures that civil cases are brought to court in a timely must commence a civil action in court,
after which the plaintiff is unable
manner, and the defendant does not have to defend a civil action after a significant
to bring an action relating to the
amount of time since the alleged civil breach occurred. It also contributes to the just civil wrong against the defendant.
resolution of a case as evidence is readily available and not misplaced or forgotten
over time. As a result, the quality of evidence has usually diminished less and is more LEGAL VOCABULARY
reliable and available. Limitation period the length of time in
The Limitation of Actions Act 1958 (Vic) outlines the time frames within which a plaintiff must commence a civil
which different types of civil actions must be commenced. However, there are action in court, after which the plaintiff
is unable to bring an action relating to
circumstances in which a plaintiff can commence a civil action after the limitation
the civil wrong against the defendant.
period. For example, applications for extensions of the limitation period can be
made if the plaintiff had a disability during the relevant period. The defendant
may raise limitation of actions as a defence if they believe the plaintiff has not
LEGISLATION
commenced legal proceedings within the relevant time limit.
Limitation of Actions Act 1958 (Vic)
USEFUL TIP
The period in which an individual can file a civil claim is known as the limitation period,
whilst the limitation of actions refers to the restriction on taking a claim to court after
a specified amount of time. For example, it is correct to say an individual must file their
civil claim within the limitation period. It would be incorrect to say an individual must
file their claim within the limitation of actions.

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DEEP DIVE
Limitation of actions for different civil actions

4B THEORY
Depending on the civil action that has occurred, different limitations apply.
Table 2 Limitation period for different types of civil actions
Civil action Limitation period

Defamation One year
Negligence Six years
Breach of contract Six years
Personal injuries Three years
Action to recover land 15 years
Action to claim the personal estate of a deceased person 15 years
LEGAL CASE
CONTENT WARNING This case mentions content that is sensitive in nature, relating
to the death of a child.
Wilson v Mackay Hospital and Health Service [2021] QSC 178
Facts
In February 1999, a two-year-old toddler was sick with what appeared to be a stomach
bug. Her mother took her to Mackay Hospital which assessed the toddler and discharged
her home. The toddler’s sister, who was four years old at the time, witnessed the toddler
vomiting large volumes of fluid. The toddler was returned to Mackay Hospital where she
died on arrival, less than three hours after her initial discharge. The older girl was greatly
distressed after her sister’s death and suffered frequent panic attacks and flashbacks
up to the age of 17. She was referred to a psychologist in 2013 to address her anxiety,
PTSD, depression, and panic. The sister’s psychologist indicated in 2020 that she would
not cope with working full-time and would lose wages as a result. After hearing this, the
sister decided that she wanted to commence court proceedings to receive compensation
for her psychiatric injury.
Legal issue
As the plaintiff (the toddler’s sister) was 21 at the time of commencing proceedings,
the limitation period of three years had expired (for an injured child, the three-year time
limit starts when they turn 18 years of age). The plaintiff applied for an extension for
the limitation of actions, claiming that she had only recently learnt that she would have
a claim against Mackay Hospital for her various psychiatric injuries that prevented her
from working full time.
Decision
The court granted the plaintiff a time extension to the limitation of actions to sue the
Mackay Hospital for her psychiatric injuries.
Significance
As a result of this decision, the plaintiff was able to sue Mackay Hospital 22 years after
KEY TERM the passing of her sister for compensation as a result of her psychiatric injuries.
Enforcement issues a problem a

plaintiff may need to consider regarding
the capacity of a defendant to fulfil
their legal obligation to compensate
Enforcement issues 3.2.2.3
the plaintiff. A potential plaintiff may not initiate a civil claim if there are enforcement issues
caused by the defendant not being in a position to fulfil their legal obligations.
LEGAL VOCABULARY Therefore, prior to initiating a civil action, the plaintiff should determine the
Damages a type of remedy in which likelihood of obtaining damages enforced by the court by considering whether
monetary compensation is awarded or not the defendant will be able to, or likely to, pay this compensation.
to the plaintiff in a civil dispute
to compensate their loss caused
by a civil breach.

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In assessing whether or not the defendant is in a position to pay, the plaintiff may
LESSON LINK
consider issues such as:
You will learn more about damages
• if the defendant is bankrupt or an unemployed individual
in 6A Damages as a remedy.
4B THEORY
• if the defendant is a company, it may not have any assets with which
to pay damages to a successful plaintiff
• if the defendant is in prison or overseas, it may be difficult to enforce
the payment
• if the defendant cannot be identified or is unknown.
If there is a high chance that the defendant will not fulfil their legal obligation
to compensate the plaintiff, this may deter the plaintiff from initiating their civil
claim altogether. Therefore, failure to consider enforcement issues may result
in the plaintiff wasting their time and money by pursuing a civil claim.
The loud and broke neighbour

Hena, a law student, and Gustav, a DJ, have been neighbours in an apartment complex
for six months. Gustav is unemployed and often hosts loud parties which continue until
the early hours of the morning. Hena has asked Gustav to reduce the volume on countless
occasions but has been ignored. She has been losing sleep and is therefore slipping
behind at law school. As a result, Hena started seeing a psychologist as she has been
suffering from anxiety. Hena is considering initiating a civil claim against Gustav to seek
compensation for her anxiety, but is unsure whether this is an appropriate step.
After considering enforcement issues in this case, Hena has decided not to initiate a civil
claim against Gustav. This is because if Hena is successful, it is unlikely that Gustav will Figure 2 Hena must consider enforcement
be able to pay due to his current financial situation. Instead, Hena has temporarily moved issues before initiating a civil claim against
Gustav for his loud parties
in with one of her friends.
USEFUL TIP
An important key skill in Area of Study 2 of Unit 3 VCE Legal Studies is to ‘analyse
factors to consider when initiating a civil claim’. In your SAC or end-of-year exam,
you may be faced with a scenario and from there, identify and examine any relevant
factors (costs, limitation of actions, and enforcement issues) a potential plaintiff should
consider prior to initiating a civil claim. For example, if the scenario mentions that the
potential plaintiff is experiencing financial difficulties, high-scoring responses would
identify costs as a factor to consider due to the financial difficulties.
Lesson summary
Before initiating a civil claim, there are three main considerations a plaintiff must
put their mind to, including:
• the costs of initiating the claim, such as legal representation and court expenses
• the limitation of actions for their particular civil case, as too much time may
have passed for them to bring an action against the defendant
• enforcement issues, as it may be pointless for a plaintiff to pursue a defendant
to recover damages when it is unlikely the defendant will be able to fulfil their
legal obligations.

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4B Questions
4B QUESTIONS

Question 1
All plaintiffs should consider costs, limitation of actions, and enforcement issues prior to initiating a civil claim.
A. True
B. False
Question 2
Which of the following statements indicate that the defendant may be unable to compensate the plaintiff?
A. The defendant is bankrupt.
B. The defendant is unemployed.
C. The defendant is a Supreme Court judge.
D. The defendant is currently in jail.
Question 3
enforcement issues limitation of actions
A potential plaintiff should consider as this may indicate that the defendant is not in a position
to pay, or will unlikely pay compensation to the plaintiff.
Question 4
A plaintiff may be able to commence a civil action after the limitation of actions for the particular civil wrong
they are pursuing has expired in particular circumstances.
A. True
B. False
Question 5
costs limitation of actions
Prior to initiating a civil claim, a potential plaintiff should consider due to the various expenses
that are involved with a civil action, such as fees for legal representation. A potential plaintiff should also consider the
because this may indicate that their claim falls outside the legal time frame in which they are
allowed to initiate their civil action.

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Question 6
Which of the following statements are correct in relation to the costs involved in a civil dispute?
4B QUESTIONS
A. A party may have to pay fees for legal representation which are often high due to the complexity
of civil proceedings.
B. If the plaintiff is unsuccessful, the court is guaranteed to make an adverse cost order whereby
they will have to pay for all of the defendant’s legal costs.
C. The courts will charge fees throughout a civil trial, such as filing fees and hearing fees for each
day of a trial, further adding to the costs of both parties.
D. If the plaintiff is successful, they will still have to pay their own legal expenses as this is a rule
in civil cases.
Question 7
As initiating a civil claim is risky, time-consuming, and expensive, the suitability of initiating a civil claim
depends on the case’s specific circumstances.
A. True
B. False
Preparing for exams

Standard exam-style
Kehlani was involved in an armed robbery of a bank. She held an employee, Steven, at gunpoint and forced
him to hand over as much money as he could. Kehlani was arrested by the police at the scene. She was
charged and found guilty of various offences and is now in jail. Steve is suffering from various psychological
injuries as a result of the robbery and wants to sue Kehlani for damages.
Advise Steve on one enforcement issue he should consider before initiating this claim.
Explain one factor that should be considered before initiating a civil claim.
Leo and Kira contracted a builder to renovate their house. After the renovations were complete, Leo and Kira
noticed a number of defects. They asked the builder to fix them, but the builder refused to do so. Leo and Kira
have decided that they want to initiate a civil claim. However, they discovered that the builder had recently
moved overseas.
Explain two factors that Leo and Kira would have to consider before initiating a civil claim against the builder.
Extended response
Nyla was working for Healthy Foods, a company that manufactures and produces a range of nutritious
snacks, such as protein bars. When making protein bars, Nyla’s hand became stuck in one of the machines,
resulting in a serious injury requiring hospitalisation. She was not provided with any training or protective
equipment, despite being required to operate dangerous machinery. Nyla wants to sue Healthy Foods
as she can no longer work as a result of her injuries, but is aware that the company has been losing money
and has limited assets.

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Question 11
Which of the following statements are correct in relation to the factors that Nyla should consider before
4B QUESTIONS
initiating civil action against Healthy Foods? (Select all that apply)
A. Nyla should consider enforcement issues as the company has been losing money and has limited assets
thus may not be able to compensate Nyla.
B. Nyla should consider costs as, if she is unsuccessful, the courts are guaranteed to make an adverse cost
order, requiring Nyla to pay for Healthy Foods’ legal costs.
C. Nyla should consider costs as she may have to pay fees for legal representation to help in the civil case
against Healthy Foods.
D. Nyla should consider the limitation of actions as she may not be able to bring her civil claim to court
if it is not within the legal time frame.
Analyse two factors that Nyla should consider before initiating civil action against Healthy Foods.

Ping is a famous actress who is well known for her dangerous action scenes without a stunt double, unlike
many other actors and actresses. Some time ago, Mimi, a journalist, published an article claiming that Ping
is a liar and has a stunt double. Since the article was published, Ping has not been offered any acting work,
and has received backlash from the public.
a. Who has the burden of proof in Ping’s case and what is the standard of proof in this case? 2 MARKS
b. Explain why Ping should consider the costs and limitation of actions before initiating a proceeding
against Mimi. 4 MARKS
Adapted from VCAA sample 2018 exam Section B Q3a

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5
CHAPTER 5
The principles of justice during a civil dispute
5A The principles of justice during a civil dispute The principles of justice during a civil dispute
5B Methods of resolving civil disputes
• the purposes and appropriateness of methods used to
5C The Victorian court hierarchy and civil disputes resolve civil disputes, including mediation, conciliation
and arbitration
5D Judges, magistrates, and juries in a civil dispute
• the reasons for the Victorian court hierarchy in
5E The parties in a civil dispute determining civil disputes, including administrative
convenience and appeals
5F Legal practitioners in a civil dispute • the roles of key personnel in a civil dispute, including
5G Class actions the judge or magistrate (including the role of case
management), the jury, and the parties
5H Consumer Affairs Victoria (CAV) • the need for legal practitioners in a civil dispute
5I he Victorian Civil and Administrative Tribunal
T • the use of class actions to resolve civil disputes
(VCAT) • the purposes and appropriateness of institutions
used to resolve disputes, including Consumer Affairs
5J Resolving civil disputes in the courts Victoria, the Victorian Civil and Administrative Tribunal
5K The impact of costs and time – civil disputes and the courts
• the impact of costs and time on the ability of the civil
Image: Patrick Poendl/Shutterstock.com justice system to achieve the principles of justice during
a civil dispute.
153
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5A The principles of justice during

a civil dispute
5A 5B 5C 5D 5E 5F 5G 5H 5I 5J 5K
Image: Author/Shutterstock.com
‘If one really wishes to know how justice 3.2.3.1 3.2.3.2 3.2.3.3
is administered in a country, one does not Fairness during Equality during Access during
question the policemen, the lawyers, the a civil dispute a civil dispute a civil dispute
judges, or the protected members of the
middle class. One goes to the unprotected –
those, precisely, who need the law’s protection
most! – and listen to their testimony.’
—James Baldwin (American writer)
Lesson introduction
The Victorian civil justice system is grounded by the principles of justice, which
serve as a foundation for evaluating whether justice has been achieved in a case.
These principles embody the underlying purposes of the justice system; that the
system is available to everyone and that all individuals are treated equally and
receive fair treatment. Processes, policies, and institutions of the civil justice system
can be assessed to determine whether they uphold these principles.
Fairness during a civil dispute 3.2.3.1

The principle of fairness is central to the civil justice system as each plaintiff has
S
ES the ability to protect their civil rights before the law, and each defendant is able
FAIRN
to defend themselves against claims. The Victorian civil justice system aims to achieve
fairness through a variety of legal principles, procedures, and institutions.
Table 1 Legal principles, procedures, or institutions that achieve fairness in a civil dispute
KEY TERM Legal principle,
procedure, How it contributes to the achievement of fairness
Fairness the principle that all people
or institution
can participate in the justice system
and its processes should be impartial The burden of Given that the plaintiff is pursuing the case against the
and open. proof lies with defendant, the onus is on them to prove the facts and claims
the plaintiff against the defendant. It is not the responsibility of the
defendant to prove they are not liable, as this would be unfair.
LESSON LINK The standard The civil standard of proof, on the balance of probabilities,
You learnt about the presumption of proof is ‘on is a lower threshold of proof than in the criminal justice
of innocence, the burden of proof, the balance of system, which is beyond reasonable doubt. This is because
and the standard of proof in 4A Key probabilities’ the consequences for a defendant of a breach of civil law are
principles of the civil justice system. generally not as severe as a breach of criminal law. In civil law,
the defendant may be required to pay damages to the plaintiff,
whilst in criminal law, the defendant may be sentenced
to a term of imprisonment. As the consequences of being
found guilty are more severe than being held liable, a higher
standard of proof must be met in criminal cases.
Continues →
154 CHAPTER 5: The principles of justice during a civil dispute

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Table 1 Continued
Legal principle,
procedure, How it contributes to the achievement of fairness
5A THEORY
or institution
The defendant has The defendant has the right to defend a civil claim by raising
the opportunity to defences to disprove the plaintiff’s case. They have the
present their case opportunity to present their own evidence and witnesses
if they choose.
Alternative There are alternative dispute resolution methods for civil

methods of civil disputes, such as mediation, conciliation, and arbitration.
dispute resolution These methods are generally less costly, less time-consuming,
and can effectively resolve disputes without the need for
judicial determination.
An independent The judge and jury must be impartial and unbiased, basing their
judge and/or jury decisions solely on the facts of the case. A civil jury can be used
adjudicate civil in civil cases if requested by a party. Juries can contribute to
disputes fairness as they represent a cross-section of the community and
should therefore make a decision about liability that reflects
community values.
There are systems Reducing delays in legal proceedings can alleviate the stress
in place to reduce and anxiety experienced by the parties. Delays may be reduced
delays in a civil justice system through:
• the structure of the Victorian court hierarchy.
• the use of alternative methods of resolving civil disputes.
• the Victorian Civil and Administrative Tribunal (VCAT)
LESSON LINKS
and Consumer Affairs Victoria (CAV) which are
alternative institutions used to assist with civil disputes. You will learn about alternative dispute
resolution methods in 5B Methods
• judicial powers of case management.
of resolving civil disputes.
Remedies awarded Damages allow for the plaintiff to be compensated and returned You will learn about the Victorian
in a civil dispute back to their original position before the civil breach occurred, court hierarchy in 5C The Victorian
and injunctions can prevent a breach of rights from occurring. court hierarchy and civil disputes.
However, if the defendant does not have the capacity to pay You will learn about case management
the required damages, the plaintiff will not be adequately powers in 5D Judges, magistrates,
compensated. and juries in a civil dispute.
LEGAL CASE
Bucic v Arnej Pty Ltd [2019] VSC 330

Facts
The plaintiff, aged 49, fell 4.5 metres from a raised scaffolding bay onto a pile of bricks
while laying roof tiles. The plaintiff had a pre-existing degenerative back condition that
caused significant pain and forced him to be off work for six months in the same year as
the fall. This injury led to four surgeries and additional procedures for his back and neck.
The plaintiff also suffered from major depressive disorder with anxiety, as well as
cognitive deficits affecting memory and concentration. These injuries were permanent,
severely restricting his quality of life and causing financial difficulties.
Legal issue
The court had to assess pain and suffering, as well as economic loss, when determining
a remedy.
Decision
The court awarded specific damages of $743,000, such as for his medical expenses.
Additionally, general damages of $300,000 for pain and suffering were awarded to the
plaintiff, taking into account the significant impact of his injuries on his life.
Continues →

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LEGAL CASE
Bucic v Arnej Pty Ltd [2019] VSC 330 – Continued

5A THEORY
Significance
The money awarded to the plaintiff aimed to return him to his original position before
the civil breach. In this instance, pain and suffering are difficult to quantify, and in
severe cases, no amount of money can remedy the pain of a back injury and subsequent
mental health problems. Fairness may be called into question as money can be viewed
as inadequate in compensating for pain and suffering.
Equality during a civil dispute 3.2.3.2

EQU
The principle of equality aims to ensure uniform treatment of all individuals in the
civil justice system. However, equal treatment does not necessarily equate to equitable
ALI
outcomes. In such circumstances, appropriate actions should be taken to rectify

TY
these inequalities. In the civil justice system, the principle of equality is crucial to
preventing discrimination based on personal attributes such as age, gender, wealth,
native language, ethnicity, and religion. Victoria’s civil justice system implements
KEY TERM several legal principles and procedures to contribute to equality.
Equality the principle that all people Table 2 Legal principles, procedures, or institutions that achieve fairness in a civil dispute
engaging with the justice system and
its processes should be treated in Legal principle,
the same way. If the same treatment procedure, How it contributes to the achievement of equality
creates disparity or disadvantage, or institution
adequate measures should be Court procedures Procedures in the courts are applied in the same manner
implemented to allow all to engage
are applied equally in all civil cases, regardless of personal characteristics such
with the justice system without
to anyone engaged as age, gender, wealth, language background, ethnicity, or
disparity or disadvantage.
in a civil dispute religion. However, if a party is self-represented, the judge has
an obligation to assist them to understand the proceedings,
LEGAL VOCABULARY
in order to encourage equal footing between the parties.
Rule of law the principle that the law
applies to everyone equally regardless The rule of law All members of the community are identically held to the
of status. prevents any standards of behaviour set by civil law. For example, those
community in more powerful positions in society such as members of
members from parliament, police officers, and affluent individuals are not
being exempt from entitled to preferential treatment by the courts as a plaintiff
the law or a defendant.
An independent The judge and jury must strive to be impartial and unbiased,
judge and jury basing their decisions solely on the facts and not the
adjudicate civil characteristics of the plaintiff or the defendant. Jury members
disputes with preconceived ideas or biases about either party will
be found ineligible.
Organisational Organisations such as Victoria Legal Aid (VLA) and

support community legal centres provide extra support to individuals
LESSON LINK who do not have the resources to uphold their civil rights,
You will learn more about the role leading to more equitable outcomes. The government provides
of judges and juries in 5D Judges, funding for these organisations to provide free legal advice
magistrates, and juries in a and information, so that everyone, not just those with money,
civil dispute. has the ability to uphold their rights in the civil justice system.
Whilst equality is often associated with equal treatment for all people, it is more
accurately described as an equal result for everyone involved. Equality can be
attained by ensuring that individuals ultimately reach the same outcome, which may
require treating them differently through the use of equitable policies. Equity can
be described as the mechanisms in place to ensure those disadvantaged before the
law, such as people of colour, people with disabilities, or people with mental health
problems, are still able to reach the same result as those who are not disadvantaged
by the judicial system.

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Thus, an example of an equitable mechanism in the Victorian civil justice system is

the existence of alternate institutions used to assist with civil disputes, such as VCAT.
VCAT provides low-cost dispute resolution services, allowing people to access civil
5A THEORY
justice for a lower cost, particularly in comparison to the courts. This is an equitable
policy implemented by the government to ensure all people ultimately reach the same
legal outcome regardless of socioeconomic status.
S EQ
U
ES
AL
N
FAIR
SS
ITY
E
FAIRN
Equal treatment Equality Equitable policies
• treating everyone • equal outcomes • treating people
the same for everyone differently according
to their needs
ACC E S S
Figure 1 Understanding the relationship between equal treatment and equitable policies
Figure 2 The three principles of justice are
This approach emphasises the importance of focusing on equal results rather than all interrelated
equal treatment. In order to prevent discrimination against individuals who may
be disadvantaged, it is essential to establish mechanisms that acknowledge and LESSON LINK
accommodate inherent differences among people. These mechanisms aim to ensure
You learnt about the connections
that the law treats all individuals fairly, regardless of their personal circumstances between the three principles of justice
or disadvantages. The principle of fairness is closely linked to this idea, as fairness in An introduction to Legal Studies.
is achieved when individuals are granted access to resources that enable them
to attain equal outcomes. Consequently, access plays a vital role in ensuring equal
results, which in turn promotes fairness. It is essential to recognise that these
principles: equality, fairness, and access, are intricately interconnected.
Access during a civil dispute 3.2.3.3

The principle of access aims to ensure that everyone has the opportunity to participate
in the civil justice system and its proceedings with adequate knowledge. In the civil
justice system, access is crucial as it allows the plaintiffs to comprehend their legal
entitlements and the different steps involved in their dispute. The Victorian civil justice AC
CESS
system aims to achieve access through a range of legal principles and procedures.
Table 3 Legal principles, procedures, or institutions that achieve access in a civil dispute
KEY TERM
Legal principle,
Access the principle that all people
procedure, How it contributes to the achievement of access
should be able to engage with the
or institution
justice system and its processes
Class actions By enabling several plaintiffs to collectively bring a lawsuit to on an informed basis.
court where expenses are covered by either the lead plaintiff or
third party litigation funders, class actions promote engagement
with the legal system and empower individuals to partake in a
case that they might not have been able to afford individually.
There are systems Reducing delays in legal proceedings can alleviate the stress
in place to reduce and anxiety experienced by the parties, as well as allow
delays efficient access to the legal system.
Consumer Affairs CAV is a civil complaints body that mainly provides

Victoria (CAV) information and advice through its website, which contains
detailed guides on how consumers and businesses can seek
solutions to resolve disputes. This promotes access as all
people are able to access this information via CAV’s website.
Continues →

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Table 3 Continued
Legal principle,
procedure, How it contributes to the achievement of access
5A THEORY
or institution
The Victorian Civil VCAT promotes access to civil justice as it is able to resolve
and Administrative certain types of civil disputes at a low cost, allowing people
Tribunal (VCAT) of low socioeconomic status to engage with the justice system.
Alternate methods There are out-of-court settlement options for civil disputes
of civil dispute where the parties negotiate with an independent third party
resolution who facilitates discussion and encourages, or determines, a fair
resolution. This allows access to a just resolution in a timely
manner as these methods are often cheaper to engage in, such
LESSON LINKS as when compared with the courts.
You will learn more about class actions
Remedies awarded Damages and injunctions allow for the plaintiff to be
in 5G Class actions.
in a civil dispute compensated and returned back to their original position
You will learn more about civil dispute
before the civil breach occurred.
resolution bodies in 5H Consumer
Affairs Victoria (CAV) and 5I The However, if the defendant does not have the capacity to pay
Victorian Civil and Administrative the required damages, the plaintiff will not be adequately
Tribunal (VCAT). compensated.
You will learn more about remedies The availability Court processes can be confusing for an accused, particularly
in Chapter 6: Remedies. of translators if English is not their first language. Therefore, each court
You learnt about enforcement issues in the Victorian court hierarchy may be able to arrange
in 4B Initiating a civil claim. an interpreter for particular circumstances.
Beverley’s bad beads leads to team takedown

Beverley, a small business owner, saved up for years to start her company, a jewellery
business. However, her dream was cut short when she discovered that one of her bead
suppliers had been overcharging her for years. She did not have enough money to pursue
legal action against the supplier. However, when she discovered there was a class action
organised by a group of people who had also been overcharged by the supplier when
purchasing beads, she was able to join as a group member. The supplier was found liable
Figure 3 Beverley was able to join
a class action to gain compensation for overcharging its clients and was ordered to pay a significant amount of damages.
from a sneaky supplier Beverley was able to receive compensation and access justice through the class action.
Lesson summary
Overall, the principles of justice are an essential aspect of the Victorian civil
justice system.
• Fairness requires that all processes be impartial and open to ensure a just
outcome to a civil dispute.
• Equality requires that all individuals engaging with the justice system are
treated the same, regardless of personal characteristics such as gender or
religion. However, if the same treatment creates disparity or disadvantage,
adequate measures should be taken to prevent this.
• Access requires that all individuals should be able to engage with the justice
system with as few barriers as possible.

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5A Questions
5A QUESTIONS
Question 1
There are four principles of justice.
A. True
B. False
Question 2
Which of the following statements does not promote the achievement of fairness in the civil justice system?
A. A defendant has a right to legal representation.
B. A defendant may not understand how to present their case in the best light possible.
C. Civil disputes can be resolved using alternative methods of dispute resolution outside of the court,
involving an independent and impartial third party.
D. A plaintiff has the burden of proof.
Question 3
fairness equality
The principle of ensures that all people can participate in the justice system and its processes should
be impartial and open.
Question 4
Which of the following statements promotes the achievement of equality in the civil justice system?
A. The judge must not discriminate against either the plaintiff or the defendant based on their personal
characteristics.
B. A victim of crime contributes to the sentencing process by providing a victim impact statement.
C. All parties are equal before the law and no individual should be treated more favourably than another.
D. The jury in a civil case can consist of members that have a bias towards the plaintiff, such as if a juror
was high school enemies with the plaintiff, as this is still an accurate reflection of society.
Question 5
Class actions contribute to the achievement of access by enabling several plaintiffs to collectively bring
a lawsuit to court.
A. True
B. False
Question 6
access equality
The principle of aims to ensure uniform treatment of all individuals in the civil justice system, with the
exception of instances where it may lead to disadvantage.

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Question 7
Justice is a multifaceted concept that aims to ensure all people can have meaningful interactions with the
5A QUESTIONS
legal system.
A. True
B. False
Preparing for exams

Standard exam-style
Explain one way the civil justice system upholds the principle of fairness.
Baxter initiated a civil dispute in the courts. His case has been delayed multiple times and he is becoming
frustrated by the lack of accessibility to the justice system.
Describe two ways that Baxter could gain better access to the legal system.
Imagine that the Commonwealth Parliament introduced a new law, the Politician Exemption Act 2058 (Cth)
that allows politicians to be exempt from liability in civil proceedings.
Explain one reason why the Politician Exemption Act 2024 (Cth) may not achieve equality.
Adapted from VCAA 2022 Section B Q2b
Extended response
Question 11
Tick the box to indicate whether the following statements are strengths or limitations of the Victorian civil
justice system in achieving the principles of justice.

I. A defendant may not be able to afford legal representation which may impact their ability
to present their case in the best possible light.
II. Both parties have the ability to present their case.
III. The judge and jury must remain independent and impartial, treating both parties equally.
IV. Judges cannot assist unrepresented parties to the extent a legal practitioner can, even if they
recognise that the court proceeding is unequal.
Serena has been sued by Blair for negligence. Serena believes she does not need a lawyer and has decided
to represent herself. Once in the courtroom, she realises the judge will not provide her with special treatment
or legal advice, and she is now struggling to understand the court processes.
Discuss whether two of the principles of justice have been achieved in relation to Serena’s civil case.

Explain how enforcement issues hinder the achievement of access.

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5B Methods of resolving civil disputes

• the purposes and appropriateness of methods used to resolve civil disputes,

including mediation, conciliation and arbitration
5A 5B 5C 5D 5E 5F 5G 5H 5I 5J 5K
Image: Gatot Adri/Shutterstock.com
If two students are in a fight at school,

a teacher will typically attempt to diffuse
3.2.4.1 3.2.4.2 3.2.4.3 the conflict by discussing the situation with
Mediation Conciliation Arbitration both students until they make amends. Just
as children require mediators to facilitate
productive conversations, parties in a legal
battle may also require help from an external
party in order to reach an agreement without
entering the court system.
Lesson introduction
Whilst parties can resolve civil disputes through formal bodies, such as in the process
of judicial determination that occurs with a judge or magistrate in the courts, it is also
common for parties to use alternative dispute resolution methods. Alternative dispute
resolution methods can include mediation, conciliation, and arbitration, all of which
are less costly and formal than court proceedings. Under section 66(1) of the Civil LEGISLATION
Procedure Act 2010 (Vic), courts can refer parties to attempt mediation, conciliation,
or arbitration prior to a trial. Civil Procedure Act 2010 (Vic)
Mediation 3.2.4.1
Mediation occurs outside of formalised court settings and involves parties attempting
KEY TERM
to resolve their dispute in the presence of an independent third party. The mediator
encourages discussion between the two parties and aims to assist the parties in Mediation a non-judicial dispute
reaching a mutually-agreed resolution. The mediator does not provide information resolution method involving an
or make suggestions to the parties on what resolution they believe to be appropriate independent third party, known as a
mediator, who facilitates conversations
as they are impartial. The resolution reached in mediation is non-binding. However,
between disputing groups.
a resolution can become binding if the parties sign a deed of settlement, or if the
agreement is presented to the court and binding orders are made. LEGAL VOCABULARY
Legal representation is not often used in mediation, and the mediator ensures Deed of settlement a legal document
the negotiation is conducted in a less formal, supportive manner. The emphasis signed by parties to a dispute that states
in mediation is on reaching a voluntary agreement, rather than presenting evidence the agreed outcome of the dispute and
and establishing who is right or wrong in the dispute. is legally binding on the parties.
Judicial registrar an individual
Most commonly, mediation ordered by the court is conducted by a judicial registrar
responsible for managing both the
who is accredited by the court to mediate civil disputes under the Federal Court administrative and judicial aspects of
Mediator Accreditation Scheme (FCMAS). Parties may also choose to hire their a court proceeding, who can also act as
own external mediator, however, this is paid at the parties’ own expense. a mediator in court-ordered mediation.

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Table 1 Powers of different courts and tribunals to order mediation
The Victorian Civil and

County Court and Consumer Affairs Victoria
Magistrates’ Court Administrative Tribunal
5B THEORY
Supreme Court (CAV)

(VCAT)
Can order parties to attend Can order parties to attend Can order parties to attend –
mediation. mediation. mediation for:
• goods and services
disputes between $500
and $10,000, which are
suitable for mediation.
• if the dispute can be
resolved by mediation
instead of a VCAT hearing.
Table 2 The appropriateness of mediation
LESSON LINKS Circumstances where mediation Circumstances where mediation

is appropriate is not appropriate
You will learn more about VCAT
in 5I The Victorian Civil and • A relationship needs to be maintained • Parties are highly emotional,
Administrative Tribunal (VCAT). between the two parties, such potentially making negotiations
You will learn more about court delays as a manager and employee. more difficult.
in a civil dispute in 5K The impact • Parties are willing to discuss issues. • Parties are unwilling to discuss
of costs and time – civil disputes. • Parties prefer privacy and issues, potentially making an agreed
confidentiality and therefore, want settlement unlikely.
to resolve the dispute in a less formal • There is a power imbalance that
LEGAL VOCABULARY and publicised manner. creates a risk that one party will ‘give
• Both parties want lower legal fees, up too much’ in reaching a settlement.
Judicial determination a method
of dispute resolution whereby a judge as the court process can often • There is a history of violence or
or magistrate will make a legally be more expensive than mediation. threats between the parties. This may
binding decision after the parties • A prompt resolution needs to be cause one party to compromise out
present their cases at a trial or hearing. reached. There are often significant of fear of what may happen to them
wait times associated with if they do not cooperate.
determination of civil disputes • Parties want a binding result
via the courts. to their disputes or prefer the
formalities associated with
judicial determination.
Evaluating mediation’s ability to achieve the principles of justice
S
ES
• Mediation allows parties to control the outcome • A power imbalance between the parties may cause
FAIRN
of their dispute, as a resolution is not reached until a forced and unfair resolution to be reached.
a compromise is achieved. This can ensure parties • The decision reached through mediation is not
reach a fair outcome. legally binding, unless the parties sign a deed
• The mediator is impartial, meaning there is no bias of settlement, meaning there is a risk that a party
towards or against a party. may not follow through with the agreement.
• Mediation can promote a fair outcome as it is faster This can limit the achievement of fairness for the
than a trial and minimises delays associated with other party involved.
accessing a remedy. • Disputing parties must compromise and resolve
the dispute without the opinion of the independent
third party, which can limit fairness if one party
is unwilling to negotiate.

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EQU
• As formal rules of evidence and procedure do not • If one party is more vulnerable or there is a power
ALI
5B THEORY
apply, each party in the dispute can feel supported imbalance between the parties, a ‘forced’ outcome
TY
to speak freely and present their perspective. may be reached that does not equally benefit
• Unrepresented parties are unlikely to be both parties.
disadvantaged as the mediator guides the
discussion and there are no formal rules
of evidence and procedure to navigate.
• Legal representation is usually not required for
mediation and in many cases, a mediator will only
permit legal representation if both parties have
a lawyer. If one party cannot find a lawyer, it is
likely that both parties will need to self-represent,
promoting equality.
• Mediation is accessible as it is less costly than the • In long-running and hostile disputes, mediation
courts, making remedies easier to obtain for the may be inappropriate as parties are unlikely to
parties. Furthermore, legal representation is often constructively communicate and reach a resolution, AC
CESS
not required, minimising costs and enhancing thus limiting access to justice as the dispute may
a party’s ability to seek justice. remain unresolved.
• The public nature of a trial can prevent parties from • Given legal representation is often not used in
taking legal action if the subject of the dispute is mediation, parties may need to present their own
sensitive. As mediation is more private, it promotes cases. This may be intimidating for certain people
access to a resolution in such cases. and discourage them from pursuing mediation.
• Mediation is conducted in a more supportive, However, this limitation is usually insignificant,
non-adversarial manner compared to a trial. The given the informal and open manner in which
intimidating nature of a trial may discourage some mediation is conducted.
individuals from pursuing a case through the courts.
Therefore, mediation’s informal nature promotes
access to justice.
REAL WORLD EXAMPLE
Pulled the ‘Rugg’ right under her!

In February 2023, federal independent MP for Kooyong, Monique Ryan, was ordered by the
Federal Court of Australia to partake in court-ordered mediation. The dispute was brought
forward by Ms Sally Rugg, Ryan’s former chief of staff, who alleged that she was told her
employment would be formally terminated on 31 January 2023 after refusing to work
‘unreasonable’ hours. She sought an injunction to keep her job and pursued compensation
from the Commonwealth, as well as Dr Ryan, for their alleged breaches of the Fair Work Act
2009 (Cth). Rugg said Dr Ryan performed ‘hostile conduct’ in the work environment.
In May 2023, Rugg and Ryan reached a settlement, with Rugg receiving $100,000 to abandon
her claim, with all sides agreeing to pay their own legal costs. When the event was reported Image: Benjamin Crone/Shutterstock.com
in May 2023, it was confirmed that no deed of settlement had been signed, therefore making Figure 1 Federal MP, Monique Ryan, was
the settlement non-binding for both parties. It was also reported there was still no admission ordered by the Federal Court to engage
of fault by Ryan in relation to the accusations made by Rugg. in mediation with her former employee after
the employee claimed they were unfairly
Adapted from ‘Sally Rugg accepts $100,000 to settle workplace dispute with MP Monique Ryan’ (Karp, 2023) dismissed

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Conciliation 3.2.4.2
Conciliation can be used by parties seeking to resolve their dispute outside the courts
KEY TERM
5B THEORY
with the assistance of a conciliator. The conciliator is an independent third party

Conciliation a non-judicial dispute who possesses specialist knowledge about the subject matter of the dispute and can
resolution method involving an therefore, assist parties in reaching a resolution. The conciliator encourages the two
independent third party, known as a parties to communicate and is able to offer suggestions and resolutions, differentiating
conciliator, who possesses specialist
them from a mediator who does not provide advice. Similar to mediation, if the parties
knowledge about the type of dispute
reach a resolution, it is non-binding unless a deed of settlement is signed, which is then
in question and assists parties in a
dispute reach a resolution. enforceable by the courts. Legal representation is often not used in conciliation, and
the conciliator ensures the negotiations are conducted in a less formal environment.
Table 3 Powers of different courts and tribunals to order conciliation

LESSON LINK
Magistrates’ County Court and
You will learn more about Consumer VCAT CAV
Court Supreme Court
Affairs Victoria (CAV) in 5H Consumer
Affairs Victoria (CAV). Can order Can order Can order Utilises
parties to attend parties to attend parties to attend conciliation as its
conciliation. conciliation. compulsory primary dispute
conferences that resolution method.
use conciliation.
REAL WORLD EXAMPLE
Trains stop in their tracks over union disagreement

In November 2022, the NSW government signed a deal with the Rail, Tram, and Bus Union
(RTBU) to resolve an industrial dispute. The union argued the New Intercity Fleet (NIF),
composed of Korean-made trains imported by the NSW government, was unsafe as it
prohibited guards from checking that platforms were clear. Therefore, the main point of
dispute was whether NSW should fund the necessary repairs to improve the train’s safety.
The Union also argued that unjust pay and conditions were being provided to workers.
Ultimately, the settlement resulted in the government agreeing to pay up to $300 million
to repair the fleet.
Image: Kapi Ng/Shutterstock.com
The parties entered into conciliation to resolve the dispute, with a third-party conciliator
Figure 2 The NSW government and a train from the Fair Work Commission guiding the parties to a voluntary agreement. Reaching
union were able to reach a binding agreement
through conciliation to improve worker’s a resolution was a time-consuming process due to a variety of factors, including the RTBU
safety, conditions, and pay calling for its members to engage in disruptive practices and targeted strikes to protest
against the fleet’s implementation.
By the end of the dispute, Transport Minister, David Elliot, declared the signed deed
a win for all parties, highlighting the ability of conciliation to result in a compromise
for the parties.
Adapted from ‘NSW government, rail union sign a deal paving way for end to rail strikes’ (Tatham, 2022)
Table 4 The appropriateness of conciliation
Circumstances where conciliation Circumstances where conciliation

• A relationship needs to be maintained • Parties are highly emotional.
between parties, such as in the case • Parties are unwilling to discuss issues.
of an employer and their employee.
• There is a history of violence
• Parties are willing to discuss issues. or threats between parties.
• Parties prefer privacy and • There is a power imbalance
confidentiality. between parties.
• There is an admission of responsibility • Parties want a binding result to their
by one of the parties, potentially dispute or prefer the formalities
increasing the willingness of parties associated with judicial determination.
to negotiate.

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Evaluating conciliation’s ability to achieve the principles of justice
5B THEORY
S
ES
• Conciliation offers parties the ability to control the • There may be a power imbalance between parties
FAIRN
outcome of their dispute, promoting the likelihood that can cause a forced resolution to be reached,
of a fair outcome. limiting fairness.
• The conciliator acts as an unbiased, impartial • The decision reached through conciliation is not
opinion that favours neither party. always legally binding, meaning there is a risk that
• Conciliation is faster than a trial, it reduces the a party may fall back on the agreement.
courts’ workload, and minimises delays in cases, • There is no obligation for parties to reach
therefore promoting fairness. a resolution through conciliation, meaning more
time and money is wasted if the matter ends
up proceeding to a trial or hearing.
EQU
• Unrepresented parties are not disadvantaged, • If one party is more vulnerable or there is a power
ALI
as the conciliator guides the discussion and imbalance between parties, especially if no legal
TY
suggests solutions. representation is present, a ‘forced’ outcome
• As formal rules of evidence and procedure do not may be reached that does not equally benefit
apply, each party in the dispute can feel equally both parties.
supported to speak freely and present their
perspective.
• In many cases, a conciliator will only permit legal
representation if both parties have a lawyer. If one
person does not have a lawyer, both parties will
usually self-represent.
• Paying a conciliator is much cheaper than the • In long-running, hostile disputes, conciliation
cost of paying a court to conduct a trial. Legal may be inappropriate as parties are unlikely
representation is also rarely required for conciliation, to constructively communicate and reach AC
CESS
and if it is required, this is usually for a shorter a resolution, thus limiting access.
period of time, reducing costs. Thus, the process of • Given legal representation is often not used
conciliation is more accessible for parties than a trial. in conciliation, parties may need to present their
• The public nature of a trial can prevent parties from own cases. This may be intimidating for certain
taking legal action if the subject of the dispute is people, perhaps discouraging them from pursuing
sensitive. Conciliation is more private and, therefore a remedy. However, this is a minor limitation, given
promotes access to dispute resolution. conciliation is usually conducted in a supportive
• Conciliation is conducted in a more supportive, manner where both parties are unrepresented.
non-adversarial manner than a trial. The intimidating
nature of a trial may discourage some individuals
from pursuing a case through the courts. Therefore,
conciliation’s supportive tone promotes access
to justice by overcoming this issue.
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the ability of the civil justice system to achieve the principles of justice during a civil
dispute’. These tables showing the strengths and limitations of the Victorian court
hierarchy in relation to each principle may help you evaluate how the court hierarchy
can uphold the principles of justice.

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Arbitration 3.2.4.3
For corporations seeking to negotiate a disagreement in a setting less formal than
KEY TERM
5B THEORY
and without the strict rules of evidence and procedure of the courts, arbitration
Arbitration a non-judicial resolution is often ideal. The independent third-party arbitrator will listen to both parties
method involving an independent third present evidence before making a legally binding decision. This differs from
party, known as the arbitrator, who mediation and conciliation as the final decision is enforced by the arbitrator and
listens to parties present evidence
is binding without the parties needing to sign a deed of settlement. Arbitration
and makes a binding decision.
is the most formal alternative dispute resolution process below the courts. It is
most commonly used by parties involved in large commercial transactions that
are seeking to resolve contractual disputes outside of the courts. In some cases,
commercial contracts will specifically state that arbitration must be used to resolve
any arising disputes.
Table 5 Powers of different courts and tribunals to order arbitration
Magistrates’ County Court and

VCAT CAV
Court Supreme Court
Obliged to Can order parties Does not conduct –
refer parties to to partake in arbitration but has
arbitration if their arbitration with the power to order
civil dispute is consent from parties to attend
under $10,000. both parties. arbitration.
Table 6 The appropriateness of arbitration
Circumstances where arbitration Circumstances where arbitration

• Parties agree to participate in • Parties do not agree to arbitrate.
arbitration. This may include • Parties are comfortable navigating
the parties having a contractual complex court rules of evidence
arrangement to arbitrate disputes that and procedure.
arise during a commercial transaction.
• Parties would like greater control
• The dispute involves civil damages over the outcome of their dispute
of less than $10,000, which was resolution and do not want the result
issued in the Magistrates’ Court. decided on their behalf.
• The case requires a binding and
enforceable decision.
Building blunder!
SlayDay, a property developer, contracted RyanBuilds, a commercial construction company,
to build a large apartment tower in the CBD. The contract between these two parties included
terms, such as the date for when the construction must be paid, the quality of the materials
used, and deadlines for completing certain stages of the building. The contract also included
a clause stating that if any disputes arose between the parties, arbitration would be used
to resolve them.
RyanBuilds claims SlayDay failed to make a payment for 20% of the total fee by the date they
had previously agreed upon. SlayDay has refused to pay as it believes RyanBuilds has fallen
Figure 3 Large commercial business disputes behind the agreed upon building schedule. An independent arbitrator has now been engaged
are often resolved through arbitration to hear and resolve the dispute, without the need to initiate proceedings in the courts.

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Evaluating arbitration’s ability to achieve the principles of justice
5B THEORY
S
ES
• There are fewer delays involved in the arbitration • The rules associated with evidence are more relaxed
FAIRN
process compared to the courts, leading to a timely than the courts, which may enable an arbitrator
determination of the dispute. to consider evidence that would be inadmissible
• Parties are often able to decide on who arbitrates in a trial, potentially limiting fairness for one party.
their dispute to ensure an appropriate arbitrator • If one or both parties are unhappy with the final
is used that both parties believe is impartial. legally-binding decision, they have limited rights
• The arbitrator is an independent third party that to appeal the decision.
has no association with either disputing party, • If one party has legal representation, they may be
therefore ensuring a fair decision that is solely able to present a stronger case, therefore creating
based on law and facts is made. a power imbalance that could create an unfair
outcome if the other party is unrepresented.
EQU
• Arbitration is not bound by formal court procedures, • If one party has legal representation and the other
ALI
meaning the parties can agree on the process does not, this can create a power imbalance and
TY
themselves, including when they will meet and the unrepresented party may not fully understand
in what order they will speak. Consequently, the proceedings of arbitration, creating inequality
arbitration is a relatively flexible process that between the parties.
supports each party to freely represent themselves. • The lack of publicity of the arbitration process
• If one party is self-representing during arbitration, means that outcomes of previously arbitrated
the arbitrator will typically assist this party to disputes are difficult to access or are unknown.
ensure they understand the issues of the dispute Therefore, consistency and equality across similar
and the arbitration process. arbitration cases may be limited. Arbitrators do not
base their decisions on established precedent,
as judges do, but rather on their personal perception
of how the dispute should be resolved based on the
case presented.
• Arbitration is not bound by formal court procedures, • Arbitration is often more expensive than mediation
meaning the process is more accessible to parties and conciliation, which may prevent parties with
due to its flexibility, efficiency, and less intimidating limited financial means from pursuing arbitration AC
CESS
procedures than a trial. as a viable dispute resolution method.
• The arbitration process cannot be viewed publicly
and those involved cannot disclose information,
therefore encouraging the use of arbitration in
sensitive cases.
Lesson summary
For various reasons, it may be optimal for parties to a civil dispute to use alternative
LESSON LINK
forms of dispute resolution when trying to resolve their issues, as opposed to initiating
a claim via the courts. Generally, alternative methods of resolving civil disputes are You will learn more about precedent
appropriate when parties: in 8B The doctrine of precedent.
• want a more informal, less costly, and less time-consuming method of resolving
their dispute.
• want greater privacy and confidentiality when resolving their dispute.

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Table 7 A comparison of mediation, conciliation, and arbitration
Mediation Conciliation Arbitration

5B THEORY
Third party Mediator Conciliator Arbitrator

name
Third party Facilitates discussions Facilitates Listens to the
role but does not provide discussions, has evidence from parties
their own suggestions specific knowledge and hands down a
or opinions on about the subject binding decision.
the dispute. matter, and makes
suggestions about
possible resolutions
to the dispute.
Decision- Parties Parties Arbitrator

maker
Resolution Not binding Not binding Legally-binding.
(unless a deed of (unless a deed of
settlement is signed settlement is signed
or a court order with or a court order with
party consent is party consent is
established). established).
Use by the The Magistrates’, The Magistrates’, The Magistrates’

courts County, and County, and Court must send
Supreme Courts Supreme Courts parties to attend
all have the power all have the power arbitration for
to order parties to to order parties to civil disputes
attend mediation as attend conciliation, under $10,000.
a pre-trial procedure but more commonly
The County and
or during the trial. direct parties to
Supreme Courts
attempt mediation.
can order parties to
attend arbitration.
Use by VCAT has the power VCAT can order VCAT does not
VCAT to order parties parties to attend conduct arbitration
to attend mediation. compulsory but has the power
conferences that use to order parties
conciliation. to attend arbitration.
Use by CAV – CAV can direct –

parties to attend
conciliation and
use this as their
primary dispute
resolution method.
USEFUL TIP
When discussing methods of dispute resolution in previous exams, a number of common
mistakes arise. In the 2016 VCAA Legal Studies Examination Report, some common
misconceptions regarding mediation and arbitration were highlighted, including that:
• mediation is not always inappropriate in hostile cases.
• whilst mediation does not result in a formal, legally-binding court order, it is
common for parties to sign a deed of settlement once an agreement is reached.
• arbitration is often not automatically available to parties to a civil dispute. Rather,
it tends to be mainly used in commercial disputes where parties have agreed
by contract to resolve disputes via arbitration, or in small claims made in the
Magistrates’ Court.

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5B Questions
5B QUESTIONS
Question 1
Alternative forms of resolving civil disputes, such as mediation, arbitration, and conciliation,
may be optimal where:
A. parties involved want more privacy, confidentiality, and are seeking a lower cost alternative to the courts.
B. parties are unwilling to compromise or see each other in person due to hostilities.
Question 2
In arbitration, the independent third party facilitates discussions and suggests ideas to help parties reach
an agreement regarding their dispute, but has no involvement in making the final decision about the dispute.
A. True
B. False
Question 3
access equality
Arbitration limits the principle of justice of from being achieved as parties may have to self-represent,
therefore the two parties may be on unequal footing and the unrepresented party is likely to be disadvantaged.
Question 4
Tick the box to indicate whether each of the following statements are characteristics of mediation
or arbitration.
Statement Mediation Arbitration

I. A binding agreement is determined by an independent third party.
II. The resolution of the dispute is only binding to parties if a deed of settlement is produced or
the court makes orders with the consent of the parties, otherwise, the outcome is non-binding.
III. This method of dispute resultion often occurs between corporations that may have a clause in
their business contract establishing that any arising disputes should be resolved by this method.
Question 5
Which of the following statements is correct about mediation? (Select all that apply)
A. This alternative dispute resolution process is ideal when parties involved in the dispute are unwilling
to discuss issues, thus requiring a third party to guide the conversation.
B. Privacy and confidentiality is preserved when parties utilise mediation as the public nature of the courts
is avoided.
C. VCAT has the power to order parties to attend mediation, however, the courts do not have such power
and can only suggest this as an option to resolve their dispute.
D. Legal representation is often not used in mediation, so parties usually self-represent.
Question 6
An advantage of mediation is that:
A. it is far cheaper to pay for a mediator than it is to pay a court to conduct a trial, therefore increasing
access to justice.
B. it is the most formal method of dispute resolution, outside of judicial procedures, so the parties are
guaranteed a resolution will be reached.

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Question 7
Conciliation is a form of dispute resolution for civil matters in which:
5B QUESTIONS
A. the independent third party can offer suggestions and solutions to the dispute between the two
parties, and encourages communication between both sides of the issue.
B. the independent third party facilitates communication between the parties yet does not provide
information or suggestions as to how the parties can resolve their dispute.
Question 8
Conciliation would be an appropriate method of resolving civil disputes when:
A. parties are willing to discuss their issues.
B. parties want privacy and confidentiality as they work to resolve their issues.
C. parties are highly emotional.
D. there is a power imbalance between the two parties.
Question 9
Which of the following statements is correct about conciliation?
A. An enforceable decision is made by the disputing parties in all cases.
B. The third-party will ensure both parties are heard when discussing possible solutions to the dispute.
C. It upholds the principle of access by being a low-cost alternative to a trial as a method to resolve
a dispute.
D. The third party can recommend possible solutions to the parties, who ultimately reach an agreement
themselves to resolve the case.
Question 10
The only way to officially resolve a civil dispute is to attend a court hearing as other forms of dispute
resolution, such as mediation and arbitration, cannot produce a resolution to an issue.
A. True
B. False
Preparing for exams

Standard exam-style
‘Not all civil disputes should be resolved in courts; at times, it may be better for parties to come
to a compromise regarding their dispute, as opposed to a judge making the final determination.’
Explain one method that could be ordered by the courts to resolve a civil dispute.
Compare conciliation and arbitration as civil dispute resolution methods.
Describe how alternative methods of resolving civil disputes enhance the ability of the civil justice system
to achieve fairness and access.

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Extended response
5B QUESTIONS
Daniel asked his landlord to investigate a leak in his bathroom several times, over the phone and in writing,
but nothing was done. One night, he was sitting downstairs in his lounge room, when suddenly his bath
crashed through his roof from upstairs. Fortunately, no one was injured, but Daniel wishes to obtain
compensation for his damaged television, which the bath fell onto, the cost of accommodation in a nearby
hotel whilst his house is repaired, and the general shock caused by the falling bathtub.
Question 14
Which of the following statements are correct about why it is appropriate for Daniel to use conciliation
as a dispute resolution method? (Select all that apply)
A. Daniel and his landlord must both be willing to cooperate in this dispute in order to reach an agreement,
without judicial determination.
B. A third party could help Daniel and the landlord by suggesting ways of reaching a mutually-agreeable solution.
C. Consumer Affairs Victoria (CAV) could assist conciliation as long as both parties agree to participate and
the issue is within their jurisdiction.
D. The decision is not binding unless certain arrangements are made, such as a deed of settlement.
Therefore, the landlord may agree to pay compensation but then go back on his word without facing
any consequences.
With reference to the scenario, evaluate conciliation as a dispute resolution method.
Question 16
Tick the box to indicate whether the following statements are strengths or limitations of mediation.

I. Mediation is more informal than arbitration and thus, can be less intimidating for parties, which
may allow them to openly express their honest feelings on the dispute.
II. Mediation is not binding if parties do not consent to creating a formalised agreement, therefore
the resolution reached may not be maintained, making the process redundant.
III. Mediation provides parties with more control over the outcome of the dispute and the evidence
shared during the process, which can allow amicable feelings to remain between parties,
helping maintain their relationship.
IV. Mediation can be inappropriate in cases where there was domestic violence between parties
of the dispute, as the perpetrating party may be in a position of higher power, potentially
leading the victim to compromise out of fear.
‘Mediation is a more effective method of dispute resolution as opposed to more formal methods,
such as arbitration.’
Discuss this statement.

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5B QUESTIONS
Use your answer to question 18 to support your response question 19.
Winter recently purchased his first house in Australia and was looking to renovate it. He decided to hire
‘Summer’s Shacks’ for the renovations. Summer, the owner, failed to complete the job correctly, resulting
in the roof caving in and injuring Winter. Winter’s physical injuries prohibited him from working for the
past six months and he has accumulated $20,000 worth of medical bills.
Winter is now considering taking civil action against ‘Summer Shacks’ for the loss and injury that has
occurred. ‘Summer Shacks’ has ceased operations since the incident, and Summer may be forced to file
for bankruptcy. She is also now unemployed.
Question 18
Tick the box to indicate whether each of the following statements are true or false about factors
Winter should consider before initiating a civil claim.

I. Winter would need to consider costs, as, if he takes the civil claim to court, it will be cheaper
than using alternative methods of civil dispute resolution.
II. By engaging in forms of alternative methods of dispute resolution, such as mediation, both
parties can express their feelings about the issue and can establish a compromise.
III. Winter would not need to consider enforcement issues as it is clear that Summer is in a stable
financial position to award Winter any damages if he is successful in his claim against her.
IV. The cost of hiring a conciliator is often significantly less expensive than a court proceeding.
Identify two factors Winter would have to consider before initiating a civil claim against Summer. With reference
to these factors, explain why Winter may choose to utilise an alternative dispute resolution method, as opposed
to going to court.
Adapted from VCAA 2021 Section B Q2b

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5C The Victorian court hierarchy

and civil disputes
• the reasons for the Victorian court hierarchy in determining civil disputes,
including administrative convenience and appeals
5A 5B 5C 5D 5E 5F 5G 5H 5I 5J 5K Image: Monkey Business Images/Shutterstock.com
In a school, each person is structured into

a hierarchy based on their role. The students
are lowest in the hierarchy and therefore
3.2.5.1 3.2.5.2 3.2.5.3 do not handle complex issues facing the
The Victorian court Administrative convenience Appeals school. Alternatively, the principal is the
hierarchy – civil jurisdictions highest in the hierarchy and has greater
control over serious matters. This is for
good reason. Prep students cannot manage
a school budget and office staff do not
need to relearn their times tables. A similar
concept applies to the Victorian courts.
Lesson introduction
The Victorian courts are organised into a hierarchy where some courts are superior
to others. Courts are ranked on their legal authority to hear different disputes,
which aids in ensuring an effective civil justice system. Broadly, the lower courts
deal with a high volume of less serious matters, while superior courts resolve fewer,
but increasingly complex and serious disputes.
The Victorian court hierarchy

– civil jurisdictions 3.2.5.1
Most superior High Court of Australia KEY TERM
Supreme Court – Court of Appeal Court hierarchy the arrangement

Court House of courts in order of superiority.
County Court LEGAL VOCABULARY

Jurisdiction the legal power of a court
or other authority to make decisions.
Figure 1 The Victorian courts are arranged in a hierarchy that determines each court’s jurisdiction Original jurisdiction the legal power
of a court or other authority to hear
The Victorian court hierarchy refers to the organisation of courts from least a case for the first time.
to most superior. Victorian legislation determines which disputes are resolved
Appellate jurisdiction the legal power
in each court, and the hierarchical organisation of the courts results in each court of a court to review a decision of a
having its own jurisdiction. Some courts, such as the Magistrates’ Court, only have lower court or tribunal on appeal.
original jurisdiction, meaning they only have the legal authority to hear a dispute
the first time it is brought to court. Other courts, such as the Supreme Court – Court
of Appeal, only have appellate jurisdiction meaning they have the legal authority LESSON LINKS
to hear a dispute on appeal. The High Court only hears appeals in limited
You will learn about the Victorian
circumstances, such as cases involving constitutional or federal law issues. In most
Civil and Administrative Tribunal
disputes, appeals from the lower courts will be heard in the Court of Appeal. in 5I The Victorian Civil and
Administrative Tribunal (VCAT).
You will learn about class actions in
5G Class actions.

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Table 1 The civil jurisdictions of the Victorian courts
Civil original Civil appellate Examples of

Court
jurisdiction jurisdiction civil disputes
5C THEORY
Magistrates’ Civil claims N/A Debt claims

Court under $100,000
County Court Unlimited N/A Workplace injury
LEGAL VOCABULARY Supreme Court Unlimited Appeals from VCAT Class actions
– Trial Division and Magistrates’
Question of law an issue of law that
Court on a
is resolved by a judge, often concerning
question of law
the interpretation and application
of legal principles or legislation. Supreme Court N/A Appeals from VCAT Appeals from
– Court of Appeal (case heard by the the County and
VCAT President Supreme Court
or Vice president) – Trial Division
on a question of law
The High Court N/A With permission, Appeals from the

of Australia appeals from the Supreme Court
– Court of Appeal
Administrative convenience 3.2.5.2

The arrangement of the courts in the Victorian court hierarchy enables
KEY TERM
administrative convenience to be achieved.
Administrative convenience the • The superior courts, such as the Supreme Courts, are free to devote time and resources
systematic benefit derived from legal to long, complex disputes as the court is not delayed by resolving minor disputes.
matters being distributed amongst the
• The lower courts, such as the Magistrates’ Court, can quickly resolve a large number
courts according to their complexity
of relatively minor disputes, minimising delays for parties to such disputes.
and severity.
DEEP DIVE
LESSON LINK
Administrative convenience
You learnt about specialisation in
In the last quarter of 2022, the Magistrates’ Court finalised 14,526 disputes and the
Supreme Court finalised 1,390 cases. Similarly, the Magistrates’ Court currently has 123
criminal cases.
magistrates in Victoria and both divisions of the Supreme Court have 29 judges in total.
This demonstrates administrative convenience in action whereby the Supreme Court has
more time devoted to longer and more complex disputes while the Magistrates’ Court
resolves a larger volume of minor disputes. The resources of each court are divided
in a way that caters for the volume of cases they hear.
Adapted from ‘Courts and VCAT Caseload Data’ (Court Services Victoria, 2023)
USEFUL TIP
It is important to remember that specialisation and administrative convenience are not
the same thing.
• Specialisation refers to the expertise that the courts develop in hearing certain,
similar cases repeatedly.
• Administrative convenience refers to the ability of the courts to distribute resources
more effectively by organising disputes according to how serious or complex they are.
• When discussing the reasons for the court hierarchy in civil cases in a SAC or VCAA
exam, specialisation is not required. In turn, administrative convenience is not required
when discussing the court hierarchy in criminal cases.
174 Chapter 5: The principles of justice during a civil dispute

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Appeals 3.2.5.3
An appeal is a legal avenue available for an unsatisfied party, allowing them to seek
KEY TERM
5C THEORY
a review of a court’s decision by a superior court. A party dissatisfied with the outcome
of a civil dispute is not automatically entitled to have the decision reviewed on appeal. Appeal a legal process that
Rather, they must be granted leave to appeal, the permission to appeal a case, and have a dissatisfied party may pursue
legal grounds for doing so. to have the court’s decision reviewed
by a higher court.
Grounds for an appeal include:
• questions of law LEGAL VOCABULARY
• questions of fact Question of fact an issue within a case

whereby the material facts of the case
• the remedy awarded. need to be determined by weighing
The High Court of Australia can hear appeals from the decisions of the Supreme up the credibility of the evidence.
Court – Court of Appeal due to its position in the Victorian court hierarchy.
However, parties dissatisfied with the decision of the Court of Appeal do not have
an automatic right to appeal to the High Court. The High Court will only grant
permission to hear civil appeals if:
• there is a question of law of public importance.
• there are differing opinions on the law and it requires clarification.
Turning the wheels of justice: Risa’s appeal triumph

USEFUL TIP
Risa was involved in a car accident caused by the negligence of another driver, resulting
An important key skill in Area of Study
in significant injuries and high medical bills. Seeking justice, Risa filed a civil lawsuit
against the responsible party, hoping to receive compensation for her medical expenses.
‘evaluate the ability of the civil justice
The case was initially heard in the Magistrates’ Court, where the magistrate ruled in system to achieve the principles
favour of the defendant. Disheartened but determined, Risa decided to exercise her of justice during a civil dispute’.
right to appeal the decision. These tables showing the strengths
The appellate court carefully reviewed the case, acknowledging the errors made in the and limitations of the Victorian court
previous judgment. Recognising the significant impact of the defendant’s negligence on hierarchy in relation to each principle
Risa’s life, it overturned the lower court’s decision. The appellate court not only granted may help you evaluate how the court
her the compensation she deserved for her medical expenses but also set a precedent hierarchy can uphold the principles
that would help protect future victims of negligence. of justice.
Evaluating the Victorian court hierarchy’s ability to achieve the principles of justice during a civil dispute
S
ES
• In theory, appeals are available to everyone. • The party seeking to appeal must bear the cost
FAIRN
All parties have the same opportunity to appeal of the application and legal fees. Some dissatisfied
a court’s decision provided they have legal grounds parties may be unable to afford to lodge an
to do so. This ensures any errors are corrected, appeal, despite qualifying for an appeal, meaning
which is fair. incorrect decisions are not corrected, leading to an
• The administrative convenience achieved unfair result.
by separating disputes across the hierarchy • There are still many delays, despite the
minimises delays. The hierarchy being organised arrangement of the hierarchy, causing court
in this way therefore promotes fair treatment backlogs, which is not fair.
of the parties by avoiding prolonged stress.
EQU
• Each dispute is heard in the appropriate court • An appeal may not be available to some parties
ALI
and similar disputes are resolved in the same if they can not afford the cost of application
TY
way within a given court. This contributes to and additional legal fees. This limits equality
equality, as all people are treated the same despite if particular legal processes are not available
characteristic differences. to those of a low socioeconomic status.

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• Parties automatically have access to the correct • The party initiating an appeal is responsible
5C THEORY
court for their matter. The courts in the Victorian for covering the expenses associated with the
AC hierarchy publicise the range of disputes within application and legal fees, thereby restricting
CESS
their jurisdiction on their websites, assisting accessibility to those of a low socioeconomic status.
plaintiffs to understand which court to commence • Grounds for appeal must exist and leave to appeal
proceedings in. may be necessary. This may render some cases
• The court hierarchy promotes transparency and ineligible for a review by a higher court, meaning
accountability in the legal system, as decisions access to appeals can be limited.
are published and subject to review and scrutiny
by higher courts. This promotes access as past
legal decisions are available to review allowing
for predictability.
Lesson summary
• The Victorian hierarchy contributes to the principles of justice being achieved
as the structure of the courts from most to least superior allows administrative
convenience to be achieved, and appeals to be heard.
• Administrative convenience results in the civil justice system in Victoria being
more efficient, whilst appeals help dissatisfied parties seek the review of decisions.
High Court
Appellate jurisdiction: Appeals from the Court of Appeal

Original jurisdiction: N/A
Appellate jurisdiction: County and Supreme Court – questions
of law, fact or amount of damages, with
leave; appeals from VCAT (cases heard by
the VCAT President or Vice president) on a
question of law

Appeal
Original jurisdiction: Claims for unlimited amounts (in practice,
civil claims greater than $100,000)
Appellate jurisdiction: Appeals from VCAT and Magistrates’
Court – questions of law
County Court
Appeal
Original jurisdiction: Claims for unlimited amounts (in practice,

civil claims greater than $100,000)
Appellate jurisdiction: N/A
Magistrates’ Court
Original jurisdiction: Claims up to $100,000
Appellate jurisdiction: N/A
Figure 2 Different courts in the Victorian hierarchy have different jurisdictions to hear certain
civil matters

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5C Questions
5C QUESTIONS
Question 1
The existence of a court hierarchy means each court in Victoria is ranked based on its legal authority to hear
different disputes, which aids in ensuring an effective civil justice system.
A. True
B. False
Question 2
The Magistrates’ and County Courts have no appellate jurisdiction for civil disputes.
A. True
B. False
Question 3
dissatisfied appeal higher
A/an is the legal process that a/an party may pursue to have a court’s decision
reviewed by a/an court.
Question 4
The concept of administrative convenience refers to:
A. the ability of lower courts to deal with a high volume of less serious matters, whilst the superior courts
resolve relatively fewer disputes that are more complex and serious.
B. a higher court being able to review the original decision of a lower court.
C. the courts developing expertise by hearing similar cases.
Question 5
As a result of the concept of administrative convenience, the Supreme Courts can:
A. quickly resolve a large number of relatively minor disputes, minimising delays.
B. spend more time resolving complex disputes and sometimes minor disputes if the Magistrates ask for help.
C. can devote time and resources to long, complex disputes without the court being ‘clogged up’ by also
resolving minor disputes.
Question 6
Which principle of justice is hindered by the cost of an appeal case?
A. Fairness.
B. Equality.
C. Access.
D. All of the above.
Question 7
An appellate jurisdiction refers to:
A. the legal authority for a court to hear a case the first time.
B. the legal authority for a court to hear a civil case.
C. the legal authority for a court to hear a case on appeal.

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Question 8
There are no flaws to the Victorian hierarchy as its presence allows for appeals and ensures administrative
5C QUESTIONS
convenience, upholding all principles of justice.

A. True
B. False
Preparing for exams

Standard exam-style
Other than administrative convenience, explain one reason why a court hierarchy is beneficial.
Adapted from VCAA 2017 exam Q1c
Referring to administrative convenience, explain why there is a court hierarchy in the Victorian civil justice system.
Referring to one principle of justice, justify one reason for the Victorian court hierarchy in the civil
justice system.
Alessio has suffered a workplace injury and is suing their employer for negligence. They are seeking $10,000
in damages. As a result of their injury, Alessio has been unable to work and has accumulated a large sum
of medical bills.
Due to COVID-19, the court system has experienced a significant backlog of cases with 45,000 civil cases still
waiting to be heard by the Victorian court system. Alessio is running out of money and is hoping their dispute
can be resolved quickly.
a. Identify which court would most likely hear Alessio’s dispute. 1 MARK
b. Describe one reason for the existence of a court hierarchy. Refer to Alessio’s dispute in your answer. 3 MARKS
Aliza has lost a debt claim case in the Magistrates’ Court and wishes to appeal the decision.
Identify which court would hear Aliza’s appeal and outline the grounds on which the appeal could be made.
Jimmy and Johnno are in a civil dispute over property damage. Johnno is suing Jimmy for $50,000 in property
damage and claims that the dispute will be heard in the Supreme Court – Trial Division. Jimmy believes that, even
if he is found liable, he can automatically appeal the decision and have the decision reviewed in the High Court.
Identify three errors in the scenario above and, for each error, explain a correction should be made.

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Extended response
5C QUESTIONS
Question 15
Tick the box to indicate whether the following statements refer to how fairness is achieved or limited by the
Victorian court hierarchy in relation to civil disputes.
Statement Achieved Limited

I. All parties have the same opportunity to appeal a court’s decision provided they have legal
grounds to do so. This ensures any errors are corrected, which is fair.
II. The administrative convenience achieved by separating disputes across the hierarchy
minimises delays. The hierarchy being organised in this way therefore promotes fair treatment
of the parties by avoiding prolonged stress.
III. The party seeking to appeal must bear the cost of the application and legal fees. Some
dissatisfied parties may be unable to afford to lodge an appeal, despite qualifying for an appeal,
meaning incorrect decisions are not corrected, leading to an unfair result.
Discuss the ability of the Victorian civil court hierarchy to achieve the principle of fairness.

Explain how alternative methods of dispute resolution take the pressure off the court hierarchy.

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5D Judges, magistrates, and juries

in a civil dispute
• the roles of key personnel in a civil dispute, including the judge or magistrate
(including the role of case management), the jury, and the parties
5A 5B 5C 5D 5E 5F 5G 5H 5I 5J 5K
Image: Pixel B/Shutterstock.com
The civil justice system is like a machine.

In order for the machine to run smoothly, 3.2.6.1 3.2.6.2
each part needs to be performing its The role of the judge or The role of the jury
role correctly. For a civil hearing or trial magistrate in a civil dispute in a civil dispute
to be conducted effectively, the judge
or magistrate, the jury, and the parties 3.2.6.1.1 T
he difference between 3.2.6.2.1 A
comparison of the role
the judge and the magistrate of juries in criminal and
involved in the dispute must all adequately
civil cases
perform their specific functions, whilst 3.2.6.1.2 Case management powers
striving for fairness, equality, and access. 3.2.6.1.3 A
comparison of the role
of judges and magistrates
in criminal and civil cases
Lesson introduction
Although the vast majority of civil claims in Victoria are settled out of court, the
courts are still an effective body for dispute resolution in some circumstances. For
cases that do require a hearing or a trial, the key personnel in the case have specific
roles to fulfil to ensure an efficient and effective civil proceeding. Specifically, judges,
magistrates, and juries must all uphold their respective roles to promote the
achievement of justice.
The role of the judge or magistrate

in a civil dispute 3.2.6.1
The judge is the umpire of a courtroom overseeing all personnel and evidence, whilst
KEY TERMS
upholding rules and procedures. A judge will usually have extensive experience as a
Judge an independent authority solicitor or barrister before becoming a judge. In the Magistrates’ Court, the umpire
who presides over a trial, ensuring that presides over a hearing is known as the magistrate.
procedural fairness by overseeing all
personnel and evidence. Table 1 Titles given to judges and magistrates
Magistrate an independent authority
Court Judge or magistrate’s title Example
who presides over hearings in the
Magistrates’ Court for less serious Magistrates’ Court Magistrate Magistrate Foster
matters such as summary offences,
County Court Judge Judge Clark
committal proceedings, and some
civil disputes. Supreme Court Justice Justice Hollingworth
LEGAL VOCABULARY High Court of Australia Justice Justice Kiefel

Justice a judge in a relatively superior
court in the hierarchy, such as in the
Supreme Court of Victoria or the High
Court of Australia.

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Table 2 The role of the judge or magistrate in a civil dispute
Role Explanation LESSON LINK
5D THEORY
Case management Prior to a trial or hearing, a judge or magistrate actively manages You learnt about judges and magistrates
a dispute to ensure the efficient and effective use of resources in 2E Judges, magistrates, and juries
in reaching a resolution. This can involve directions to parties in a criminal case.
to complete a range of pre-trial procedures.
Manage the trial A judge or magistrate will ensure the proceedings of the trial or
or hearing hearing operates efficiently and is an effective use of resources.
This can involve judges using their powers to control how
evidence is presented and whether it is in oral or written format.
A judge can improve the efficiency of a trial by:

• ensuring correct procedures are followed.
• monitoring and adjusting the processes of a trial
as appropriate.
• limiting the number of witnesses or topics for which
a witness may be questioned on.
• limiting examination-in-chief, cross-examination time,
and re-examination.
Apply the rules Judges are required to make rulings relating to evidence and
of evidence and procedure, such as:
procedures • ensuring only admissible evidence is presented in court.
LEGAL VOCABULARY
• ensuring witnesses are examined and cross-examined
lawfully. Admissible evidence evidence that
• giving directions on how evidence is to be presented and
is, therefore, allowed to be presented
what documents the jury is permitted to see. to the court.
• providing clarity on the rules of evidence and procedure.
Direct the jury A judge will instruct the jury on their role in a civil trial, if one
( judge only) is used. They will direct the jury by explaining who has the onus
to meet the standard of proof. Prior to their deliberations, the
judge may also summarise the evidence presented during the
trial for the jury. This does not apply in the Magistrates’ Court,
as juries are never used in this court.
Remain unbiased A judge or magistrate must remain impartial throughout the

entire proceeding. They must not favour either party and will act
as an umpire of the courtroom to oversee the case and ensure
it is conducted fairly.
Determine the In the absence of a jury, the judge must determine whether
liability of the plaintiff has proven, on the balance of probabilities, that
a defendant the defendant caused their injury or loss.
(magistrates and LESSON LINKS
In most County Court and Supreme Court cases, the judge
sometimes judges) You will learn about remedies in
will determine liability as a jury is rarely used.
Chapter 6: Remedies.
In the Magistrates’ Court, the magistrate will always decide
You learnt about the Victorian civil
liability, as juries are never used. court hierarchy in 5C The Victorian
Award remedies The judge or magistrate has the responsibility of ordering court hierarchy and civil disputes.
the appropriate remedy once a verdict is determined for You learnt about the standard of proof
the wronged party. This can be in the form of damages, in 4A Key principles of the Victorian
an injunction, and/or other remedies. civil justice system.

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The difference between the judge

and the magistrate 3.2.6.1.1
5D THEORY
Judges and magistrates in Victoria share similar roles, however, given they must hear
and determine different civil disputes, the functions they serve slightly differ to ensure
justice can be served to the community in an effective and efficient manner.
Table 3 The differences between a judge and a magistrate in a civil dispute
Judge Magistrate
Court Judges are appointed to the Magistrates, on the other
higher courts of Victoria, hand, preside over the lower
such as the Supreme Court courts in Victoria, such as
Court House and the County Court. Their the Magistrates’ Court and
appointment is determined the Children’s Court. They
by considering their are appointed based on their
expertise and understanding experience and knowledge
of the law. of the law.
Types of disputes Judges deal with more Magistrates deal with

serious civil claims, where less serious civil claims as
parties are seeking a large the Magistrates’ Court’s
amount of damages. jurisdiction only covers cases
where the plaintiff is seeking
between $10,000 to $100,000.
For claims below $10,000,
a magistrate will generally
refer the parties to arbitration.
Award remedies Judges have more discretion Magistrates are bound

than magistrates when it by precedent as they are
comes to awarding remedies. in the lowest court and
$
Judges are expected to have minimal discretion
exercise their judgement and when it comes to awarding
discretion in accordance with remedies. They must
the law and legal precedent. follow the statutory
restrictions on damages as
However, if the parties
well as the decisions from
request a jury, the jury
previous courts.
may determine the amount
in damages.
Jury directions Juries are rare in civil There is no jury in the

LEGAL VOCABULARY proceedings, so in most Magistrates’ Court, thus the
Verdict a decision made by the jury cases the judges decide the magistrate does not need
regarding the guilt or liability of a party. verdict and remedy. When to direct a jury and instead
a jury is present, judges must determines both the verdict
direct the jury and ensure and the remedy.
they understand the law
and evidence presented. The
judge does not decide the
verdict when there is a jury.
WANT TO KNOW MORE?

Magistrates also determine cases in other courts, such as the Childrens Court. You can
find out more about the difference between the judge and the magistrate by searching
‘An introduction to the Victorian courts’ and clicking on the ‘Victorian Government
Solicitor’s Office’ (2020) webpage.

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Case management powers 3.2.6.1.2

Judges and magistrates in civil cases have pre-trial case management powers that
KEY TERM
5D THEORY
allow them to give orders and directions about the proceedings, such as ordering the
parties to mediation, with the aim of ensuring justice is delivered efficiently. Under the Case management powers the ability
Civil Procedure Act 2010 (Vic), a judge or magistrate has the power to make orders and of a judge or magistrate to make orders
actively intervene in how parties conduct their disputes prior to, and during, a trial. and provide directions to the parties
about the proceedings, with the aim of
A judge or magistrate will make directions with the goal of resolving the dispute in
ensuring justice is delivered efficiently.
the most efficient and cost-effective manner. The overarching obligations outlined
in the Civil Procedure Act 2010 (Vic) are ‘to facilitate the just, efficient, timely, and
cost-effective resolution of the real issues in dispute’.
LEGISLATION
If a party does not comply with a judge’s directions over the course of a civil matter,
Civil Procedure Act 2010 (Vic)
the court may:
• dismiss the plaintiff’s claim.
• dismiss the defendant’s defence, and find in favour of the plaintiff.
• reject any evidence the party wishes to present to the court.
• direct one party to pay part/all of the other party’s costs (an adverse cost order).
Table 4 Judicial powers of case management
Case management
Explanation
power
Direct parties to Directions hearings allow a court to take an active role in the
attend directions LEGAL VOCABULARY
conduct of proceedings. The function of a directions hearing
hearings is to establish a timeframe for the proceeding and includes Directions hearing the preliminary
instructions regarding the collection of evidence, any referrals hearings that take place before a
to mediation, and the establishment of the final trial date. civil trial, during which the judge or
magistrate has the authority to issue
Direct parties to If a judge or magistrate believes a case could be settled out orders to ensure the case is moving
attend mediation of court through mediation, they have the power to order the forward as intended.
parties to attend mediation. This often results in a less costly Discovery a pre-trial process whereby
resolution for the parties as they do not have to incur the cost each party to a civil dispute is obliged
of court fees. Failure to attend judge-ordered mediation may to share information and evidence they
result in a fine from the court. An out-of-court settlement also have about the case to ensure both
saves the court time and money, freeing up precious resources. parties are aware of the existence
of documents and other evidence.
Give directions A judge or magistrate can impose obligations on parties in
relating to relation to discovery, which is an order to provide evidence or
discovery documents, relevant to the issue in dispute, to the other party.
Determine The judge or magistrate can set deadlines for the parties
deadlines to submit documents or evidence, such as witness statements
or expert reports, to ensure the trial proceeds in an organised
and timely manner.
Control the trial The judge or magistrate can control the trial or hearing
or hearing process process. For example, they can direct the order and timeframe
in which evidence is presented by each party. They can also
LESSON LINK
issue orders to regulate the conduct of the trial or hearing,
including limits on the number of witnesses and length You learnt about mediation in 5B
of opening statements. Methods of resolving civil disputes.

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Otto’s allergic reaction disaster

5D THEORY
Otto had a serious allergic reaction after his doctor, Duncan, prescribed him new medication.
Otto took legal action, claiming Duncan did not exercise sufficient care when prescribing the
medication and sought compensatory damages for his pain and suffering. In the interest of
efficiency, the judge directed Otto and Duncan to attend mediation in an attempt to reach an
early resolution. Duncan refused to actively participate in the mediation.
At trial, Otto was unsuccessful and not awarded damages. Usually, the losing party in a civil
dispute pays some, if not all, of the opposing party’s costs. However, in this case the judge did
Figure 1 The judge used case management
powers to order mediation for Otto and not award costs in Duncan’s favour, as he failed to follow the earlier direction to participate in
Duncan’s dispute mediation, resulting in the dispute not being resolved as quickly as it ought to have been.
Evaluating judges and magistrates’ ability to achieve the principles of justice in a civil dispute
S
ES
• Independent judges and magistrates ensure trials • Judges and magistrates rely on the parties to
FAIRN
are conducted without bias and according to rules present all of the evidence and facts of the dispute
of evidence, thus contributing to fairness as the during a trial. If parties have no legal representation,
decisions are based on law and facts alone. this may prevent all of the relevant facts from being
presented to the court, or in their best light, thus
leading to an unfair trial.
EQU
• Judges and magistrates ensure rules of evidence • Whilst judges and magistrates are impartial,
ALI
and procedure apply equally to all parties during judicial officers, they are still subject to personal
TY
a civil dispute. bias and may unconsciously discriminate against

certain parties and personal characteristics,
limiting equality.
• Judges and magistrates’ case management • Accessing a hearing or trial presided by a
powers, such as setting time limits for evidence magistrate or judge can be challenging due to a
AC and ordering mediation, minimise the cost of civil range of factors, such as the associated high costs
CESS
disputes and thereby, enhance the accessibility and time-consuming nature of the proceedings.
of the civil justice system. As a result, the courts and the expertise of judicial
officers may be inaccessible for many members
of the community.
A comparison of the role of judges or magistrates

in criminal and civil cases 3.2.6.1.3
Whilst there are many similarities between the role a judge or magistrate plays
in a criminal case and a civil dispute, there are also some differences.
USEFUL TIP
A key skill in Unit 3 Area of Study 2 is to ‘compare the roles of key personnel in a
criminal and civil case’. When you are asked to ‘compare’, you should outline the
similarities of, and differences between, two things. This is different to ‘evaluate’
or ‘discuss’, which requires an assessment of the strengths and limitations or
weaknesses of something.

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Table 5 Similarities and differences between the role of judges or magistrates

in criminal and civil cases
Similarities Differences
5D THEORY
Judges and magistrates have a paramount Judges and magistrates in criminal
role of acting as the independent umpire cases do not have a role in pre-trial case
of the court and must remain impartial, management, such as ordering mediation
regardless of whether they are presiding or discovery, compared to those in civil
over a criminal or civil case. cases who are involved in pre-trial
procedures.
In both criminal and civil cases, judges and A magistrate will determine the guilt
magistrates ensure correct procedures are of an accused in a criminal case in the
followed and apply the rules of evidence. Magistrates’ Court, whereas in a civil
case, they will be determining the
liability of a defendant.
In both criminal and civil cases, if there In criminal cases, the judge or magistrate
is a jury, the judge must instruct jurors will impose a sanction if the accused is
and give them directions. found guilty, whereas in civil cases they
will award damages, order an injunction,
or make other orders as a remedy.
The role of the jury in a civil dispute 3.2.6.2

A jury is a group of individuals that are chosen randomly and required to attend
KEY TERM
court and make a decision based on evidence that is presented to them. In a civil trial,
the jury is composed of six individuals randomly selected from the electoral roll Jury a group of randomly selected
who decide questions of fact, the verdict, and in some instances the remedy. Some people who are required to deliver a
individuals are excluded from jury duty, including those with pre-existing relationships verdict in a trial based on the evidence
presented to them in court.
to the parties or who work in the legal field. It is not common for juries to be used
in civil trials in Victoria as the cost must be fully paid for by the parties.
LEGAL VOCABULARY
It is important to note that a jury is not a guaranteed right in a civil trial. If a party Electoral roll the list of names of all
wishes to have a trial by jury, they must receive approval to do so, and be willing Australians who are enrolled to vote.
to fund the cost of the jury as it is not paid for by the state. In order to enrol to vote, an individual
must be an Australian citizen and over
Table 6 Role of the jury in a civil dispute 18 years old.
Jury empanelment the process of
Role Explanation
selecting the jurors for a trial, whereby
Remain objective The jury should be independent and unbiased throughout the potential jurors can be found ineligible,
proceeding and when determining the verdict. Potential jurors or be disqualified or excused from jury
who believe they cannot remain impartial must ask to be duty for a range of reasons.
excused during the process of jury empanelment.
Listen to evidence, The jury must listen to all evidence presented at trial to ensure
judge’s directions, the verdict is based on all relevant evidence and the facts of the
and submissions case. Therefore, jurors must be alert, take notes, and keep track
made by legal of information throughout the trial. This involves listening
representatives to any directions given by the judge, and explanations of key
legal concepts.
Determine liability The main role of the jury is to determine whether the defendant
and damages is responsible for the plaintiff’s harm based on whether the
plaintiff has proven their case on the balance of probabilities.
Most of the time, the jury will need to reach a unanimous Figure 2 A civil jury is made up of six jurors,
verdict. However, in some cases a majority verdict of five out of whereas a criminal jury has 12 members
six jurors may be accepted by the court. Jurors are not required
to provide a reason for their verdict. Additionally in some
disputes, the jury may also have a role in calculating damages.

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LEGAL CASE
McKane v Conbar Transport Pty Ltd (2022) VSC 724

5D THEORY
Facts
The plaintiff, McKane, was seeking damages after being struck by a large ewe and
thrown to the ground while at work. She suffered injuries to her left arm and hand,
alongside other consequential injuries.
Legal issue
The defendants, the operators of the workplace, sought a trial before a jury in accordance
LEGISLATION with Order 47 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The
plaintiff made an application to have the trial conducted by judge alone. She argued
Supreme Court (General Civil Procedure) that the legal issues were too complex for a jury to understand, and that trial by a judge
Rules 2015 (Vic) alone would result in a more just outcome.
Decision
The judges upheld the right to trial by jury and stated the legal issues were not too
complex for a jury to comprehend and thus, there was no reason to deprive the first
defendant of their entitlement to a trial by jury. During the trial, the judge stated the
instructions to equip jurors with knowledge on the points of law necessary to make
an informed decision on the liability of the operators of the workplace, Conbar Transport
Pty Ltd.
Significance
The right to trial by jury was upheld, and the liability of the defendant was decided
by a group of six jurors. The judge’s directions to a jury during a civil case ensure legal
information is digestible and comprehensible for the everyday person, meaning the
jury can understand the case regardless of the complexity of the facts.
Image: Elliot Photography/Shutterstock.com

Figure 3 McKane sought damages after being struck by a ewe while at work
Evaluating a jury’s ability to achieve the principles of justice in a civil dispute
S
ES
• A randomised cross-section of the community • Making decisions in legal cases is a complex task,
FAIRN
is used to determine the verdict, so the parties and when undertaken by people with no legal
to a civil dispute should feel their case has been training, there is a greater risk of an unfair verdict.
decided by their peers and according to a diverse • Jurors are not required to provide the rationale
range of views, promoting fairness. for their verdict, meaning there is no guarantee
• Juries cannot seek additional information about the law has been correctly applied based on the
the case beyond the courtroom and are instructed facts presented.
to disregard any prior knowledge of the dispute.
This promotes fairness as it encourages jurors
to remain impartial.

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EQU
• Both parties have the capacity to request a jury • A party may wish to have a jury trial, but may
ALI
5D THEORY
trial in a civil dispute regardless of personal be unable to bear the cost. This limits equality
TY
characteristics, therefore upholding equality. as those of a low socioeconomic status are less
likely to utilise a civil jury trial.
• Some individuals are ineligible for or disqualified
from jury service, and as a consequence, parties
may not feel the jury is a true cross-section of the
community. This may undermine equality to a trial
by one’s peers.
• The presence of juries increases the use of plain • Additional fees are required for jury trials, so it may
English, instead of legal jargon, and ensures the not be financially viable for some parties to request
jury understands the court’s procedures and the them. This financial constraint makes trial by jury AC
CESS
evidence they are being asked to make a decision inaccessible for some parties.
upon. This allows both parties to understand the • Access to efficient dispute resolution may be
processes being used to determine their case, delayed by the use of a jury as extra time is required
promoting access to justice. to empanel a jury and throughout the dispute where
the judge may need to spend more time explaining
key legal concepts or evidence to jurors.
• Hung juries and mistrials due to juror misconduct,
can require a retrial and further delay the
achievement of justice. This hinders efficient
and timely access to justice.
USEFUL TIP
dispute’. These tables showing the strengths and limitations of juries in relation to each
principle may help you evaluate how juries can uphold the principles of justice.
A comparison of the role of juries in criminal and

civil cases 3.2.6.2.1
A jury has a similar role in both criminal and civil cases, however, there are a few
key differences.
Table 7 Similarities and differences between the role of juries in criminal and civil cases
Similarities Differences
Juries have a paramount role in remaining In a criminal case, it is the jury’s role
impartial and making a decision based to determine the guilt or innocence
on the evidence presented, regardless of of the accused. If it is determined that
whether they are taking part in a criminal the accused is guilty, this must be beyond
or a civil case. reasonable doubt. In a civil case, the
jury determines the defendant’s liability,
and this must be on the balance
of probabilities.
In both criminal and civil cases, juries Whilst the imposition of a sanction for
are obliged to listen to instructions, an accused who is found guilty is never
directions, and evidence carefully. the role of a jury in a criminal case, in
some civil case, the jury may play a role
in determining the amount of damages
to be awarded.

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Lesson summary
• Judges and magistrates act as impartial adjudicators in court proceedings and have
5D QUESTIONS
the primary duty of ensuring the principles of justice are upheld throughout the
trial process.
• Whilst judges and magistrates share similar roles, magistrates are limited
to hearing minor disputes in the Magistrates’ Court and are bound by decisions
of higher courts.
• Civil judges possess case management powers defined in the Civil Procedure Act
2010 (Vic), which empower them to issue directions that contribute to just and
efficient dispute resolution.
• Juries in civil cases are uncommon. They must be requested and funded by
the parties. Civil juries consist of six individuals who must deliberately present
evidence and determine a verdict, including awarding damages in certain
circumstances.
• Whilst there are many similarities in the roles of judges, magistrates, and juries
in criminal and civil cases, there are also some differences.
5D Questions
Question 1
Judges and magistrates in civil disputes are able to give directions to the parties to facilitate the achievement
of justice.
A. True
B. False
Question 2
A civil dispute will always require both a judge and a jury for a verdict to be determined.
A. True
B. False
Question 3
Which of the following describe the case management powers of a judge in a civil case?
A. Power to order mediation
B. Power to direct parties to a criminal court
C. Power to order directions hearings
D. Power to set the timeline of the case
Question 4
Fill in the blanks with two of the following terms:
increasing cross-examination limiting
A judge can improve the efficiency of a dispute by the time spent on and reducing
the amount of topics that a witness may be questioned on.

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Question 5
In a high profile civil trial, a number of jurors played Sudoku while key evidence was being presented. Following
5D QUESTIONS
the delivery of the verdict, the defendant was unhappy with the outcome and claimed the jurors’ behaviour led
to an unjust verdict and that a few jurors admitted they were highly influenced by the media in their decision.
Which of the following roles did the jury not fulfil in the scenario? (Select all that apply)
A. Jurors should remain alert, take notes, and keep track of information presented in court.
B. Juries cannot seek additional information about the case beyond the courtroom and they are instructed
to disregard any knowledge they may have of the dispute.
C. The jury should be independent and unbiased when reaching decisions.
D. The jury should decide the liability of a party on the balance of probabilities.
Question 6
Tick the box to indicate whether each of the following statements refers to the achievement of fairness,
equality, or access.
Statement Fairness Equality Access

I. Independent judges and magistrates ensure trials are conducted without bias and
according to rules of evidence, thus contributing to fairness as the decisions are based
on law and facts alone.
II. Judges and magistrates’ case management powers, such as setting time limits for evidence
and ordering mediation, minimise the cost of civil disputes and thereby, enhance the
accessibility of the civil justice system.
III. Judges ensure rules of evidence and procedure apply equally to all parties during
a civil dispute.
Question 7
Which of the following are key responsibilities of the magistrate during a civil dispute?
A. Advise the jury on the application of relevant law to the facts of the case before them.
B. Ensure courtroom processes and procedures are followed by all individuals present during the trial.
C. Assist judges with high-profile cases upon request.
D. Act as an independent ‘umpire’ who oversees and adjudicates proceedings without bias, allegiances,
or preconceived notions.
Question 8
Which of the following are similarities between the role of a jury in criminal and civil cases?
A. The need to remain impartial
B. The verdict delivered
C. The requirement to listen to instructions and directions from the court
D. The role of the jury in determining the sanctions and remedies
Question 9
Juries are an automatic right in civil disputes and are funded by the state.
A. True
B. False

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Preparing for exams

5D QUESTIONS
Standard exam-style
Describe one role of the judge in a civil dispute.
Outline two roles of the jury in a civil dispute.
Explain judicial powers of case management.
Compare the role of a judge in a criminal case with the role of a judge in a civil case.
‘Juries in criminal cases have an identical role to juries in a civil case.’
Extended response
Question 15
Tick the box to indicate whether the following statements are strengths or limitations of juries
in civil disputes.

I. A randomised cross-section of the community is used to determine the verdict, so the
parties in a civil dispute should feel their case has been decided by their peers and according
to a diverse range of views, promoting fairness.
II. Making decisions in legal cases is a complex task, and when undertaken by people with
no legal training, there is a greater risk of an unfair verdict.
III. Jurors are not required to provide the rationale for their verdict, meaning there is no guarantee
the law has been correctly applied based upon the facts presented.
IV. Jurors must remain impartial and make their decision solely on the facts and evidence presented,
promoting a fair and just outcome
Discuss the extent to which the use of a jury in a civil dispute assists the justice system to achieve the
principle of fairness.

With reference to the standard of proof, explain how the role of the jury in a civil case is different to the role
of a jury in a criminal case.

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5E The parties in a civil dispute

• the roles of key personnel in a civil dispute, including the judge or magistrate
(including the role of case management), the jury, and the parties
5A 5B 5C 5D 5E 5F 5G 5H 5I 5J 5K
Image: ArmadilloPhotograp/Shutterstock.com
In a civil dispute, the plaintiff and the

defendant are like two chess players
3.2.7.1 3.2.7.2 in a strategic battle. The plaintiff, armed
The role of the plaintiff The role of the defendant with a compelling argument, meticulously
moves their pieces to build a strong
case. Meanwhile, the defendant tries
to strategically counter each move and
undermine the plaintiff’s case. Both players
strive to outwit their opponent, hoping
to secure victory on the legal chessboard.
Lesson introduction
In Australia’s legal system, parties to a civil dispute control how they present their
case to an impartial judge or magistrate. Each party to a civil dispute is responsible for
preparing their case and bringing it before the court. This includes all the necessary
pre-trial procedures, considering enforcement issues, assessing costs, and applying
for an appeal if appropriate.
The role of the plaintiff 3.2.7.1

As the plaintiff is the party that brings a civil action against the defendant, their
KEY TERMS
primary focus is to prove the defendant is liable. Alternatively, as the defendant
is the party who is alleged to have breached the plaintiff’s civil rights, they aim Plaintiff the party that initiates
to convince the jurors or judge, in a trial without a jury, that they are not liable. a civil claim against another person,
the defendant, in court.
Table 1 The role of the plaintiff in a civil dispute Defendant the party that is defending
themself against a claim by another
Role of the plaintiff Explanation
person, the plaintiff, for an alleged
Control their own case The civil trial system in Victoria allows the plaintiff breach of civil law.
(via their legal representative if they have one) to have
full control over their case, which is referred to as LEGAL VOCABULARY
party control. When bringing a claim to court, they Party control the power parties in a
have the authority to determine their cause of action, civil trial hold to determine the course
the selection of evidence, and the choice of witnesses, of proceedings.
with adherence to the rules of evidence and procedure.
For instance, the plaintiff has the freedom to pursue
multiple actions for various civil matters or focus solely
on one claim they believe will be successful, even if
other breaches have occurred.
Disclosure It is the responsibility of the parties to ensure all

relevant documents are presented to the court as per
the Civil Procedure Act 2010 (Vic), which states that the LEGISLATION
overarching obligation of the parties in a civil dispute
is to disclose the existence of documents that are critical Civil Procedure Act 2010 (Vic)
to the dispute. Continues →

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Table 1 Continued
Role of the plaintiff Explanation

5E THEORY
Present evidence The parties must present all evidence to the judge
throughout the trial, as well as the jury if one had been
requested. In practice, the presentation of evidence
and legal arguments is conducted by legal practitioners
on the plaintiff’s behalf.

You will learn about injunctions in School for Excellence Pty Ltd v Trendy Rhino Pty Ltd (2018) VSC 514
6B Injunctions as a remedy.
Facts
In July 2018, the School for Excellence Pty Ltd (TSFX) complained to Facebook that
VCE Discussion Space had breached copyright laws by publishing numerous TSFX
practice exams. Upon receiving the complaint, Facebook shut down VCE Discussion
Space. The defendant, Trendy Rhino Pty Ltd, the creator of the original Facebook group,
formed a new Facebook group called ‘VCE Discussion Space Backup’. The new group
administrators urged the estimated 11,000 followers to ‘reclaim the group that is
rightfully ours’, inciting followers to criticise and blame the TSFX for taking down its page.
Legal issue
The plaintiff, TSFX, after suffering a new round of criticism at the hands of VCE
Discussion Space, sought an injunction in the Supreme Court of Victoria as damages
were found to be an inadequate remedy. TSFX presented the various subsequent
examples of defamation and ‘sneaky’ tactics that VCE Discussion Space had employed
against them to the court.
Decision
Justice Dixon granted an interlocutory injunction against Trendy Rhino for defamation
and copyright breach.
Significance
Trendy Rhino’s defence failed and it had to abide by the court-ordered interlocutory
injunction. This case demonstrates the role of the plaintiff in a civil case, disclosing
relevant evidence that caused them to suffer loss and ultimately securing an
appropriate remedy to mitigate their loss.
The role of the defendant 3.2.7.2

The defendant is the party who is alleged to have breached the plaintiff’s civil
rights. They are able to defend themselves against the plaintiff’s claims. Their aim
is to convince the jurors, or judge in a trial without a jury, that they are not liable.
Table 2 The role of the defendant in a civil dispute
Role Explanation
Control their own case The civil trial system in Victoria allows the defendant
to have full control over their defence case. They have
the ability to raise relevant defences and call their own
witnesses, with adherence to the rules of evidence
and procedure.
For instance, the defendant has no obligation to present
defences if they believe the plaintiff has not sufficiently
proven their case on the balance of probabilities.
However, defendants do have the option to raise
defences to protect themselves from liability.
Continues →

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Table 2 Continued
Role of the defendant Explanation
5E THEORY
Disclosure It is the role of the parties to ensure all relevant
documents are presented to the court as per the Civil LEGISLATION
Procedure Act 2010 (Vic).
Civil Procedure Act 2010 (Vic)
Present defences The defendant is able to present defences to the judge
throughout the trial, as well as the jury if one has been
selected. Legal practitioners usually present evidence
on the defendant’s behalf.
Drew’s cookie crisis

Drew, owner of popular cookie business known as ‘Graham Cracker’, found himself at risk
of serious litigation after Leila, a customer, contracted a deadly disease from eating one
of his cookies.
Although Drew knew that it is not necessary for the defendant to present their case
in a civil trial, he understood the gravity of the situation and recognised the importance
of mounting a strong defence to protect his business and reputation.
During the trial, Drew presented the relevant documents. He argued the contaminated
cookie was an unforeseen occurrence, as the business had never encountered such an
issue before. He highlighted the steps taken to ensure the highest standards of cleanliness
and safety, supporting this with documentation.
However, Drew’s defence was not strong enough to prove he was not liable, and Leila was Figure 1 Drew’s defence case failed and that
successful in her negligence claim. is just how his cookies crumbled
DEEP DIVE
Overarching obligation of the parties to a civil dispute

In Victoria, the Civil Procedure Act 2010 (Vic) is designed to ensure all civil matters are
resolved in the most timely and cost-effective manner possible. This means parties and
their legal representatives have certain obligations during the trial:
(1) Act honestly
(2) Only make claims that have a proper basis USEFUL TIP
(3) Only take steps to resolve or determine the dispute An important key skill in Area of Study
(4) Cooperate in the conduct of the civil proceeding
(5) Not mislead or deceive system to achieve the principles
(6) Use reasonable endeavours to resolve the dispute of justice during a civil dispute’.
(7) Narrow the issues in dispute These tables showing the strengths
and limitations of the parties
(8) Ensure costs are reasonable and proportionate
in relation to each principle may help
(9) Minimise delay you evaluate how the parties can
(10) Disclose the existence of documents critical to the dispute uphold the principles of justice.
Evaluating the parties ability to achieve the principles of justice during a civil dispute
S
ES
• Parties to a civil dispute have control of their own • Self-represented parties may not understand which
FAIRN
case and are responsible for deciding what facts documents are relevant and therefore, may fail to
to present and how to present them. Therefore, disclose all relevant evidence to the court. This may
party control contributes to fairness as parties jeopardise the achievement of a fair outcome to the
can participate in, and have control over, the civil case where not all evidence has been assessed.
court processes. • Self-represented parties may struggle to
understand how to present legal arguments and
evidence in the best possible light, which may
lead to an unjust outcome.

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EQU
5E QUESTIONS
• Both parties are given equal opportunity to present • Not all parties are equally equipped to present their
ALI
their case to the court, contributing to the principle case to a judge and jury without the assistance
TY of equality. of legal practitioners. Therefore, some parties, such
• Both the plaintiff and defendant must abide by as those who are of low socioeconomic status,
court processes and procedures, achieving equality may not be able to defend themselves effectively,
as both parties are treated the same before the law. such as due to the expense of legal representation,
hindering equality.
• Courts provide some general guidance to parties • Institutions that promote access to justice for
who are representing themselves, regarding parties of low socioeconomic status in a criminal
AC court procedures, to allow them to better engage case, such as Victoria Legal Aid, are often unable
CESS
with the justice system and its processes on an to support parties in civil disputes, leaving
informed basis, enhancing access to justice. defendants without legal representation. Parties
without legal representation may struggle
to understand their legal rights, and how to present
legal arguments and evidence, limiting access
to justice.
LESSON LINK Lesson summary

You learnt about Victoria Legal Aid The parties to a civil trial:
(VLA) in 2B Victoria Legal Aid and
community legal centres. • have control over their case.
• can choose which witnesses to call and what evidence to present.
• must provide all relevant documentation to the court.
The role of the plaintiff is to:

• initiate the claim and present a case to prove the defendant’s liability on the
balance of probabilities.
The role of the defendant is to:

• choose whether to present a defence and ensure they are not found liable.
5E Questions
Question 1
The parties involved in a civil dispute are called the plaintiff and the accused.
A. True
B. False
Question 2
Which of the following statements is not correct about the parties in a civil trial?
A. The parties must present all relevant documents to the court.
B. Only the plaintiff is permitted to call witnesses that present evidence to the court.
C. The defendant must present a defence to prevent them from being found liable.
D. The parties have control over their case, including deciding what evidence to present.

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Question 3
Which of the following are the roles of the plaintiff in a civil trial? (Select all that apply)
5E QUESTIONS
A. To initiate the claim against the defendant.
B. To present all relevant documents to the court.
C. To decide which lawful defence(s) they wish to present in court.
D. To call witnesses and present evidence to the judge and the jury, if the parties choose to have one.
Question 4
Fill in the blanks with one of the following terms:
plea negotiations party control
Unlike a criminal trial, parties in a civil trial have a degree of control over how the proceedings play out.
This is called .
Question 5
Which of the following are the roles of the defendant in a civil trial? (Select all that apply)
A. To decide if the plaintiff’s evidence is admissible.
B. To explain points of law to victims and other witnesses.
C. To present all relevant documents.
D. To decide whether to present defences at trial.
Question 6
Tick the box to indicate whether the following statements are strengths or limitations of the role of parties
in a civil trial in achieving the principles of justice.

I. Both the plaintiff and the defendant are given an equal opportunity to present their case to the court.
II. Self-represented parties may be disadvantaged if they do not understand court processes and
are unable to present all relevant evidence to prove their case.
III. Self-represented parties may struggle to understand how to present legal arguments and
evidence in the best possible light, which may lead to an unjust outcome.
IV. The courts provide some general guidance to parties who are representing themselves, regarding
court procedures, to allow them to better engage with the justice system and its processes
on an informed basis.
Question 7
The plaintiff initiates the case in civil trials and the defendant can defend themselves against the plaintiff’s
claims to cast doubt in the judge or jury, ensuring the plaintiff can not prove the defendant’s liability beyond
reasonable doubt.
A. True
B. False
Preparing for exams

Standard exam-style
Outline the plaintiff’s roles in a civil trial.

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Explain one way in which the defendant’s ability to present defences could achieve the principle of fairness.
5E QUESTIONS
Fabio entered a contract when selling his car to Jade. After purchasing the car, Jade found it was faulty.
Jade, the defendant, initiated a civil claim against Fabio. Fabio decided to hide documents at trial that stated
the car was in fact faulty. He faced no legal repercussions for withholding these documents.
Identify two errors in the scenario above and, for each error, explain the correct civil process that should
have occurred.
Extended response
Risharb and Adam got into a scuffle on the footy field after a heated match. Risharb required major surgery
that was very costly and he is unable to work due to his injuries. Risharb initiated a civil claim against Adam
but is unable to afford legal representation. Therefore, Risharb decides to represent himself at the trial.
Question 11
Which of the following statements are true about the roles of the parties in Risharb’s case?
A. Both parties are subject to overarching obligations, such as the requirement to cooperate, disclose
relevant documents at the earliest possible opportunity, and act honestly.
B. Adam has the burden to present a case in his defence on the balance of probabilities.
C. Since Risharb is representing himself, he may be disadvantaged as Adam could have a proficient lawyer
who presents his case in the best possible light.
D. Adam has the ability to cross-examine Risharb’s witnesses, but Risharb cannot cross-examine Adam’s.
E. Adam and Risharb both have party control.
Assuming Risharb’s case proceeds to trial, discuss the roles of both parties involved in this case.

Distinguish between the role of the parties and the role of the judge in a civil trial.

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5F Legal practitioners in a civil dispute

• the need for legal practitioners in a civil dispute
5A 5B 5C 5D 5E 5F 5G 5H 5I 5J 5K
Image: Elena Nichizhenova/Shutterstock.com

3.2.8.1 3.2.8.2 Civil disputes are often considered a battle
An introduction The need for legal between the plaintiff and the defendant.
to legal practitioners practitioners As with any duel, a competitor should
in a civil dispute in a civil dispute
obtain all the help they can get and follow
the rules. Legal practitioners in civil disputes
assist in legal battles by ensuring their
client’s arguments are presented in the
best possible light while complying with
the relevant rules and procedures of the
civil justice system.
Lesson introduction
The civil justice system is highly complex and difficult to navigate due to the processes,
methods, and various institutions that may be involved in resolving civil disputes.
Therefore, parties often engage legal practitioners to assist in resolving their civil
legal matters. Whilst legal practitioners have a duty to seek the best result for their
clients, they also must comply with the rules of the courts, tribunals, or other dispute
resolution processes. By engaging a legal practitioner, a party in a civil dispute can gain
a better understanding of their legal rights and obligations, leading to fairer outcomes.
Although the courts may help a party who does not have legal representation, this
assistance can only extend so far. Therefore, if a party chooses to self-represent, or is
forced to due to their financial circumstances, the outcome of their dispute may
be unjust and unfavourable.
An introduction to legal practitioners

in a civil dispute 3.2.8.1 KEY TERMS
As an initial step in civil proceedings, both the plaintiff and defendant may seek the
guidance of a solicitor. Solicitors are legal practitioners who primarily focus on Solicitor a lawyer who advises clients
about legal matters, prepares legal
assisting clients with various day-to-day legal matters and concerns. They bear the
documentation for trial, communicates
responsibility of fulfilling numerous legal obligations and duties, including offering with the other party’s legal
clients advice and strategies to address a wide range of legal issues. representation, researches the relevant
The main difference between barristers and solicitors is that solicitors advise laws, and when required engages the
services of a barrister and briefs them
clients on a broad range of legal issues, whilst barristers present arguments in court.
to represent a client in court.
Barristers primarily serve as legal representatives for clients in court, who may be
Legal practitioner a lawyer with an
involved in significant civil disputes. Barristers must present arguments and evidence
Australian legal practising certificate.
before a judge, and in some circumstances, a jury. Barristers may also be utilised
Barrister a self-employed lawyer who
in presenting their client’s case in out-of-court settlements such as mediation,
regularly appears in court and is
conciliation, or arbitration. However, these out-of-court methods of resolving responsible for representing a party
a dispute often require parties to be self-represented, and hence, there is often in a trial by making legal arguments,
no need for legal practitioners when resolving a dispute through these avenues. questioning witnesses, and summarising
the case to the judge and/or jury.

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In criminal cases, an accused person’s trial may be adjourned in order for them
LEGAL VOCABULARY
to gain legal representation. However, this same right is not afforded to parties
Litigant a person involved in a in a civil dispute, although judges have a duty to help self-represented litigants
civil dispute.
5F THEORY
understand court processes.
Furthermore, it may be more difficult for parties of low socioeconomic status in

LESSON LINKS a civil dispute to obtain representation from Victoria Legal Aid (VLA) compared
to a criminal case. VLA may grant legal assistance to a plaintiff in a civil dispute
You learnt about legal practitioners
if the amount of their claim is $5,000 or more. A defendant may also be able to receive
in 2G Legal practitioners in a
criminal case. legal assistance if all of the following factors apply:
You learnt about mediation, conciliation, 1. The civil claim is for an amount of $5,000 or more.
and arbitration in 5B Methods of 2. The defendant’s sole home is at immediate risk in the action.
resolving civil disputes. 3. There is a strong prospect that the defendant can defend the action.
You learnt about Victoria Legal Aid
(VLA) and community legal centres
Community legal centres (CLCs) may be able to provide legal advice or representation
(CLCs) in 2B Victoria Legal Aid and in a civil dispute, for example:
community legal centres (CLCs). • AED Legal Centre in Melbourne assists people with a disability who have
employment and education-related legal problems, such as an unfair
dismissal claim.
• Disability Discrimination Legal Service (DDLS) in Melbourne specialises
in disability discrimination matters.
• Eastern Community Legal Centre provides free legal advice to people in
Melbourne’s Eastern suburbs in civil matters relating to family law, divorce,
discrimination, neighbourhood disputes, and more.
DEEP DIVE
A day in the life of a barrister

A barrister’s working life is not confined to just the courtroom. Whilst solicitors may
undertake a large portion of the preparation work for their client’s dispute before it reaches
the courtroom, there is still work to be done while the dispute is actively being heard.
In the hours before a court sitting, a barrister will often prepare the witnesses they will call
upon, conference with the client, and complete final checks of the evidence that will
be presented in the sitting.
After court, barristers review the transcript of the sitting to guide their next steps with their
client’s case and will then likely begin preparing for what comes next.
In the days that a barrister is not required in court, there is still work to be done. Court
documentation, such as affidavits, require precise completion and this is a duty that will
often fall upon the barrister. They may also provide legal advice, communicate and liaise
with their clients and their families, and continue general preparations for upcoming
court dates.
Image: SpeedKingz/Shutterstock.com
Figure 1 A barrister has an important role for their clients both in and out of the courtroom

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The need for legal practitioners

in a civil dispute 3.2.8.2
5F THEORY
Table 1 The need for legal practitioners in a civil dispute
Reason Explanation
Advise clients • Gaining legal advice from a solicitor can enable a party
on their in a civil dispute to better understand their rights and
legal rights obligations so they are able to make an informed decision
about how to handle their dispute going forward.
• Lawyers can read through past cases and legislation,
synthesising this information into concise and
easy-to-understand advice for their clients. Gaining clear
and concise information can help a plaintiff determine
whether to initiate a civil action against the defendant
in court, or try to resolve their dispute out of court through
mediation, conciliation, or arbitration.
Present • Unlike in criminal law cases where an accused person is able

evidence and to question their victim in court, the Family Law Act 1975 LEGISLATION
cross-examine (Cth) bans parties from conducting a cross-examination
witnesses of one another when engaging in family civil matters Family Law Act 1975 (Cth)
where family violence previously occurred. Therefore,
a firm must be appointed by VLA to represent the party
that is banned from cross-examining the witnesses. LEGAL VOCABULARY
The lawyer appointed by the firm will complete the
Cross-examination the interrogation
questioning on behalf of the party.
in court of the opposing party’s
• Presenting evidence and cross-examining witnesses requires witness who has already testified,
procedural standards to be abided by to ensure irrelevant in order to check or discredit the
questions are not being asked. Therefore, a barrister who witness’s evidence.
is familiar with such rules will be able to ask relevant Affidavit a written record of a person’s
questions to witnesses and present compelling evidence evidence that includes facts relevant
to support their client’s case. to a case.
Provide objectivity • Unlike a party in the civil dispute who may be emotionally Subpoena a document issued by a
government body, such as a court, that
invested in the dispute’s outcome, especially if the civil
orders a person to provide information
dispute relates to sensitive matters such as discrimination
that can be used as evidence in a case.
or family issues, a lawyer will be able to look at the dispute
through an impartial lens as they themselves are not Procedural fairness a principle
emotionally impacted by its outcome. Therefore, this of law requiring that a person be given
a fair hearing and that fair procedures
objective lens can allow a lawyer to better perceive the
are followed in administrative
strengths and weaknesses of their client’s, and the other
decision making.
party’s, case.
Ensure documents • In civil disputes, affidavits and subpoenas may be required

are properly to receive evidence relevant to the case. Those who are not
WANT TO KNOW MORE?
drafted and familiar with court proceedings may struggle to ensure such
handled documents are handled or acquired correctly. If a person decides to initiate a civil
dispute without any legal representation,
• Once a dispute has finished, a legally-binding agreement
there are several websites they can
may be formed. A lawyer can ensure this agreement visit to better understand the law and
is binding on both parties and that the agreement is not the legal proceedings that will occur
unfair to their client. during their dispute. You can find out
Provide support more about being a self-represented
• Being a party to a civil dispute, such as a family civil dispute,
litigant by searching ‘Self represented
can be an emotional experience for a party. Therefore,
litigants’ and clicking the ‘County
having a lawyer whom a party can confide in about their
Court of Victoria’ (2023) webpage.
troubles can be comforting for an individual.
• Furthermore, a party may find it difficult or traumatic
to hear about the facts of their civil dispute in court.
Thus, having a lawyer sitting next to them in court
as they hear such facts can provide emotional support.

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LEGAL CASE
5F THEORY
to family violence.
Rawle v Calvar [2022] WADC 27
Facts
In 2020, Mr Calvar and Mr Rawle appeared before a magistrate to determine whether
Mr Cavlar’s family violence restraining order (FVRO) against Mr Rawle should be upheld.
At this hearing, Mr Cavlar was represented by a solicitor, Mr Barker, whilst Mr Rawle was
self-represented. The magistrate concluded Mr Rawle had perpetrated family violence
against Mr Calvar and granted him an FRVO against Mr Rawle. Mr Rawle then appealed
this decision on several grounds, one of the grounds being that the magistrate had not
upheld her duty to adequately support a self-represented litigant.
Legal issue
On appeal, it had to be determined whether the magistrate had upheld her duty to the
self-represented litigant. Mr Rawle argued that he had a special disadvantage when
self-representing as he was interrupted by Mr Calvar’s lawyer, Mr Barker, without objection
by the magistrate. Mr Rawle reported the interruptions ‘really affected what [he] was
doing on the day as a self-represented litigant’.
Decision
On this ground of the appeal, the court determined the magistrate had provided Mr Rawle
procedural fairness as a self-representing litigant. Firstly, the court established the duties
Image: Kristin Greenwood/Shutterstock.com a judge or magistrate must uphold when adjudicating a case involving a self-represented
Figure 2 The magistrate must uphold a duty litigant. They suggested the court has an obligation to give sufficient information about
to give sufficient information about legal the court’s practices and procedures to someone who is self-representing to ensure
proceedings to self-represented litigants
in a civil dispute a fair trial. However, they noted the judge or magistrates’ duty does not extend to advising
self-represented litigants about how their rights should be exercised.
The court concluded the magistrate ‘was very fair’ towards Mr Rawle in explaining his
entitlement to give evidence, the purpose of cross-examination, the order at which evidence
would be given, and providing Mr Rawle the opportunity to raise anything before evidence
submissions commenced. Thus, there was no merit for Mr Rawle to appeal on the grounds
the magistrate treated him unfairly.
Significance
This case demonstrates how the magistrate has a duty to help self-represented litigants
by providing them with information about court proceedings to ensure they understand
what is going on during a dispute. Here, the self-represented litigant was given sufficient
information by the magistrate about how the court proceedings would run. Therefore,
even though Mr Rawle’s experience likely would have been easier had he obtained a legal
practitioner, the absence of a lawyer during a civil dispute will not automatically mean the
self-representing party is at a major disadvantage in the civil dispute.
Divorce dramas
Joyce and George decided to get divorced, so Joyce sought the services of a family law
solicitor, Ali. He provided her with initial advice about her rights and obligations in the matter,
which involved substantial property assets and child custody issues.
Ali also assisted Joyce in compiling relevant financial information and drafting an agreement
to be negotiated with George and his solicitor. Ali negotiated on behalf of Joyce, but the
parties were unable to come to an amicable agreement. Other dispute resolution methods
Image: David Gyung/Shutterstock.com also failed.
Figure 3 A solicitor can assist a party in a civil
dispute by providing advice, negotiating
Ali then assisted Joyce in making an application to the Federal Circuit of the Family Court
on their behalf, preparing their case for court, for property settlement and parenting orders. Prior to the hearing, Ali briefed a barrister,
and briefing a barrister Danushka, who appeared in court to represent Joyce in the matter.

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USEFUL TIP
5F THEORY
dispute’. These tables showing the strengths and limitations of legal practitioners
in relation to each principle may help you evaluate how legal practitioners can uphold
the principles of justice.
Evaluating legal practitioners’ ability to achieve the principles of justice during a civil dispute
S
ES
• The duty of both parties’ legal representatives to • When only one party has legal representation it
FAIRN
present all relevant evidence and legal principles to may lead to an unfair outcome, as each party cannot
the court helps ensure the whole truth emerges and prepare and present a case of the same quality.
a just outcome is produced, promoting fairness. • Quality lawyers are often expensive, therefore
• Legal practitioners can help parties navigate a civil a party may only be able to seek a lower-quality
dispute by advising them about the law and legal lawyer. The quality of the presentation of the case
proceedings. This helps to ensure parties to a civil may influence the outcome, therefore the outcome
dispute can participate in proceedings in an open is not solely based on the judge and/or jury’s
and informed manner as they understand what impartial assessment of the facts. This is unfair
is expected of them. to the poorly represented party.
• When legal practitioners are representing both • A party’s ability to participate in the appeals process
parties in a civil dispute, the court process may be after a civil dispute, if they are dissatisfied with
quicker as the judge or magistrate does not have the outcome, may be limited if they do not have
to constantly stop during proceedings to explain legal representation as they may find it difficult
the processes to a party. Disputes lasting a short to understand the process of filing for an appeal
amount of time promote fairness as it allows more and going through the court process again during
people to participate in civil disputes since the an appeal.
courts can hear more cases in a shorter amount
of time.
• Legal practitioners have greater objectivity when
making decisions in a civil dispute as they do not
have a personal or emotional connection to the
issues of the dispute. As a result, the evidence
they collate and their questions to witnesses can
allow an impartial account of events to emerge.
If a self-representing litigant questions witnesses,
on the other hand, their emotions and biases may
skew the examination process and prevent the
truth from emerging.
EQU
• All parties in a civil proceeding have the same • Some financially-disadvantaged parties may be
ALI
ability to choose their own legal representation. unable to afford good quality legal representation,
TY
• Judges or magistrates in a civil dispute have or any at all. This may result in cases not being
a duty to assist all self-represented litigants equally prepared and presented and can create
by informing them about legal practices and power imbalances between parties.
proceedings involved in the dispute. This can • If both parties choose to self-represent during an
ensure a self-representing party is not at such in-court civil dispute or out-of-court settlement, one
a significant disadvantage to a party that has party’s legal knowledge may be better than the other
legal representation, promoting equality. party’s if they have studied law or worked closely
with lawyers, for example. As a result, although the
parties may appear to be on equal footing, one party
will have greater experience and knowledge than
another therefore creating an imbalance in power
between parties.

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5F QUESTIONS
• Legal practitioners help parties to prepare and • The costs of legal practitioners make it less
present their case, increasing access to justice accessible for many individuals.
AC as a party’s understanding of the law and legal • Access to justice includes understanding one’s legal
CESS
proceedings is increased. rights. Therefore, parties without representation
• Some law firms use a ‘no win, no fee’ arrangement may not understand the procedures used in court
which may encourage a plaintiff to seek justice and other dispute resolution processes, limiting their
as, where they lose the dispute, no financial burden access to justice.
is incurred. This improves access to justice as more
people are likely to engage legal representation,
preventing the cost of legal representation from
acting as a barrier to justice.
• A party in a civil dispute may have improved access
to the appeals process if they hire a legal practitioner
as the lawyer can complete the documentation
required for the appeal and prepare and present
arguments for the party during the appeal.
Lesson summary
• The presence of solicitors or barristers in a civil dispute facilitates the presentation
of evidence, upholds the principles of justice in the courtroom, and ensures civil
principles are correctly applied.
• Legal practitioners are needed in a civil dispute for several reasons, including to:
– advise clients on their legal rights
– present evidence and cross-examine witnesses
– provide objectivity
– ensure documents are properly drafted and handled
– provide support.
5F Questions
Question 1
Which of the following statements is a reason why legal practitioners are needed in a civil dispute?
A. They issue a remedy to the defendant.
B. They determine the liability of the defendant.
C. They present evidence on behalf of their client and cross-examine witnesses.
D. They gather evidence on the opposing party that is not relevant to the case.
Question 2
Which of the following are not reasons why legal practitioners are needed in a civil dispute?
A. They ensure the courtroom is clean and tidy before the trial.
B. They can provide comfort and support to a party in a civil dispute.
C. They determine the amount of damages their client is awarded.

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Question 3
5F QUESTIONS
Solicitors Barristers
are the legal practitioners primarily responsible for the pre-trial necessities in a civil dispute.
, on the other hand, present the facts and arguments about their client’s case during the trial either
in court or during other methods of civil dispute resolution, such as mediation.
Question 4
The principle of access can be upheld when parties engage legal practitioners as the advice and information
provided by lawyers can enhance a party’s understanding of their legal rights and the proceedings that will
take place, helping parties access civil dispute resolution on an informed basis.
A. True
B. False
Question 5
The presence of legal practitioners in a civil dispute does not always uphold the principle of equality.
A. True
B. False
Question 6
High costs associated with solicitors and barristers may increase the risk that a plaintiff or defendant may
forgo legal representation, upholding the principle of access.
A. True
B. False
Preparing for exams

Standard exam-style
Outline one reason why legal practitioners are needed in a civil dispute.
‘All parties are able to remain objective when self-representing, therefore, it is not necessary to engage
legal representation.’
Do you agree with this statement? Justify your response, referring to one principle of justice.
Kendall is an international supermodel. She has commenced a civil action in the County Court of Victoria
against her former manager, Kris, alleging Kris breached a contract between the pair by telling the media
confidential information about Kendall’s private relationship. Kris has engaged legal practitioners to defend
the claim against Kendall.
Describe one reason why Kris may need legal practitioners at trial if Kendall’s case goes to trial.

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Extended response
5F QUESTIONS
Question 10
Tick the box to indicate whether each of the following statements about legal practitioners demonstrate
how the principles of justice are achieved or not achieved.
Statement Achieved Not achieved

I. Legal practitioners help parties to prepare and present their cases, increasing access
to justice as a party’s understanding of the law and legal proceedings is enhanced.
II. The costs of legal practitioners for both parties are high, meaning having legal representation
is less accessible.
III. Some financially-disadvantaged parties may be unable to afford good quality legal
representation, or any at all. This may result in cases not being equally prepared and presented.
IV. Judges or magistrates in a civil dispute have a duty to assist a self-represented litigant
by informing them about legal practices and proceedings involved in the dispute. This can
ensure a self-representing party is not at such a significant disadvantage to a party that has
legal representation, upholding equality.
V. A party in a civil dispute may have improved access to the appeals process if they hire a legal
practitioner as the lawyer can complete the paperwork for the appeal and can prepare and
present arguments for the party during the appeal.
VI. All parties in a civil proceeding have the same ability to choose their own legal representation.
Discuss the extent to which the use of legal practitioners in civil disputes helps the justice system achieve
the principles of equality and access.

Distinguish between the need for legal practitioners in a civil dispute and a criminal case.

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5G Class actions
• the use of class actions to resolve civil disputes
5A 5B 5C 5D 5E 5F 5G 5H 5I 5J 5K
Image: Sebastian Riebolge/Shutterstock.com

3.2.9.1
In the landmark Black Saturday class action
Class actions in 2009, the Victorian Supreme Court
approved a $494 million payout to victims.
The ruling compensated those affected
by the devastating fires, as the blaze killed
119 people, destroyed 125,000 hectares
of land, and more than 1,000 homes. The
action, which involved approximately 5,000
group members, was taken against power
distributor SP AusNet and asset manager
Utility Services Group and is one of the
biggest class actions in Australian history.
Lesson introduction
Class actions provide an avenue for individuals to access remedies collectively.
By enabling more people with similar claims to come together, this legal mechanism
empowers the wider community to obtain justice. These group court cases not only
save valuable court time and resources, but also allow for a greater number of cases to
be heard, benefiting everyone involved and fostering a fairer legal system. Importantly,
they serve as a means of holding companies and corporations accountable for their
actions, ensuring justice is achieved.
Class actions 3.2.9.1

A class action occurs when a group of people with the same legal grievance come
KEY TERM
together to initiate a single, civil action. In Australia, class actions can be heard in the
Federal Court and in the State Supreme Courts. There are three criterion that must Class action a legal proceeding
be satisfied for an action to be classified as a class action. Class actions are particularly brought by one or numerous plaintiffs
appropriate when a large number of claimants have suffered a relatively small loss. acting for themselves as well as on
behalf of a wider group of people who
Table 1 The criteria for a class action have a claim with similar facts.
Criterion 1 Criterion 2 Criterion 3

Seven or more people are The claim must be in The claim must give rise USEFUL TIP
claiming against the same respect of, or arise from, to a common issue of law
Class actions may also be referred
defendant (s). the same, similar, or or fact, meaning the same
to as ‘representative proceedings’
related circumstances. issues are determined
or ‘group proceedings’.
by the court for all claims.
Law
LESSON LINK
You learnt about the Supreme Court
in 5C The Victorian court hierarchy
and civil disputes.

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Flakey financial services

5G THEORY
Assume a bank charges 5,000 customers for financial services it does not provide. Each
customer is out-of-pocket $300. For this relatively small financial loss, an individual
plaintiff may deem it too expensive and time-consuming to take legal action against the
bank individually. If all 5,000 customers take action together and seek to recover their
loss, it is far more cost and time-effective for the court.
A lead plaintiff initiates proceedings on behalf of the entire group. The resolution
LEGAL VOCABULARY
of this plaintiff’s claim will determine the defendant’s liability for other members
Lead plaintiff an individual in a class of the group taking action. The lead plaintiff has the same obligations as any plaintiff
action who represents an entire group in individual litigation, but also has additional obligations specific to class actions.
of people who were allegedly harmed
Responsibilities of the lead plaintiff include:
by a defendant’s wrongdoing.
• assuming the risk and cost of the litigation on behalf of the entire group.
• ensuring the claim serves the interests of the group members and is not pursued
solely for personal benefit.
• providing instructions to their lawyers regarding the conduct of the claim and
making decisions regarding settlement offers or negotiations.
• filing the case under their own name.
Table 2 The financial impact of class actions
Financial impact Explanation

If a class action fails If the class action fails, the lead plaintiff is solely responsible for the costs of the
proceedings and any adverse costs orders. Generally, group members are under
no obligation to contribute to proceeding costs unless, or until, a successful outcome
is known.
If a class action is successful If the class action succeeds, the class members will share the costs of bringing
the proceedings.
The costs of winning a class action are shared among the class members. The type and
amount of costs depend on how the risks of losing have been covered during proceedings.
In Australia, class actions operate on an ‘opt-out’ system, where claims are initiated
WANT TO KNOW MORE?
and pursued on behalf of a specific group, regardless of whether all group members are
As of November 2023, the class action aware of the claim at the beginning. This approach ensures that even individuals who
involving AFL players with concussion-
are difficult to reach or lack access to legal representation have their rights safeguarded
related injuries had not yet been heard
through the claim. Once the class action reaches a stage where the disputed matters
by the Supreme Court of Victoria. You
can find out more about this case by are clearly defined, the court issues orders to publicise an ‘opt-out notice’, giving group
searching ‘AFL concussion class action’ members the chance to ‘opt-out’. Group members who do not respond to the notice
and clicking on the latest news articles. will remain part of the class action and will be bound by the final judgment of the
case. They will benefit or face the detriment from any rulings made in the class action.
REAL WORLD EXAMPLE
Concussion clanger turned class action

Former football players, led by Jarad Maxwell Rooke from the Geelong Football Club, initiated
a class action to gain compensation for serious damage suffered from concussions. The
action was lodged in the Supreme Court of Victoria on behalf of all professional AFL players
who have suffered concussion-related injuries over the course of training or playing AFL.
Over 60 players came forward to join the class action, supporting the argument that the
AFL failed to conduct risk assessments for head strikes and enforce adequate rules and
policies. The lawyers representing the class action asserted that the players’ ‘personal lives
have been shattered and they live with constant physical and mental pain. It’s heart-breaking
Image: Neale Cousland/Shutterstock.com
and they need to be adequately cared for’.
Figure 1 AFL players lodged a class action Adapted from ‘Landmark class action chases up to $1bn compensation for alleged long-term concussion damage
in the Supreme Court of Victoria to AFL players’ (Australian Associated Press, 2023)

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DEEP DIVE
Third-party litigation funders
5G THEORY
Third-party litigation funders are commercial entities that agree to meet the costs
of the litigation in return for a proportion of the damages recovered if the case is
successful. Third-party litigation funders are not a party to the dispute, meaning the
breach or loss does not impact their company, they merely provide money to fund the
litigation. The use of third-party litigation funders has been criticised as often a large
percentage of the damages are given back to them, and not awarded to the group
members who have suffered the injustice. However, without litigation funders, a class
action may never be initiated, due to litigants lacking the funds.
Table 3 Types of class actions
Types of cases appropriate

Example
for a class action
Workplace accidents There is a chemical spill and a group of workers suffer
from poisoning.
Medical malpractice Doctors use a surgical product or prescribe a

medication that is discovered to be dangerous.
Financial malpractice A bank charges thousands of customers a small fee for

financial advice that the bank did not actually provide.
Preventable natural A community has suffered a loss due to a preventable

disaster disaster, such as a fire or flood. A claim can only be
brought where the disaster was a result of someone
or a company’s negligence or malpractice. For example,
a bushfire being purposely lit, or where the government
did not take precautions to prevent a flood.
Faulty or dangerous goods A group of consumers buy the same product or use the
or services same service that is later found to be faulty or dangerous.
REAL WORLD EXAMPLE LESSON LINKS
Locked up residents receive $5 million You will learn about damages in

6A Damages as a remedy.
During the COVID-19 lockdowns, public housing towers attracted significant media
attention and scrutiny due to the severe restrictions imposed on residents, including You learnt about the need for
the inability to leave their apartments for any reason. A class action was initiated so legal representation in 5F Legal
that residents could claim compensation for this breach of their human rights. The legal practitioners in a civil dispute.
action aimed to hold the Victorian Government accountable for the alleged breaches You learnt about juries in a civil trial
of human rights and the negative consequences endured by the tenants. In response in 5D Judges, magistrates, and juries
to the legal action taken by residents, the Victorian Government settled the matter in a civil dispute.
by agreeing to pay $5 million in damages.
Adapted from ‘$5m settlement proposed in public housing towers class action’ (Croft, 2023) and ‘Notice of Proposed
Settlement in Towers class action’ (Department of Health Victoria, 2023)
USEFUL TIP
system to achieve the principles of
justice during a civil dispute’. These
tables showing the strengths and
limitations of class actions in relation
to each principle may help you evaluate
how class actions can uphold the
principles of justice.
Image: Javier Catano Gonzalez/Shutterstock.com

Figure 2 Public housing tower residents were successful in their class action

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Evaluating class actions’ ability to achieve the principles of justice
5G THEORY
S
ES
• Class actions may provide a remedy for those who • Fairness can depend on the settlement reached.
FAIRN
have suffered a loss that would be too small to If the amount of compensation received is less
recover individually in the courts, enabling these than anticipated, the group members may not
individuals to participate in the justice system, be compensated sufficiently.
thus promoting fairness. • The lead plaintiff is required to assume the risk and
• Class actions are managed by experienced and cost of the litigation on behalf of the entire group
impartial judges, therefore ensuring the case which may be seen as unfair.
is conducted efficiently and impartially. • Group members who ‘opt-out’ are not bound
• Class actions are usually supported by experienced by the settlement, meaning they will receive
lawyers, therefore ensuring the case is presented no benefit if the outcome is favourable for group
in the best possible light for all group members. members, limiting fairness.
• Juries are available in the Supreme Court • Juries are not available if a class action is
of Victoria for class actions, enabling the case commenced in the Federal Court, meaning the case
to be determined by an impartial cross-section will not be determined by an impartial cross-section
of society, achieving fairness. of society, limiting fairness.
• The use of litigation funders can enable more class
actions to be brought in circumstances where
individual litigants may lack the funds, allowing
for increased participation in the justice system,
therefore promoting fairness.
EQU
• If litigation funding is obtained, this may allow • If litigation funding is not obtained, a lead
ALI
a class action to commence as the costs are covered, plaintiff may be unwilling or unable to bear the
TY
ensuring group members are not disadvantaged costs associated with bringing a class action,
on the basis of their socioeconomic status. disadvantaging them on the basis of their
socioeconomic status.
• The lead plaintiff must assume the risk and cost
of the litigation on behalf of the entire group, whilst
the other group members are not required to do so.
This may be seen as unequal as the plaintiffs are
not treated in the same way.
• Individuals who cannot afford to initiate a civil • Access to justice may be reduced, depending on
claim by themselves can still access the justice the settlement reached and the share given to each
AC system by joining a class action. plaintiff, particularly where a large percentage of
CESS
• Class actions save the courts’ time and resources damages is provided to litigation funders.
by grouping together numerous claims, reducing • Class actions can be extremely costly and,
the number of cases the court would have to hear consequently, third-party funders are often required.
individually and promoting access to justice for Without these funders, some class actions may not
others by reducing court delays. commence, reducing access to the justice system.
• Litigation funding allows some litigants to bring • Class actions can take time to be heard,
a class action who could otherwise not afford to. sometimes several years, thus delaying access
to a potential remedy.
• Group members, other than the lead plaintiff,
may not understand the processes as they are not
directly involved with the legal representation,
reducing their ability to engage with the justice
system and its processes on an informed basis.

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Lesson summary
Bringing a case as a group provides people with the opportunity to pursue a case
5G QUESTIONS
they may have been previously unable to. Class actions have three main criterion:
1. there must be seven or more people claiming against the same defendant(s)
2. the claim must be in respect of, or arise from, the same, similar, or related
circumstances
3. the claim must give rise to a common issue of law or fact, meaning the same
issues must be decided by the court for all claims.
5G Questions
Question 1
A class action is when a group of people come together to initiate a single criminal case.
A. True
B. False
Question 2
Class actions are heard in the County Court only.
A. True
B. False
Question 3
lead defendant lead counsel lead plaintiff
The person who initiates the proceedings on behalf of the entire group is known as the .
Question 4
Which of the following is not a type of case where a class action is often appropriate?
A. Natural disaster, where a community has been affected by a fire.
B. Financial malpractice, where a group has been overcharged by a bank.
C. Customer malpractice, where a business sues its customers for leaving bad reviews.
D. Faulty goods or services, where a group of people get food poisoning from the same cafe.
Question 5
Tick the box to indicate whether the following statements are strengths or limitations of class actions.

I. Class actions may provide a remedy for those who have suffered a loss that would be too small
to recover individually in the courts.
II. Group members are able to seek justice where they otherwise may not have been able to due
to financial restraints.
III. Third-party litigation funders often receive a large proportion of damages before the wronged
parties receive compensation.

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Question 6
5G QUESTIONS
Class actions save the courts’ time and resources by grouping together numerous claims, reducing the number of cases the
court would have to hear individually and, thus, promoting .
Preparing for exams

Standard exam-style
Explain one reason for using class actions.
Adapted VCAA 2022 exam Section A Q2
Outline the criteria for initiating a class action.
Extended response
Question 9
Tick the box to indicate whether the following statements are strengths or limitations of class actions.

I. Class actions provide a remedy for those who have suffered a loss that would be too small
to recover individually in the courts, promoting fairness.
II. Individuals can still access justice and the legal system without all of the costs associated
with a trial.
III. Access to justice may be reduced depending on the settlement reached and the share given
to each plaintiff.
IV. Fairness can depend on the settlement reached. If the amount of compensation received is less
than anticipated, the group members may not be compensated sufficiently.
V. Class actions save time and resources for the courts by grouping numerous claims together,
therefore, reducing the number of cases that would need to be heard individually
Discuss the extent to which class actions uphold the principles of access and fairness.

A cruise ship, Slay on the Seas, served seafood that gave all the passengers who ate it food poisoning.
The passengers decided to initiate a class action against Slay on the Seas in the Magistrates’ Court.
Slay on the Seas is arming itself with lawyers to ensure its case is strong, as it has the onus of proof
to establish its innocence. The passengers are seeking the owners of the cruise ship to be fined for
their wrongdoings.
Identify three errors in the scenario above and, for each error, explain the correct civil process or procedure
that should have occurred.
Adapted VCAA 2020 exam Section A Q5

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5H Consumer Affairs Victoria (CAV)

• the purposes and appropriateness of institutions used to resolve disputes,

including Consumer Affairs Victoria, the Victorian Civil and Administrative
Tribunal and the courts
Image: cheapbooks/Shutterstock.com
5A 5B 5C 5D 5E 5F 5G 5H 5I 5J 5K
If you had an argument with a school friend,
would you go straight to your principal
to resolve it? Or would you initially try
to resolve the dispute in a less formal
3.2.10.1 3.2.10.2 3.2.10.3 manner? Most of the time, you would seek
Consumer Affairs Purposes of CAV Appropriateness the assistance of another friend to help
Victoria (CAV) of CAV resolve the argument before going to a
higher authority.
Lesson introduction
Many civil disputes in the Victorian community are relatively minor and can be
resolved without court action. For example, conflicts often arise in trade agreements
when consumers and traders clash on various issues. Therefore, providing fast,
low-cost, and informal mechanisms to resolve these smaller, commerce-related
disputes is critical in providing Victorians with access to the justice system.
Consumer Affairs Victoria (CAV) provides an avenue through which consumers
and traders can resolve their disputes.
Consumer Affairs Victoria (CAV) 3.2.10.1

Rather than resolving disputes through the courts, individuals may turn to
Consumer Affairs Victoria (CAV), a civil complaints body that offers free dispute
resolution services. Established by the Australian Consumer Law and Fair Trading LEGISLATION
Act 2012 (Vic), CAV is part of the Department of Justice and Community Safety
within the Victorian Government. Australian Consumer Law and Fair
Trading Act 2012 (Vic)
Table 1 Jurisdiction of Consumer Affairs Victoria Residential Tenancies Act 1997 (Vic)
Type of dispute Example

A complaint against a business by a • A consumer paid for a faulty product KEY TERM
consumer who believes the Australian and was denied a refund.
Consumer Law and Fair Trading Act 2012 Consumer Affairs Victoria (CAV)
• A family paid a plumber to repair
(Vic) has been breached. These disputes the Victorian civil complaints body
their bathroom but the quality
often involve a dispute about the supply that provides information and helps
of the work was poor.
of goods and services. resolve disputes to create a fair
• A motorist pays for car repairs but and competitive marketplace for
believes these repairs were not consumers and businesses.
completed correctly.
A complaint against a landlord by a tenant • A tenant requested property

who believes the Residential Tenancies repairs but the repair work was LESSON LINK
Act 1997 (Vic) has been breached. not completed.
You will learn more about the courts in
• A landlord gave notice to vacate 5J Resolving civil disputes in the courts.
a property but the tenant believed
the time frame in which to vacate
was insufficient.

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CAV mainly provides information and advice through its website, which contains
USEFUL TIP
detailed guides on how consumers and businesses can seek solutions to resolve
It is important to remember that CAV disputes. Individuals can also access CAV’s telephone-based information services
has limited jurisdiction compared
5H THEORY
where they may be referred to an alternate organisation that is better suited to deal
to other dispute resolution bodies,
with their matter. CAV may make these referrals as it can only assist in matters that
like VCAT or the courts. It will also
only assist with claims initiated by fall within its jurisdiction.
consumers and tenants, not business
owners and landlords, therefore,
it may not be appropriate for the
scenario you are given. Step 1: Step 3: Step 5:
Learn about Write to the Seek assistance from CAV
your rights people involved with the problem or complaint
LESSON LINK Step 2: Step 4:

Talk to the Take the
You learnt about conciliation in people involved matter further
5B Methods of resolving civil disputes.
Figure 1 Consumer Affairs Victoria’s step-by-step guide to resolving civil disputes
If an individual is unable to resolve a dispute alone, they may utilise CAV for dispute
LEGAL VOCABULARY resolution assistance. However, as CAV only provides dispute resolution services for
Deed of settlement a legal document consumers and tenants, it will not assist with complaints from businesses or landlords.
signed by parties to a dispute that states CAV directs parties to conciliation as the primary dispute resolution method to resolve
the agreed outcome of the dispute and disputes efficiently and constructively, as this process can occur in person or over the
is legally binding on the parties. phone. The conciliation process encourages parties to voluntarily resolve the dispute.
The final resolution is non-binding unless both parties sign a deed of settlement. CAV
cannot force either party to attend conciliation and does not have the power to make
a legally binding decision or enforce any agreement reached between the parties.
The worn and torn sneakers

Jiemba purchased a new pair of sneakers online from Sally’s Sneakers for $200. When
the sneakers arrived, they appeared worn and were in poor condition. Jiemba sent Sally’s
Sneakers an email asking for a refund. However, Sally’s Sneakers responded with ‘We
do not offer refunds’. Jiemba believes he is entitled to a refund and wants his $200 back.
In this hypothetical scenario, the dispute falls within CAV’s jurisdiction as the claim
is from a consumer (Jiemba) against a business (Sally’s Sneakers).
Purposes of CAV 3.2.10.2

Table 2 The purposes of Consumer Affairs Victoria
Purpose How Consumer Affairs Victoria achieves its purposes

Creating a fair CAV is responsible for registering and licensing certain
and competitive businesses and occupations, while also reviewing and
marketplace advising the Victorian Government on the consumer
protection framework.
Providing CAV provides information and advice to businesses,

information consumers, tenants, and landlords in relation to their rights
and advice and responsibilities, as well as any changes to relevant laws.
CAV’s resources are limited, meaning it cannot help resolve
every dispute brought by an individual. Therefore, CAV’s
website contains a detailed step-by-step guide on how
individuals should attempt to resolve their complaints before
seeking dispute resolution services from CAV.
Providing CAV uses conciliation services to help individuals resolve their

accessible dispute disputes with the assistance of a third party that has specialised
resolution services knowledge of disputes of that type. These services can occur
in person or over the phone, making them highly accessible.
Continues →

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Table 2 Continued
Purpose How Consumer Affairs Victoria achieves its purposes
5H THEORY
Providing an CAV provides free information and dispute resolution
avenue to resolve services to assist individuals and enforce compliance with
minor disputes consumer laws. It also experiences fewer delays than other
efficiently and dispute resolution services, such as the courts. Therefore,
with minimal costs CAV allows individuals to use the information on its website
and its conciliatory services to uphold their rights outside
of the courts.
Appropriateness of CAV 3.2.10.3

Not all civil disputes are appropriate for CAV to resolve due to various factors,
including its jurisdiction, purpose, and the parties involved.
Table 3 The appropriateness of Consumer Affairs Victoria
Circumstances when Consumer Circumstances when Consumer USEFUL TIP

Affairs Victoria is appropriate Affairs Victoria is not appropriate It is important for you to identify
• The dispute falls within CAV’s • The dispute does not fall under whether CAV is an appropriate
jurisdiction. CAV’s jurisdiction. institution for resolving a particular
dispute. In a SAC or exam, you should
• Parties have attempted to resolve • Parties have not attempted to resolve
be able to discuss reasons why CAV
the dispute themselves. the dispute by themselves.
is appropriate or not appropriate
• Both parties are willing to attend • One or both parties are not willing to in relation to a provided scenario.
and participate in conciliation. attend and participate in conciliation.
• Parties wish to avoid costs and delays • There is a better method of resolving
associated with resolving disputes the dispute, including via an alternate LESSON LINKS
through the courts or VCAT. organisation that is better suited
to dealing with the matter. You will learn more about VCAT
• Parties are willing to settle, in 5I The Victorian Civil and
therefore increasing the likelihood • The court or VCAT has already ruled Administrative Tribunal (VCAT).
of a successful resolution. on the matter, or the case is currently
You learnt about class actions in
• Both parties are willing to comply waiting to be heard.
5G Class actions.
with the agreement reached during • The dispute is initiated by a landlord
conciliation. or business.
• The dispute is a class action.
• One or more parties want a legally
binding decision.
A time frame tango between Evan and Simone

Evan is renting an apartment in Brunswick from Simone, the landlord. Simone has given
him 60 days to vacate the property for no reason. Legally, Simone must give Evan 120 days’
notice. They tried to negotiate a suitable time period but were unsuccessful, and neither
party wishes to pay the costs associated with VCAT or the courts.
This case is appropriate for CAV as:
• it falls within CAV’s jurisdiction.
• the parties have tried to negotiate a time frame themselves.
• neither party wishes to pay the costs associated with an alternative dispute resolution Figure 2 Consumer Affairs Victoria is
appropriate for Evan’s dispute against
institution, such as the courts or VCAT. his landlord
USEFUL TIP
dispute’. These tables showing the strengths and limitations of CAV in relation to each
principle may help you evaluate how CAV can uphold the principles of justice.

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Evaluating CAV’s ability to achieve the principles of justice
5H THEORY
S
ES
• CAV provides a quick method of dispute resolution • CAV cannot force parties to attend and participate
FAIRN
that allows parties to reach a just outcome without in conciliation, which can be unfair if one party
experiencing the stress and delay associated is willing to reach a resolution through conciliation
with a trial, ensuring impartial processes, thereby but the other is not.
achieving fairness. • CAV cannot impose a legally binding resolution,
• CAV is free, which ensures parties that who cannot meaning there is a risk of non-compliance
afford to bring their claim through the courts with agreements reached during conciliation,
or VCAT are still able to participate in the justice limiting fairness.
system and receive a just outcome to their dispute.
• CAV’s conciliation process enables parties
to attempt to resolve their dispute themselves
with the assistance of a conciliator, potentially
leading to a fair outcome where both parties
reach a beneficial resolution.
EQU
• CAV uses a conciliator to facilitate discussions • CAV has limited jurisdiction and is only available
ALI
between parties, which can ensure both parties as a means of dispute resolution for a small
TY
have the same opportunity to present their proportion of civil matters. Thus, not all parties
perspective and reach a mutually acceptable to a civil dispute have the same ability to obtain
resolution, achieving equality. CAV’s services.
• CAV provides free services to all members of the • CAV has limited jurisdiction, meaning many disputes
Victorian public and is therefore an accessible cannot be resolved using CAV’s conciliation, limiting
AC method of dispute resolution. access to justice.
CESS
• CAV’s conciliation process can be conducted over • CAV’s conciliation process may not result in an
the phone, enabling individuals across Victoria agreement to resolve the dispute, limiting access
to access this service. to justice.
• CAV uses the informal process of conciliation,
which is conducted in a less intimidating manner
than a trial, potentially encouraging individuals
to willingly pursue their civil claims and engage
with the justice system.
• As CAV’s conciliation process is conducted
in private, this promotes access to justice where
parties do not wish to resolve the dispute through
a public trial.
Lesson summary
• CAV is a civil complaints body that has jurisdiction to help resolve disputes
USEFUL TIP
between consumers and businesses, and tenants and landlords.
You may face questions that require
• CAV is primarily concerned with assisting and educating consumers and tenants.
you to evaluate CAV without needing
to specifically refer to the principles • CAV offers a wide range of dispute resolution services, including online
of justice (POJ). However, this does information and advice.
not prevent you from including links
• CAV directs parties to conciliation as a primary method of civil dispute resolution.
to the POJ in your in your answer.

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5H Questions
5H QUESTIONS
Question 1
CAV is an alternate dispute resolution institution that may be used for some civil complaints.
A. True
B. False
Question 2
CAV will only assist with disputes:
A. from landlords against tenants, and businesses against consumers.
B. from tenants against landlords, and consumers against businesses.
Question 3
Which of the following statements is not correct about CAV?
A. CAV is free.
B. CAV will only assist with cases where the parties have attempted to resolve the disputes themselves.
C. Outcomes from CAV are legally binding.
D. CAV can advise the government about consumer affairs laws.
Question 4
In which of the following circumstances is CAV appropriate?
A. The dispute falls within CAV’s jurisdiction.
B. The parties have not attempted to resolve the dispute themselves.
C. One party is willing to reach an agreement but the other party is not.
D. Both parties wish to avoid the costs and time associated with the courts.
E. The party with the complaint is a landlord against their tenant.
Question 5
Which of the following statements are correct about the purposes of CAV?
A. CAV creates a fair and competitive marketplace.
B. CAV provides dispute resolution services that are legally binding.
C. CAV provides information and advice to businesses, consumers, tenants, and landlords in relation to their
rights and responsibilities.
D. CAV provides free services to all Victorians as it has unlimited jurisdiction to hear all types of disputes.

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Question 6
Tick the box to indicate whether the following statements are strengths or limitations of CAV in its ability
5H QUESTIONS
to achieve the principles of justice.

I. CAV cannot impose a legally binding resolution, meaning there is a risk of non-compliance
with agreements reached during conciliation.
II. CAV’s conciliation process may not result in the parties agreeing on a resolution.
III. CAV is free, which ensures parties who cannot afford to have their case heard by the courts
or VCAT are still able to resolve their dispute.
IV. CAV has limited jurisdiction and is only available as a means of dispute resolution for a small
proportion of civil matters.
V. CAV uses the informal process of conciliation, which is conducted in a less intimidating manner
compared to a trial.
Question 7
mediation conciliation arbitration
CAV predominantly uses as a method of resolving civil disputes within its jurisdiction.
Preparing for exams

Standard exam-style
Jordy is a tenant who sustained a dislocated shoulder and broken leg when he was hit by a faulty railing that
fell from the balcony of his rental property. He is seeking compensation for his injuries against the landlord
and wants a legally binding solution.
Explain one reason why CAV may not be the most appropriate institution to resolve Jordy’s dispute.
Atticus, an unemployed university student, is in a dispute with his landlord, Caterina, who has not attempted
to fix a mould issue in the rental property. Atticus has been friends with Caterina for 10 years and has tried
to speak to her about the issue, but she keeps avoiding the situation.
a. Describe one purpose of Consumer Affairs Victoria. 2 MARKS
b. Explain why Consumer Affairs Victoria is an appropriate institution to help Atticus resolve this dispute. 4 MARKS

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Extended response
5H QUESTIONS
Ivy bought a white bed frame from Bedroom Bliss’ online store for $900. When the bed frame arrived,
it was red instead of white. Ivy contacted Bedroom Bliss over the phone but was told the business no longer
sold the bed frame and it refused to refund her money. Ivy shared her story with a local newspaper and,
since then, 15 other people have come forward with similar stories. Ivy wants to claim her entitled refund
but is unsure about spending her time and money doing so.
Question 10
Tick the box to indicate whether each of the following statements demonstrates CAV as an appropriate
or not appropriate institution for resolving the dispute between Ivy and Bedroom Bliss.

I. Ivy’s dispute falls within CAV’s jurisdiction, which provides CAV with the power
to resolve disputes between consumers and businesses, like Ivy and Bedroom Bliss.
II. CAV is free and offers efficient dispute resolution processes, such as conciliation,
whereby Ivy and Bedroom Bliss would attempt to resolve the dispute either in person
or over the phone.
III. Ivy’s dispute may become a class action as 15 other people have come forward
with similar stories about Bedroom Bliss’ refusal to offer refunds.
IV. CAV has no power to impose a legally binding decision, meaning it cannot force
Bedroom Bliss to provide Ivy with a refund.
Discuss the appropriateness of Consumer Affairs Victoria (CAV) in resolving the dispute between Ivy
and Bedroom Bliss.
Question 12
Tick the box to indicate whether the following statements are strengths or limitations of CAV in its ability
to achieve the principles of fairness and equality.
Statements Strengths Limitations

I. CAV has limited jurisdiction and is only available as a means of dispute resolution for a small
proportion of civil matters. Thus, the ability to access CAV’s services is not given equally
to all civil parties.
II. CAV is free, which ensures parties that are unable to afford a court hearing or VCAT are still
able to receive a just outcome to their dispute.
III. CAV uses a conciliator to facilitate discussions between parties, which can ensure both parties
have the same opportunity to present their perspective and reach a mutually beneficial resolution.
IV. CAV cannot force parties to attend and participate in conciliation, which can be unfair if one
party is willing to reach a resolution but the other is not.
V. CAV cannot impose a legally binding decision, meaning there is a risk of non-compliance with
a resolution reached by CAV’s conciliation.
VI. CAV’s conciliation process enables parties to attempt to resolve the dispute themselves with
the assistance of a conciliator, which may lead to a fair outcome where both parties agree
on a resolution.

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Discuss the extent to which CAV helps the civil justice system achieve the principles of fairness and equality.
5H QUESTIONS

Daisy lives in an apartment complex and has made numerous complaints to her landlord, Max, about the
broken elevator, but he has done nothing to fix it. Daisy has spoken to 10 other tenants who wish to take
the matter further. Her best friend has told her to take the case to CAV.
a. Describe one reason for using class actions, with reference to Daisy’s situation. 3 MARKS
b. Advise Daisy about whether CAV is an appropriate body to help her resolve this dispute. 4 MARKS

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5I The Victorian Civil and

Administrative Tribunal (VCAT)

5A 5B 5C 5D 5E 5F 5G 5H 5I 5J 5K
Image: Rawpixel.com/Shutterstock.com
Has a business sold you a faulty product?

Or provided an unsatisfactory service?
3.2.11.1 3.2.11.2 3.2.11.3 When these situations arise, you may
The Victorian Civil Purposes of VCAT Appropriateness be left wondering what you can do or where
and Administrative of VCAT you can go to get a remedy…well, never fear,
Tribunal (VCAT) VCAT is here! With the ability to hear and
determine a range of different civil disputes,
VCAT might just be the appropriate dispute
resolution body for you!
Lesson introduction
The courts are not the only institution that have the power to provide a remedy
to parties in a civil dispute. The Victorian Civil and Administrative Tribunal (VCAT)
is a less formal, less costly, and more timely dispute resolution body that can also
help parties resolve their civil disputes. VCAT utilises a range of different dispute
resolution methods to assist disputing parties in reaching a resolution, providing
both binding and non-binding outcomes.
The Victorian Civil and Administrative

Tribunal (VCAT) 3.2.11.1
Established and governed by the Victorian Civil and Administrative Tribunal Act LEGISLATION
1988 (Vic), the Victorian Civil and Administrative Tribunal (VCAT) is composed
of the President, who is a Supreme Court justice, Vice-Presidents, who are County Victorian Civil and Administrative
Tribunal Act 1988 (Vic)
Court judges, and other VCAT members. VCAT has the power to hear and resolve
a wide range of civil and administrative disputes. However, VCAT is not suitable
for complex claims, such as class actions, defamation or personal injury, or disputes
KEY TERM
claiming very large amounts of compensation. VCAT also has exclusive jurisdiction
over some disputes, such as domestic building disputes, meaning these cases must Victorian Civil and Administrative
be heard and determined by VCAT and not in the courts. Tribunal (VCAT) a dispute resolution
body that has the power to hear and
VCAT has five divisions, with each division handling similar types of cases grouped
determine certain types of civil and
into lists. This is due to the fact that VCAT is a combination of several separate administrative disputes.
specialised tribunals, brought together as one ‘super-tribunal’.
LEGAL VOCABULARY
Residential Tenancies division:
Civil division: Administrative dispute
• Residential tenancies list
• Civil claims list a dispute involving an administrative
• Building and Property list decision-maker such as a government
Administrative division:
• Owners corporations list
• Legal practice list VCAT agency or statutory authority.
• Review and regulation list Exclusive jurisdiction the legal
Human Rights division:
• Guardianship list authority of a body, such as a court
Planning and Environment division:
• Human rights list or tribunal, to determine a legal case
• Planning and environment list
that no other institutions have the
Figure 1 VCAT’s five divisions and specific lists authority to hear.

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Table 1 Examples of VCAT’s jurisdiction
LESSON LINKS Type of disputes Examples

5I THEORY
You learnt about class actions in Claims by residential landlords and • A landlord claiming unpaid rent.
5G Class actions. tenants where the Residential Tenancies • A tenant challenging the time frame
You learnt about mediation and Act 1997 (Vic) has been breached. These in which they have been directed
conciliation in 5B Methods of resolving disputes are resolved in the Residential to vacate a rented property.
civil disputes. Tenancies division.
Claims of unlawful discrimination and • A worker claiming they were

breaches of the Equal Opportunity Act dismissed due to their religious beliefs.
2010 (Vic). These disputes are resolved • A woman claiming she was refused
in the Human rights division. service in a cafe because she was
breastfeeding.
Claims by businesses and consumers • A consumer seeking a remedy from

that allege the Australian Consumer Law a business that provided faulty goods
and Fair Trading Act 2012 (Vic) has been and did not take enough care to
breached. These disputes are resolved ensure they were fit for purpose.
in the Civil division. • A consumer claiming a business
deliberately misled them about the
quality of a product.
• A buyer claiming a car salesman
made false statements about a car’s
maintenance history.
• A business claiming another business
they sold goods to has not paid the
outstanding debt for these items.
Claims related to building and • A property owner claiming a builder

construction disputes. These disputes has incorrectly built or constructed
are resolved in the Civil division. something.
• A builder claiming a property owner
has not paid them what they are owed.
Fast tracked mediation and hearing Mediation Compulsory conferences

• For goods and services claims of up • The parties will negotiate in the presence • A confidential meeting where the parties
to $10,000, parties will be invited to of a mediator in an informal environment will attempt to settle the dispute before
attend mediation to try and resolve their to attempt to reach a mutually agreed a final hearing needs to take place.
dispute. If this is unsuccessful, a VCAT resolution. The mediator does not make • Compulsory conferences use a
OR OR
member will schedule a VCAT hearing a decision in the case and any agreement conciliation process, meaning the VCAT
for another day. reached is not legally binding unless member will make suggestions to assist
• The VCAT hearing will be free and operate a deed of settlement is entered into. the parties in resolving their dispute.
in the same way as a final hearing. • Mediators can be a VCAT member
or a mediator appointed by VCAT.
If the above methods are

unsuitable or unsuccessful
Final hearing Appealing a VCAT decision

• If the dispute has not been resolved, a final hearing will • VCAT decisions can only be appealed on a question of law.
be scheduled. This means that the party believes VCAT has incorrectly
• At a final hearing, both parties will present their case, interpreted and applied the law.
ask questions and provide evidence. The VCAT member • VCAT appeals will be heard in the Court of Appeal if the
presiding over the hearing will then hand down a final order. decision was made by the VCAT president or vice president.
• Final orders can include monetary compensation, an order Appeals of decisions made by any other VCAT member are
to undertake or restrain from partaking in a particular act, heard in the Supreme Court – Trial Division.
or a dismissal of the claim. • Parties need leave to appeal VCAT decisions.
• VCAT decisions are final and can be enforced by the courts.
Figure 2 Dispute resolution methods used at VCAT

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DEEP DIVE
What disputes fall outside of VCAT’s jurisdiction?
5I THEORY
There are certain types of cases that VCAT cannot hear, such as:
• class actions
• cases where parties are residents from different states
• cases involving the exercise of federal jurisdiction
• cases where the Commonwealth of Australia is a party
• cases involving the Australian Constitution.
Adapted from ‘What VCAT can’t do’ (Victorian Civil & Administrative Tribunal, n.d.)
Purposes of VCAT 3.2.11.2

VCAT is committed to providing Victorians with a low-cost, efficient, accessible,
and impartial dispute resolution process. VCAT achieves its purposes by providing
high-quality alternative dispute resolution processes.
Table 2 Purposes of VCAT
Purpose How VCAT achieves this purpose

To provide low-cost dispute • Parties do not require legal representation and
resolution services can represent themselves, avoiding the costs
of legal representation. In some disputes, legal
representation is not permitted at all.
$
• As of 2022, some claims have no hearing fees,
such as claims for goods and services that are LEGAL VOCABULARY
less than $15,000. Hearing fees the costs parties incur
• VCAT fees are low, particularly when for each day of a hearing.
compared with the courts. This is because
some VCAT lists have no application fee and
fees may be waived or postponed for those
in financial hardship.
• VCAT’s fees are in a three-tier model

whereby, depending on the party initiating
the proceedings, they may pay:
– standard application fees.
– corporate application fees which are
higher than the standard fee.
– no fees for Health Care Card holders
in some cases.
To provide efficient dispute • Hearings are shorter as VCAT is not bound

resolution services by the same rules of evidence and formal
procedures as the courts. Many cases can be
resolved relatively quickly through mediation LEGAL VOCABULARY
or compulsory conferences as they are more
Compulsory conference a private
informal and less time-consuming means meeting between parties in a civil
of dispute resolution. dispute to discuss ways to resolve
• For cases that proceed to a hearing, there are their dispute with the assistance
fewer pre-hearing procedures compared to a of a VCAT member.
court, so there is less time between initiating
a claim and receiving a resolution at VCAT.
• VCAT provides fast-track mediation services
and hearings whereby the mediation takes
less than an hour. If unsuccessful, a hearing
is arranged for another day for goods and
services disputes up to $10,000.
Continues →

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Table 2 Continued
Purpose How VCAT achieves this purpose

5I THEORY
To provide accessible dispute • VCAT’s low costs ensure more people can
resolution services access dispute resolution bodies and remedies.
• There are multiple VCAT locations throughout
Victoria, in both metropolitan and rural areas.
• VCAT uses phone and video conferences for
some hearings, mediations, and compulsory
conferences, improving accessibility as parties
do not have to travel long distances and
arrange transport to achieve a resolution.
• VCAT uses informal procedures, especially
in comparison to courts, which are more easily
understandable for parties. For example, there
are no strict rules of evidence and procedure
during the hearing.
• VCAT does not require parties to have
legal representation, further lowering costs
for parties.
• VCAT assists parties to prepare a case, with
instructions on how to lodge their application,
prepare their evidence, and what to bring
to a hearing available on their website,
by telephone and in person.
DEEP DIVE
Fees at VCAT
Whilst VCAT aims to provide low-cost dispute resolution services, there are still fees
associated with some VCAT lists. For example, the standard fees for disputes related to
goods and services require parties to pay application fees, hearing fees, and additional fees.
Table 3 VCAT standard fees for disputes related to goods and services as of
1 July 2022
Type of fee Example

Application fee Claims between $3,001–$15,000 involve
an application fee of $224.80 for individuals
and $321.10 for companies and businesses.
Hearing fee Hearing fees for day one for claims exceeding
$100,000, or with no specific dollar value,
are $374.60.
There are no hearing fees for day one for claims
below $100,000, however, parties must pay
$374.60 for each following day (days two,
three, and four).
Additional fees and services Application for hearing after final orders have
been made involves a fee of $385.30.
Copy of a document from a VCAT file involves
a fee of $0.60 per page.
Adapted from ‘Fees at VCAT’ (VCAT, n.d.)

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Appropriateness of VCAT 3.2.11.3

When considering whether VCAT is an appropriate body to resolve a civil dispute,
5I THEORY
there are a range of factors the parties should consider.
Table 4 Appropriateness of VCAT
Circumstances when VCAT Circumstances when VCAT USEFUL TIP

is appropriate is not appropriate It is important that you are able
• The dispute falls within VCAT’s • The case does not fall within VCAT’s to identify whether VCAT is an
jurisdiction. jurisdiction. appropriate institution to help resolve
a particular dispute. In a SAC or the
• Parties prefer an informal dispute • One or both parties are unwilling
exam, you should be able to discuss
resolution process. to negotiate to try and resolve their
reasons why VCAT is appropriate,
• Parties want to try to resolve the dispute, or parties have tried and or not appropriate, in relation
dispute themselves and have some failed to negotiate their dispute. to a scenario when one is provided.
control over the outcome. • The case is a class action.
• Parties desire an option to negotiate • Parties want greater ability to appeal.
but, if this is unsuccessful, wish • Parties prefer legal representation
to have a legally binding decision to conduct their case.
enforced in a hearing.
• The claim is for a very large amount
• Both parties are willing to comply of damages, meaning the court may
with the agreement reached during be more appropriate.
mediation or a compulsory conference.
• The case involves complex legal issues
• Parties are willing to appeal only and it is better resolved through more
on questions of law. formal court procedures.
• Parties want a low-cost and time- • There is a better way to resolve the
efficient resolution to their dispute. dispute, such as through an alternate
institution that is better suited
to deal with the matter.
Frozen in time
Abdul, the owner of ‘Time for a Watch?’ sold an expensive, vintage watch to Shannon.
When she tried to wind it, the dials did not work and she noticed that the watch was
12
in fact a fake. When she contacted him about her knock-off watch, he stated that she
would have to sue him to get her money back. As Shannon spent most of her savings
on the watch, she wants to resolve this dispute with minimal costs. She sent Abdul 9 2 NOV 3
an email to try and negotiate but he replied that he is not willing to negotiate a settlement.
This case may not be appropriate for VCAT because:
6
• Abdul is not willing to negotiate.
• the watch is expensive, Shannon will likely be seeking a large amount of damages
and therefore, the court may be more appropriate.
• mediation and compulsory conferences are voluntary, however, it seems Abdul Figure 3 Shannon wants to resolve a dispute
will not voluntarily attend these processes. against Abdul after he sold her a faulty watch
However, this case may be appropriate for VCAT because:

• the dispute falls within VCAT’s jurisdiction, as it can hear disputes between a consumer
and a business.
• VCAT provides low-cost dispute resolution services, enabling Shannon to resolve
the dispute with minimal costs.
• VCAT can provide a binding order in the hearing, ensuring Abdul cannot go back
on his word and not pay Shannon damages or at least refund her watch.

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DEEP DIVE
Legal representation at VCAT

5I THEORY
Parties do not require legal representation at VCAT and can represent themselves as
the processes and procedures are less complex than the courts. However, some people
have an automatic right to be represented, meaning they do not need to seek VCAT’s
permission to hire legal representation. These parties, which include children, people
involved in residential tenancies disputes, and the government, must organise and pay for
USEFUL TIP legal representation themselves. Additionally, if one party in a case has the automatic right
to legal representation, the other party also has the right to choose to be represented.
An important key skill in Area of
Study 2 of Unit 3 VCE Legal Studies On the other hand, parties who do not have an automatic right to legal representation
is to ‘evaluate the ability of the are required to seek permission from VCAT to be represented by legal representation.
civil justice system to achieve the The party must explain why they want to hire legal representation, although, if VCAT
principles of justice during a civil rejects their request, they must be ready to represent themselves. Having representation,
dispute’. These tables showing the or not, does not preclude a party from seeking advice prior to coming to VCAT. Whether
strengths and limitations of VCAT advice is sought prior to coming to VCAT or representation is used at VCAT, this is a cost
in relation to each principle may help that the parties must bear. VCAT rarely makes an order for one party to pay another’s
you evaluate how VCAT can uphold legal costs, even when a party is successful at a hearing, unlike in court proceedings.
the principles of justice. Adapted from ‘Legal and professional representation’ (VCAT, n.d.)
Evaluating VCAT’s ability to achieve the principles of justice
S
ES
• Outcomes at VCAT hearings are legally binding, • VCAT does not utilise juries and, therefore, does
FAIRN
promoting fairness as it ensures the parties abide not allow parties to have a trial by their peers.
by VCAT’s decisions. This may seem unfair as the case is not determined
• VCAT encourages parties to resolve matters by those who represent a cross-section of society.
through methods such as mediation which allows • VCAT does not require legal representation,
parties to have control over the outcome. This may although some parties may choose to be legally
lead to an agreement that parties perceive as more represented. This may result in an unfair outcome
fair as they have mutually agreed on the outcome. where one party is unable to represent their case
• Cases at VCAT are resolved in a quick and efficient in the best possible light.
manner, promoting fairness because parties are • There is a limited right to appeal VCAT decisions,
able to participate in the justice system within which may be seen as unfair to parties dissatisfied
a reasonable time frame. with the outcome of their case.
• VCAT members are impartial and independent, • VCAT does not have strict rules of evidence and
ensuring procedures are conducted in an unbiased procedure like the courts, and as such, its processes
manner, promoting a just outcome to the dispute. may not be as rigorous, which may be perceived
as unfair.
EQU
• During a hearing, a VCAT member may take • VCAT has limited jurisdiction and cannot resolve
ALI
special measures to allow those with significant large and complex disputes, such as class actions
TY
social, cultural, or physical disadvantages to or defamation. Thus, it is not equally available for
participate fully, ensuring equitable processes all civil disputes.
and therefore, promoting equality. • If a party is self-represented, they may be at
• Both sides have equal opportunity to present their a disadvantage as a result of being unable to
case during mediation, a compulsory conference, present all relevant evidence to prove their case.
and a final hearing. This creates an inequality between the parties.
• VCAT members are impartial and independent, • VCAT members cannot act as an advocate for,
ensuring procedures are conducted in an unbiased or give legal advice to, self-represented parties
manner, upholding equality. which may result in one party being at a
disadvantage to another.

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5I QUESTIONS
• VCAT provides low-cost dispute resolution • VCAT can only resolve matters within its
services, allowing more people to be able to afford jurisdiction, meaning some civil matters must
AC to bring their civil claims to VCAT and engage proceed to the courts, reducing access to justice
CESS
with the justice system, which promotes access for some, such as if they cannot afford to take the
to justice. matter to court.
• VCAT’s processes and procedures are less formal • Some fees for certain types of claims at VCAT
than the courts, which promotes access to justice remain high, such as application and hearing
as parties are more likely to understand proceedings fees, which may make VCAT inaccessible for
and engage with processes on an informed basis. some people.
• VCAT aims to be accessible to all Victorians • Access to appeals is limited as appeals can only
by using phone and video conferences for some be made on a question of law.
hearings, mediations, and compulsory conferences. • As legal representation is not required, or in some
• VCAT does not require parties to obtain legal circumstances not permitted, this may limit the
representation, remaining accessible to those accessibility of proceedings to those whose first
who cannot afford legal representation. language is not English or those of low literacy.
• VCAT provides interpreting and translation services
free of charge, allowing those who do not speak
English to engage with the justice system on and
informed basis, promoting access.
Lesson summary
• VCAT is a dispute resolution body offering low-cost, efficient, and less formal
dispute resolution services.
• The tribunal has jurisdiction to hear certain types of disputes, such as
disputes about residential tenancies, breaches in consumer law, and unlawful
discrimination.
• VCAT refers parties to attend mediation or a compulsory conference to resolve
the dispute themselves in the presence of an independent third party. However,
if an agreement is not reached, the matter will go to a VCAT hearing where
a legally binding decision will be imposed.
• VCAT is not appropriate in all cases, for example, where it does not fall within
VCAT’s jurisdiction or where the case involves highly complex legal issues.
5I Questions
Question 1
VCAT is a dispute resolution body that has the power to hear all types of disputes.
A. True
B. False
Question 2
Which of the following types of cases is outside of VCAT’s jurisdiction?
A. Residential tenancies
B. Discrimination
C. Personal injury
D. Goods and services

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Question 3
Which of the following statements are correct about VCAT? (Select all that apply)
5I QUESTIONS
A. VCAT does not have the power to impose a legally binding decision on parties at a hearing.
B. VCAT’s compulsory conferences involve a conciliator who has specialised knowledge of the
type of dispute in question.
C. VCAT may direct parties to attend mediation to come to a non-legally binding agreement.
Question 4
Which of the following statements are correct about the purposes of VCAT? (Select all that apply)
A. To provide low-cost dispute resolution services.
B. To remain accessible to all Victorians, for every kind of civil dispute that arises.
C. To provide efficient dispute resolution services with minimal delays.
D. To protect consumer rights by ensuring businesses are always held accountable.
Question 5
Tick the box to indicate whether the following statements are strengths or limitations of VCAT’s ability

I. VCAT encourages parties to resolve matters through methods such as mediation, which allows
them to have control over the outcome. Parties may therefore regard the outcome as fair
considering they have mutually agreed on the outcome.
II. VCAT has limited jurisdiction and cannot resolve large and complex disputes, such as class
actions or defamation. Thus, it is not equally available for all civil disputes.
III. VCAT members cannot act as an advocate for, or give legal advice to, self-represented parties
which may result in one party being at a disadvantage to another.
IV. VCAT provides low-cost dispute resolution services, allowing more people to be able to afford
to bring their civil claims to VCAT and engage with the justice system.
V. If a party is self-represented, the VCAT member can assist the party to give them a reasonable
opportunity to present their case, enabling parties to be on more equal footing.
Question 6
VCAT is appropriate for:
A. class action lawsuits.
B. parties who wish to attempt to resolve the disputes themselves.
C. cases involving highly complex legal issues.
Question 7
VCAT has the power to hear certain types of civil and criminal disputes.
A. True
B. False

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Preparing for exams

Standard exam-style
5I QUESTIONS
Describe how one purpose of the Victorian Civil and Administrative Tribunal aims to uphold the principle
of access.
Kerry paid Michael $3,000 to repair her car. She was unsatisfied with the work and when she complained
to Michael, he shouted at her and said it was not his problem. Michael has been ignoring Kerry’s emails and
phone calls.
Explain one reason why the Victorian Civil and Administrative Tribunal may not be an appropriate institution
to resolve Kerry’s dispute.
SuperHeroes R Us is a business that rents superhero-themed costumes to the public. Henry rented 10 costumes
from SuperHeroes R Us. When he returned them, all the costumes were torn and damaged. The business wrote
an email to Henry who said he would be willing to negotiate a settlement. Both parties would prefer the matter
to be resolved in an informal setting.
Outline two methods of dispute resolution that the Victorian Civil and Administrative Tribunal may use to help
SuperHeroes R Us and Henry resolve their dispute.
Extended response
Brisa leased an apartment building and has recently noticed various serious cracks in the walls of her
apartment. She has raised the issue with Tony, her landlord, but he has been inconsistent with his
communication and has failed to take action. Brisa is unsure what to do as she cannot afford to initiate
her claim through the courts.
Question 11
Tick the box to indicate whether each of the following statements demonstrates why VCAT is appropriate
or not appropriate in resolving the dispute between Brisa and Tony?

I. If Brisa and Tony fail to negotiate a resolution themselves, a hearing will be
conducted whereby a VCAT member will impose a legally binding solution on the
parties. Therefore, if Brisa is successful, Tony cannot go back on his word and must
fix the cracks in the wall.
II. VCAT offers low-cost dispute resolution services which is ideal for Brisa as she
cannot afford to initiate her claim through the courts.
III. Some fees for certain types of claims at VCAT remain high due to application and
hearing fees. This may make VCAT inaccessible for Brisa who may not be able
to afford VCAT.
IV. The dispute falls within VCAT’s jurisdiction as Brisa is a tenant complaining about
cracks in the wall to Tony, her landlord.

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Discuss the appropriateness of the Victorian Civil and Administrative Tribunal in resolving the dispute
between Brisa and Tony.
5I QUESTIONS

Use the following information to answer question 13 and 14.
Hazel contracted Kabir, a builder, to complete renovations of her kitchen. When the renovations were
completed, Hazel noticed that Kabir had made a number of errors, such as painting the cupboards the
wrong colour. Kabir and Hazel attended conciliation through Domestic Building Dispute Resolution
Victoria (DBDRV) but this failed as Kabir did not take the negotiations seriously. Hazel wants to resolve
the dispute as soon as possible.
Question 13
Which of the following statements are correct about the appropriateness of VCAT and CAV to resolve the
dispute between Hazel and Kabir? (Select all that apply)
A. CAV is more appropriate as Hazel and Kabir have already tried conciliation through the Domestic Building
Dispute Resolution Victoria (DBDRV) which failed.
B. VCAT is more appropriate as it can offer Hazel and Kabir a legally binding solution to their dispute
through a hearing process.
C. VCAT is more appropriate as the processes and procedures are more formal compared to CAV, which
is suitable as Kabir failed to take the conciliation seriously.
D. CAV is more appropriate as it can impose an order, such as for Kabir to pay Hazel a sum of money for
the number of errors, whereas VCAT cannot.
‘The Victorian Civil and Administrative Tribunal (VCAT) is a more appropriate body than Consumer Affairs
Victoria (CAV) to resolve this dispute.’
With reference to Hazel and Kabir’s dispute, discuss the extent to which you agree with this statement and
justify your response.

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5J Resolving civil disputes in the courts


5A 5B 5C 5D 5E 5F 5G 5H 5I 5J 5K
Image: Mod-X/Shutterstock.com
♫ Row, row, row… a breach, the plaintiff’s

unhappy! If your case is not resolved,
3.2.12.1 3.2.12.2 3.2.12.3 a court’s the place to be! ♫
The courts Purposes of the courts Appropriateness Though the courts may not be as jovial as a
of the courts nursery rhyme, they do provide a legitimate
means of seeking a remedy when a civil
dispute arises between two parties.
Lesson introduction
The courts are a central component of the civil justice system and perform various
roles to ensure the smooth and efficient delivery of dispute resolution. Though there
are alternative civil dispute resolution bodies, such as VCAT and CAV, that are also
fundamental in the resolution of many civil disputes, the courts possess the highest
level of authority and jurisdiction, making them more appropriate for some disputes.
LESSON LINKS
You learnt about VCAT and CAV
in 5I The Victorian Civil and
Administrative Tribunal (VCAT) and
5H Consumer Affairs Victoria (CAV).
You learnt about the civil jurisdiction
of the courts in 5C The Victorian court
hierarchy and civil disputes.
Figure 1 The courts can resolve a wide range of civil disputes
The courts 3.2.12.1

From pre-trial procedures to final hearings and trials, the courts facilitate multiple
processes involved in resolving a civil claim. Usually, parties are first advised to attempt
to resolve their disputes through other bodies, such as VCAT and CAV, or methods, like
mediation, conciliation, and arbitration, only using the courts as a last resort. This
is due to the significant cost and time factors associated with resolving a civil dispute
via a court hearing or trial.
Like other dispute resolution bodies, the courts employ a range of different dispute
KEY TERM
resolution methods when resolving a civil case, though the main method utilised by
the courts is judicial determination. As judicial determination occurs during a final Judicial determination a method
hearing or trial, judges can utilise their case management powers to order mediation of dispute resolution whereby a judge
in an attempt to encourage the early determination of a case. Courts, or magistrate will make a legally
binding decision after the parties
such as the Magistrates’ Court, will also refer parties to arbitration when resolving
present their cases at a trial or hearing.
civil claims under $10,000.

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DEEP DIVE
The process of a civil dispute being heard in a court

5J THEORY
1. A civil proceeding is initiated by filing a writ, a document commencing the proceedings,

and a statement of claim.
2. Documents, including the writ and statement of claim, must be served to the defendant
to provide information about the case and why they are involved.
3. The defendant may respond to the documents and file a defence, outlining how they
intend to defend the claims against them.
4. If the defendant has lodged a defence, the court will hold a directions hearing to
establish the timeline of the proceedings, including what needs to occur, by who, and
by what date.
5. The court will inform the parties of what is needed to prepare a case for the judge,
including the different documents required and when they need to be filed.
6. Each of the parties will present their case and the evidence before the judge at a trial.
7. The judge will hand down their judgment at a later date after considering the parties’
submissions. If the plaintiff loses the case, the judge can order them to pay the
LESSON LINK
defendant’s legal costs. The party who loses the case may also have the option
You learnt about case management of appealing the final decision.
powers in 5D Judges, magistrates,
and juries in a civil dispute. Figure 2 The process of a civil court proceeding
Purposes of the courts 3.2.12.2

The main purpose of the courts in the civil justice system is to interpret the law,
determine whether a party is liable, and provide an order if the rights of the plaintiff
have been breached.
Table 1 Purposes of the courts
Purpose How the courts achieve their purposes

Provide access Magistrates and judges who preside over civil cases are
to an independent, experienced and knowledgeable about the law, court rules
experienced, and and procedures, and relevant subject matters. Parties can
knowledgeable be assured their civil dispute is being determined by an
judicial officer impartial, unbiased, and competent judicial officer who can
provide a fair and just outcome to the case.
Enforce procedural Court processes are formal and structured, allowing procedural
fairness fairness to occur as such rules and directions equally apply
to both parties. Furthermore, each party has the right to present
their case and examine and cross-examine witnesses. Judges
must ensure rules of evidence are applied appropriately
to facilitate the administration of justice.
Provide access Civil trials can be determined by a jury if a party wishes to use
to a trial by jury jurors and is willing to pay for the costs of engaging a jury.
By using a jury, parties can have their case determined
by a cross-section of the community that reflects the wider
views and values of society.
Continues →

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Table 1 Continued
Purpose How the courts achieve their purposes
5J THEORY
Provide a dispute Given the complex nature of class actions, such civil disputes
resolution avenue can only be heard by the courts, specifically the Supreme Court
for class actions – Trial Division. Justices in the Supreme Court – Trial Division
specialise in, and are familiar with, the rules and procedures
involved with determining civil class actions. This enables
claims with multiple group members and a lead plaintiff to
initiate a civil claim against a defendant when the claims arise
out of similar or the same circumstances, and the same matter
needs to be decided by the courts.
Provide a legally Unlike other dispute resolution bodies and methods where
binding outcome an outcome may not be legally binding, the courts will hand
down a final and binding decision. This means the outcome
of the case is legally enforceable if a party fails to comply with
the remedy ordered.
Order a remedy Courts resolve civil grievances by ordering a remedy for the
disputing parties. This may come in the form of damages, which
is monetary compensation, or an injunction, which is a court
order to do or not to do something. Both of these remedies seek
to restore a plaintiff, successful in proving their claim, to the
position they were in prior to the wrong occurring.
Provide an If a party is unsatisfied with the outcome of a case, it has the

opportunity opportunity to apply for leave to appeal and have the original
to appeal the decision reviewed by a judge in a higher court, as a result
outcome of a case of the Victorian court hierarchy.
Set precedent for Though the main role of the courts is to interpret and apply
future cases the law, they also play a role in developing laws, known as
common law, and do so by establishing precedents. Precedent LESSON LINKS
refers to a legal principle established by a court that must be
You will learn about damages and
followed in subsequent cases that share similar material facts.
injunction in Chapter 6: remedies.
By establishing precedents, the courts seek to uphold the
You learnt about class actions
plaintiff’s rights and ensure future cases of a similar nature are
in 5G Class actions.
determined in a consistent manner, and hold the defendant
accountable for their actions if they are liable. Conversely, You learnt about appeals in
precedent can also protect the defendant’s rights against 5C The Victorian court hierarchy
unmeritorious claims and support their defence if existing and civil disputes.
precedent outlines the same or a similar circumstance where You will learn about precedent in
a defendant was not found to be liable. 8B The doctrine of precedent.
Huffin’, puffin’, blowing your house down!

The Three Little Pigs are property developers who have decided to sue Mr Wolf for property
damage after he huffed and puffed and blew down their eco-friendly straw houses that
were set to be sold. The Three Little Pigs are seeking an injunction to stop Mr Wolf from
attempting to blow down their houses in future, and $1 million in damages to compensate for
the costs of rebuilding the houses and the emotional and mental harm suffered as a result of
Mr Wolf’s actions. Mr Wolf is unwilling to negotiate and wants to have a trial by jury to prove
he is not liable and rather, it is the Three Little Pigs’ fault for building ‘silly straw houses that
are unable to survive the slightest gush of wind’.
The courts can effectively facilitate the delivery of justice in this case. The fact that Mr Wolf
wishes to have a trial by jury, and is unwilling to negotiate, indicates that other less formal
Image: Four-leaf/Shutterstock.com
methods of dispute resolution would be unsuccessful. Moreover, the courts would be able
Figure 3 The courts can be used to resolve
to impose a legally binding remedy for the disputing parties and ensure further damage the dispute between the Three Little Pigs and
does not occur. Mr Wolf

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Appropriateness of the courts 3.2.12.3

Before choosing the courts as the body to hear and determine a civil dispute, the parties
5J THEORY
should consider the appropriateness of a court’s proceedings in resolving disputes.
Table 2 The appropriateness of the courts
USEFUL TIP Circumstances where the courts Circumstances where the courts
It is important for you to identify are appropriate are not appropriate
whether a court is an appropriate • The claim falls within the courts’ • If the parties want to negotiate and
institution for resolving a particular jurisdiction and does not fall under resolve the dispute themselves.
dispute. In a SAC or exam, you should VCAT’s exclusive jurisdiction. • If the parties do not want to deal
be able to discuss reasons why a court
is appropriate or not appropriate • If the parties prefer to have an with the formalities and complexities
in relation to a provided scenario. independent and experienced of a court proceeding.
judge or magistrate impose a legally • If the parties prefer less costly and
binding decision. time-consuming dispute resolution
• It is a large and complex civil claim, methods, like mediation or
such as a class action. conciliation.
• When parties prefer the formalities • If it is more effective to have the
and procedures of a court proceeding. matter resolved through CAV or
• When both parties have access to and VCAT, due to their jurisdictions
can afford legal representation. and less timely processes.
• When the parties have considered • If the parties wish to self-represent

the cost, time, and possible delays or not engage legal representation,
associated with a court proceeding. other informal dispute resolution
bodies may be more appropriate.
• If the parties wish to have a broad
LESSON LINKS • If the parties prefer to have greater
range of avenues to appeal the
You learnt about VCAT’s exclusive outcome of a case. influence over the final resolution,
jurisdiction in 5I The Victorian Civil more flexible dispute resolution
• If the parties prefer the application
and Administrative Tribunal (VCAT). methods, such as mediation, may
of precedent in determining their
You learnt about mediation and be more appropriate as opposed
dispute, or they believe the application
conciliation in 5B Methods of to judicial determination.
of a specific precedent would support
resolving civil disputes. the success of their case.
REAL WORLD EXAMPLE
Optus data breach

In September 2022, Optus announced it had been the victim of a cyberattack that ‘resulted
in unlawful access to the personal information of millions of current and former customers’.
The data breach affected around 9.8 million customers, with the leaked information including
identity documents, such as driver’s licences, proof of age documents, passport details,
and Medicare card numbers. Since then, the law firm Slater and Gordon filed a class action
lawsuit in the Federal Court with the central claim that Optus ‘failed to protect, or take
reasonable steps to protect, the personal information of its current and former customers’.
Under these circumstances, the courts are the most appropriate body to resolve the dispute
Image: kailim/Shutterstock.com
as they have the capacity, jurisdiction, and expertise to deal with complex class action
Figure 4 Optus was at the centre of a data
breach scandal that left millions of customers lawsuits. The courts can ensure justice is delivered to those who have been impacted
exposed to the dark web and criminal activity by the breach if Optus is found liable.
Adapted from ‘Optus Data Breach Class Action’ (Slater and Gordon Lawyers, 2023)

An important key skill in Area of The Victorian courts seek to provide parties with an effective means of resolving their
Study 2 of Unit 3 VCE Legal Studies
disputes by imposing legally binding remedies where necessary. When contemplating
is to ‘evaluate the ability of the
civil justice system to achieve the the appropriateness of the courts for civil dispute resolution, parties should consider:
principles of justice during a civil • whether the purposes of the courts match their needs and the remedy they
dispute’. These tables showing the are seeking.
strengths and limitations of the courts
• if judicial determination is the most appropriate manner to resolve the case and
in relation to each principle may help
you evaluate how courts can uphold if there are other dispute resolution bodies that may be more efficient and
the principles of justice. effective at delivering justice to the parties.

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Evaluating the courts’ ability to achieve the principles of justice in civil disputes
5J THEORY
S
ES
• Judges are independent, impartial, and • Court trials are often time consuming and can face
FAIRN
knowledgeable decision-makers, meaning they delays due to their complex processes. This can
can objectively listen to the evidence presented prolong the achievement of justice and increase
and produce a just outcome. the risk of an unfair trial.
• Jurors, if used, can encourage a fair outcome that • If a jury is used, there could be a risk of an unfair
reflects the views and values of a cross-section outcome as jurors, who are ordinary citizens,
of society. may hold subconscious biases or have no legal
• Both parties are entitled to present their side knowledge. Jurors may also find it difficult to
of events, meaning the facts of the case are clearly understand the complex evidence and could be
established and understood by both sides. easily influenced by skilled lawyers, which can
• Procedural fairness can be achieved through court impact the outcome of the case. Moreover, they
proceedings. This is achieved through a judge’s do not need to disclose a reason for their verdict.
power to give directions and responsibility, which • If a party is self-represented, the possibility of an
ensures the laws and rules of evidence are unfair trial is increased as legal processes and
applied appropriately. proceedings are difficult to navigate without
legal experts.
EQU
• The court procedures and laws apply equally • If only one party has legal representation, the
ALI
to both parties. The plaintiff and defendant must self-represented party may not be on equal
TY
follow the same rules, laws, and procedures. footing, due to their inexperience and lack of legal
• Parties have an equal opportunity to present their knowledge. Judges have a responsibility to assist
case before the court. self-represented parties but they can only explain
the legal processes and cannot provide any further
legal advice.
• The cost of using the courts to resolve a civil
dispute can disproportionately impact individuals
of lower socioeconomic status, placing them
in a disadvantaged position to seek justice.
• The quality of legal representation can be unequal.
Even if a party engages legal representation, their
experience and ability to present a party’s case
in the best light can vary. This can put a party
in a disadvantageous position and impact the
delivery of a just outcome.
• Court hearings and trials enable parties to access • The high cost of court proceedings and legal
a binding resolution that is legally enforceable. representation can make the courts inaccessible
AC • The courts’ jurisdiction covers a range of civil to parties.
CESS
matters, making it easier for parties to access • A jury is paid for by the parties in civil law. This
a dispute resolution body that can resolve their may limit the ability of parties to have their case
dispute and provide a remedy. determined by a cross-section of the community,
due to the associated costs.
• Without legal representation, the court system
can be difficult and complex to understand,
limiting a party’s ability to access justice via
the courts.
USEFUL TIP
Although there is a focus on informal dispute resolution methods, such as mediation,
conciliation, and arbitration, you must remember that judicial determination is also
considered a dispute resolution method that is utilised by the courts.

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Table 3 Comparing CAV, VCAT, and the courts as dispute resolution bodies
CAV VCAT The courts

5J QUESTIONS
Jurisdiction Mainly disputes between tenants Varied jurisdiction, including an Hears and determines all types
and types of and landlords, and consumers exclusive VCAT jurisdiction. of civil disputes, aside from
disputes heard and traders. matters covered under VCAT’s
exclusive jurisdiction.
Dispute • Conciliation • Mediation • Mediation

resolution • Conciliation • Arbitration (Magistrates’
methods Court for claims under
• Final hearings
$10,000)
• Judicial determination
The role of the A conciliator has specialist Dependent on which process A magistrate or judge will listen to
third party knowledge about the subject is utilised. For example, during the evidence and facts of the case
matter and facilitates conversation meditation, mediators will before imposing a legally binding
between the two disputing parties, facilitate negotiations between decision. If a jury is used, the
whilst also providing suggestions the parties but do not provide any judge will also manage the jury
for possible resolutions. suggestions or advice. However, and can impose a remedy if the
in a final hearing, the VCAT jury finds the defendant liable.
member will listen to the evidence
and impose a binding order.
Rules of evidence – In a final hearing, rules of Rules of evidence and procedure

and procedure evidence and procedure are are applicable to all hearings
enforced, but in a more flexible and trials.
and informal manner.
Use of legal – In most cases, legal representation It is highly advisable that parties
representation is not necessary. engage legal representation.
Use of a jury – – Can be utilised if a party requests

one and is willing to pay for a jury.
Final outcome Not binding unless a terms VCAT orders given at the final Court orders are legally binding
of settlement is signed. hearing are binding. and enforceable.
Appeals – To the Supreme Court – Trial Available on a range of grounds,

Division on a point of law after pending leave to appeal.
a final hearing.
5J Questions
Question 1
The main dispute resolution method used by the courts is judicial determination.
A. True
B. False
Question 2
Purposes of the courts include:
A. providing the parties access to a trial by jury.
B. providing access to a judge who awards remedies based on which party they favour.
C. ordering a legally binding remedy.
D. providing an opportunity for parties to appeal the outcome of a case.

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Question 3
In which of the following circumstances are the courts not appropriate?
5J QUESTIONS
A. A party wishes to resolve the dispute via the application of a precedent set in a similar case prior.
B. The parties wish to have the option of a trial by jury.
C. The parties wish to have greater control over the outcome of the dispute and would like the opportunity
to negotiate the resolution.
D. The parties wish to have an avenue to appeal the outcome of the case.
Question 4
damages an injunction
One purpose of the courts is to provide the disputing parties with a remedy. This can come in the form
of , which is monetary compensation, or , which is a court order
to do or not do something. Both are legally binding and enforceable.
Question 5
Tick the box to indicate whether the following statements are strengths or limitations of the courts’ ability

I. Judges are independent, impartial, and knowledgeable decision-makers. This means they make
decisions based on the evidence presented and can produce a just outcome.
II. Parties have an equal opportunity to present their case before the court.
III. The quality of legal representation can be unequal. Even if a party engages legal representation,
their experience and ability to present a party’s case in the best light can vary. This can put
a party in a disadvantageous position and impact the achievement of a just outcome.
IV. The cost of court proceedings and legal representation can make the courts inaccessible to parties.
V. Court procedures and laws apply equally to both parties. The plaintiff and defendant must
follow the same rules, laws, and procedures.
Question 6
Which of the following statements is not correct about the courts as a dispute resolution body?
A. The courts are a free and time-efficient way to determine civil disputes.
B. The courts can order parties to attend mediation to encourage an early determination of a case.
C. Magistrates will refer parties to arbitration for civil claims under $10,000.
D. Courts are used for a range of purposes in addition to final hearings and trials, including pre-trial procedures.
Preparing for exams

Standard exam-style
Outline one purpose of the courts in resolving civil disputes.
Randy and his tenant, Jeanie, are currently in a dispute over Jeanie’s recent decision to foster pet racoons.
Randy wishes to resolve this dispute using a low-cost dispute resolution body and would prefer the opportunity
to negotiate with Jeanie and reach a mutual agreement, as opposed to having a legally binding outcome imposed.
Explain one reason why the courts may not be the most appropriate institution to resolve Randy and Jeanie’s dispute.

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Hiroshi is considering commencing a class action with nine other consumers after they all fell violently ill from
eating at Gustro’s Greek Gastronomy.
5J QUESTIONS
a. Explain one way the courts can assist in resolving this civil dispute. 3 MARKS
b. Justify why the courts would be the most appropriate body to oversee Hiroshi’s class action. 3 MARKS
Extended response
The owners of two beachside mansions are locked in a tense dispute. Kapua claims their neighbour,
Jessie, blasts party rock anthems 24 hours a day and is constantly throwing ‘ridiculous and raucous’
house parties where guests have no courtesy and throw empty bottles into his ‘pristine and professionally
manicured lawn’. Jessie sees no issues with his raging house parties and believes it is his right to use his
property as he pleases. Both parties to the dispute have attempted to negotiate but Jessie has not taken
their discussions seriously and refuses to admit liability for nuisance.
Question 10
Tick the box to indicate whether the following statements are strengths or limitations of the courts’ ability
to achieve fairness in Kapua and Jessie’s dispute.

I. Judges are independent, impartial, and knowledgable decision-makers. This means they will
objectively listen to evidence presented by both Kapua and Jessie to deliver a fair and just outcome.
II. The court procedures and laws apply equally to both parties. Kapua and Jessie must follow the
same rules, laws, and procedures where appropriate.
III. If a jury is used, there could be a risk of an unfair outcome as jurors may be easily influenced
by subconscious biases or have little legal knowledge. Jurors may also find it difficult to
understand complex evidence and could be easily influenced by skilled lawyers.
IV. Court trials are often time consuming and can face delays due to their complex processes.
This can prolong the achievement of justice and increase the risk of an unfair trial.
With reference to Kapua and Jessie’s dispute, discuss the extent to which fairness can be achieved if this case
is heard and determined in the courts.

Distinguish between one purpose of the courts and one purpose of CAV as dispute resolution bodies.
‘Courts are the most appropriate body to resolve all civil disputes, compared to other bodies like the Victorian
Civil and Administrative Tribunal and Consumer Affairs Victoria.’
Discuss the extent to which you agree with this statement and justify your response.

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5K The impact of costs and time

– civil disputes
• the impact of costs and time on the ability of the civil justice system to achieve
the principles of justice during a civil dispute
5A 5B 5C 5D 5E 5F 5G 5H 5I 5J 5K
Image: BongkarnGraphic/Shutterstock.com
Going once for $650, going twice for

$650, sold! At a rate of between $200
3.2.13.1 3.2.13.2 to $700 per hour, an individual can engage
The impact of costs The impact of time a barrister to help prepare and present
during a civil dispute during a civil dispute their civil case (Olling, 2023). Yet, with
a full day in court costing eight to 10 times
this amount, legal representation quickly
becomes inaccessible to many people.
So to what extent do costs and time impact
one’s access to justice?
Lesson introduction
The costly and time-consuming nature of civil disputes must be considered by parties
before initiating a civil claim, as it can be a significant factor that shapes the case and its
outcome once civil proceedings have started. From the high cost of legal representation
to the extensive amount of time that may be required to hear and determine the case,
the achievement of the principles of justice can be limited by these factors in the civil
justice system.
The impact of costs during

a civil dispute 3.2.13.1
Parties often incur high costs when resolving civil disputes, whether it be court fees,
engaging expert witnesses, or using legal representation. For complex claims that
need to be resolved in the courts, legal representation is often necessary and the
associated fees can discourage or prevent individuals from pursuing a civil claim
and accessing justice. Court fees also vary between the courts, and significant court
delays can increase the overall cost of resolving a civil dispute.
Additionally, given the costly nature of court proceedings, some parties are forced
to settle out of court. When parties agree to settle out of court, the plaintiff may
receive some form of compensation but it may be of a lesser amount than what
a court would have ordered. This is particularly disadvantageous for parties of
low socio-economic status who do not have the capacity to pursue a full court
proceeding and must compromise on the outcome of their dispute. Consequently,
justice may not be delivered to its fullest extent, as access to a trial and equality
within the civil justice system are denied. Conversely, plaintiffs with greater
financial resources have the ability to proceed to trial and may ultimately achieve
a better outcome than those forced to settle. LEGAL VOCABULARY
Adverse cost orders an order by a
Finally, at the conclusion of a civil dispute, courts may make adverse cost orders.
court that one party must pay for part,
Usually, a court will order the losing party to pay their own costs, as well as some or all, of another party’s legal costs.
or all of the other party’s costs.

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Table 1 Types of legal costs incurred during a civil dispute
LESSON LINKS Type of legal cost Explanation

5K THEORY
You learnt about solicitors and Barristers’ fees Whilst most civil claims initiated in the court settle prior to a
barristers in 5F Legal practitioners trial, such as via mediation, cases that must go to trial will often
in a civil dispute. require a barrister to present legal arguments and examine
You learnt about adverse costs orders witnesses. Depending on the level of experience of a barrister,
in 4B Initiating a civil claim. the costs of a full day in court can range from $3,000 to $5,000
(Lawyers and Legal Services Australia, 2016).
You learnt about mediation and other
methods of dispute resolution in 5B Solicitors’ fees A solicitor is often required to help parties prepare their
Methods of resolving civil disputes. case, including:
• drafting court documents and letters
• researching the law and preparing evidence
• advising and instructing barristers on behalf of their clients.
Expert If expert witnesses are to be called to give evidence, they will

witness fees often charge fees. Examples of expert witnesses include doctors,
psychiatrists, and other professionals with expertise in a
particular subject area.
Court fees To commence and progress a court proceeding, parties will need
to pay fees to the court. Court fees vary between the courts and
are set at corporate, standard, and concession rates.
Fees for filing Filing documents for each stage of a civil proceeding, such
LEGAL VOCABULARY court documents as a writ, attracts a fee.
Writ a legal document that orders
Use of a jury If a party is successful in their request for a jury trial, they
a person or entity to perform or stop
performing a specific act. will need to cover the cost of the jury. As of 2023, the fee for
conducting a civil trial by jury, including the first day of using
the jury, costs $1,611.60 in the Victorian County Court and
$301.20 per day for the remaining six days. If a jury is required
for more than six days, the cost of a jury per day increases
to almost double the daily cost (County Court of Victoria, 2023).
Appeals A party seeking to appeal the outcome or damages awarded will

need to pay the filing fee in the appeal court, fees involved in
having a solicitor draft court or other documentation, and the
expense of the barrister to present their legal arguments to the
judges in the appeal court.
DEEP DIVE
Court fees for civil disputes

There is a wide range of court fees that can significantly add to the costs involved
in a civil dispute. As of 2023:
• filing fees in the Magistrates’ Court can amount to between $156 and $743.10.
• court hearing fees in the Magistrates’ Court of Victoria, after the first day, are $637.60
• standard court hearing fees for a trial or appeal for the first day in the Supreme
Court of Victoria are $740.
Adapted from ‘Magistrates’ Court of Victoria Fees and Costs Ready Reckoner’ (Magistrates’ Court of Victoria, 2023)
and ‘Fees’ (Supreme Court of Victoria, 2023)
Victoria Legal Aid (VLA) is available for financially disadvantaged parties in civil
LESSON LINKS cases, though only to a limited degree. For example, VLA can provide some assistance
You learnt about Victoria Legal Aid for parties with migration matters, Centrelink payments, and parties with cognitive
(VLA) in 2B Victoria Legal Aid and disabilities. However, VLA’s resources are limited and it can usually only provide
community legal centres. legal representation in court for persons charged with serious indictable offences,
You learnt about the Victorian Civil and rather than for civil proceedings.
Administrative Tribunal (VCAT) in 5I
The Victorian Civil and Administrative
Tribunal (VCAT).

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Furthermore, whilst other dispute resolution bodies, like the Victorian Civil and
Administrative Tribunal (VCAT), are a low-cost alternative to the courts, there can
still be costs associated with pursuing such a case. Specifically, VCAT fees are tiered,
5K THEORY
with individual and corporate claim costs varying, whilst legal representation may
still be required in a final hearing.
REAL WORLD EXAMPLE
Tip-offs to trials
In 2013, former Police Association of Victoria boss, Paul Mullett, commenced proceedings
against former Victoria Police chief, Christine Nixon, and others. Mullett claimed he was
the victim of malicious prosecution following his suspension from Victoria Police by Nixon,
after allegedly tipping off a detective who was the subject of a murder investigation.
Mullet’s proceeding was dismissed by the Supreme Court of Victoria following a trial in
2016. In 2021, Mullet filed an application for leave to acquire new evidence and to appeal,
which was later rejected in 2022 by the High Court. Following this decision, the High
Image: Henk Vrieselaar/Shutterstock.com
Court of Australia ordered Mullet to pay approximately $2 million in legal fees that had
accumulated since 2013. Figure 1 Former Police Association of
Victoria boss, Paul Mullett, was ordered
Adapted from ‘‘It’s only half-time’: Ex-police union boss refuses to concede defeat after High Court blow’ to pay $2 million in legal fees by the High
(Houston & Juanola, 2022) Court of Australia
USEFUL TIP
dispute’. These tables showing strengths and limitations in relation to each principle
can help you evaluate the ability of the civil justice system to achieve the principles
of justice in relation to costs.
Evaluating the ability of the civil justice system to achieve the principles of justice in relation to costs
S
ES
• Court fees and VCAT fees are tiered and the • The high costs associated with defending a civil
FAIRN
fees individuals must pay are in accordance with claim may encourage some defendants to settle
distinct categories, including corporate, standard, rather than challenge a claim, leading to an
and concession or healthcare. unfair outcome.
• The court can order adverse cost orders that • The high costs associated with pursuing a civil
encourage a fair outcome, as the successful claim may encourage some plaintiffs to accept
party may have some or all of their legal costs a settlement that is unfair, or less than what they
compensated. may be awarded by a court.
• If an individual in a civil dispute cannot afford legal
representation, they may have to self-represent,
which can increase the likelihood of an unfair
outcome due to the individual’s lack of objectivity,
legal experience, and knowledge.
EQU
• Parties that are eligible for VLA can acquire legal • Parties do not equally have the opportunity to have
ALI
representation, reducing the likelihood of unequal their civil disputes resolved, due to the costs
TY
footing in the courtroom. associated with pursuing a civil claim.

• Less costly dispute resolution bodies, such as VCAT, • Even if both parties have legal representation, the
may not require legal representation, enabling both quality of legal representation can vary drastically,
parties to equally present their version of events impacting how the case is presented and whether
and mutually reach a resolution. it is shown in the best light.
• The court and VCAT’s three-tiered system promotes • Self-represented parties may be on unequal footing
equality by allowing those with less financial with skilled lawyers in the courtroom and may not
resources to still engage with the justice system and possess the same ability to argue their case. This
not be disadvantaged by their financial situation. can particularly impact vulnerable populations and
lead to unequal and unjust outcomes.

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• Judicial powers of case management that allow • The high costs associated with civil proceedings,
5K THEORY
judges to order parties to attend mediation can such as court and legal representation expenses,
AC reduce legal costs as the matter can be promptly can discourage individuals from initiating civil
CESS
resolved, enabling the civil justice system to remain cases, hindering access to justice.
accessible to more individuals. • The high costs associated with defending a civil
• The use of alternative dispute resolution claim may encourage some defendants to settle,
methods, such as mediation, prior to trial rather than challenge a claim, limiting access
promotes access, if successful, as they are low to justice in the courts for defendants.
cost and relatively informal. • The high costs associated with pursuing a civil
claim may encourage some plaintiffs to accept
a settlement that is unfair, or less than what they
may be awarded by a court, limiting their ability to
engage with the justice system and access justice.
• Access to a jury in a civil proceeding may be limited
by its associated high costs.
• High costs of filing an appeal and the legal
representation needed to present an appeal may
discourage dissatisfied parties from taking such
action, undermining the access of these parties
to a just outcome.
The impact of time during

a civil dispute 3.2.13.2
There are often delays in the resolution of civil disputes, which can discourage or
LESSON LINK prevent individuals or businesses from pursuing a civil claim. Delays are undesirable
You learnt about case management for an injured party seeking compensation for loss or injury, as they hinder access
in 5D Judges, magistrates, and juries to justice in a timely manner and compound suffering. Furthermore, as trials rely
in a civil dispute. on oral evidence, court delays may impact the accuracy and reliability of evidence.
Table 2 Types of delays incurred during a civil dispute
Type of delay Explanation

Court backlogs Backlogs are caused by the courts’ caseload growing more
rapidly than the available resources needed to resolve
a court case.
VCAT delays Whilst VCAT generally has lower waiting times than the
courts, some lists and divisions may still experience delays
depending on demand and resource availability.
Gathering evidence It takes time for each party in a civil dispute to gather relevant
and preparation evidence and prepare arguments for their case. This significantly
for a trial adds to the time it takes for a case to be heard.
Trial procedures Court procedures, such as the legal practitioners’ oral

arguments and the examination of witnesses, can be a lengthy
and time-consuming process, possibly leading to a delay in the
resolution of the dispute.
The use of case management powers is imperative in reducing the impact of time
delays in civil disputes. Judges, magistrates, and VCAT members can seek to
resolve disputes in a more cost and time-efficient manner through various orders.
For example, the courts may order parties to participate in alternative dispute
resolution methods to encourage the early resolution of a case or restrict the
number of witnesses and length of submissions permitted at trial.

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REAL WORLD EXAMPLE
Scrambling to solve COVID-19 setbacks
5K THEORY
Throughout the COVID-19 pandemic, VCAT experienced increased delays in determining
cases. During the first 18 months of the pandemic, VCAT’s ability to work remotely
was restricted, forcing the tribunal to only focus on hearing ‘urgent and priority cases’.
In addition, VCAT experienced a number of staff shortages, with a significant number
of experienced staff members retiring whilst restrictions were in force. As a result
of being under-resourced, the VCAT system continues to be backlogged with a number
of individuals and businesses still waiting to have their cases heard. In particular, the
Residential Tenancies List remains severely delayed as a result of VCAT receiving 10
Image: TZIDO SUN/Shutterstock.com
applications a day for urgent repairs. The State Government is calling for increased
Figure 2 VCAT has experienced continual
funding for VCAT to enable it to allocate more resources to reduce delays.
delays in the aftermath of the COVID-19
Adapted from ‘‘It’s taken all my savings’: Tribunal delays blow out to years’ (Hirst, 2023) pandemic
Evaluating the ability of the civil justice system to achieve the principles of justice in relation to time
S
ES
• Dispute resolution bodies, like VCAT, that have • Delays can compromise the application of
FAIRN
lower waiting times than the courts, can enable procedural fairness and increase stress for all
disputes to be heard and determined in a timely parties, particularly more vulnerable populations.
manner, encouraging a just and fair outcome. The • Delays can negatively impact the credibility
credibility of evidence can also be preserved if there of evidence, which inadvertently increases the
is an early or prompt determination of the case. risk of an unfair outcome.
• Case management powers can reduce the
time taken to resolve a dispute, and encourage
procedural fairness, by directing parties to abide
by certain rules and procedures that support
a swift resolution of the case.
EQU
• Orders and directions given by a dispute resolution • The use of case management powers can differ
ALI
body to reduce delays apply equally to both parties between judges, creating the potential for
TY
and the directions given attempt to ensure equality unequal treatment of parties in the courts. Whilst
is achieved between the parties. proactive judges can encourage equality in cases,
inequalities may be heightened in cases where case
management powers are not used to their full extent.
• Delays are likely to disproportionately affect
parties that are unfamiliar with court proceedings
and those in vulnerable circumstances, such as
individuals with low socioeconomic status. Larger
corporations or businesses may not be impacted
to the same extent due to their available resources.
• The range of dispute resolution bodies available • The delays in the justice system may discourage
to parties can ensure justice is accessible and a prospective plaintiff from initiating legal action
delivered in an efficient manner. in the first place, limiting access to a remedy. AC
CESS
• Judicial powers of case management, such as • Parties may be forced to withdraw or settle their
ordering parties to attend mediation, can encourage case due to limited financial resources, reducing
the early determination of a case and provide access to justice.
parties with a resolution in a more timely manner.
• The use of alternative dispute resolution methods,
such as mediation, can promote access as they may
result in the prompt resolution of a case. Overall,
this can relieve delays in the civil justice system and
provide more people with access to justice.

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USEFUL TIP
In school SACs and the VCE exam, you are likely to be asked to discuss the impact
5K QUESTIONS
of costs and time during civil disputes in relation to the principles of justice.
Therefore, it is important that you are able to identify the impacts of costs and
time factors and evaluate their relationship with the relevant principles of justice.
Furthermore, the impacts of costs and time are often interrelated and should
be considered in conjunction, rather than as separate categories.
Lesson summary
The achievement of the principles of justice in civil disputes may be impacted by:
• the high costs associated with resolving a civil case, such as fees for legal
representation and court fees.
• the time involved in resolving a civil case, whether that be due to the nature
of the dispute or delays within dispute resolution bodies.
5K Questions
Question 1
The costs and time associated with initiating a civil claim can prevent the principles of justice
from being achieved.
A. True
B. False
Question 2
Which of the following are sources of delays in the courts?
A. Court backlogs
B. Gathering evidence and preparing for trial
C. Witness fees
D. Lengthy trial procedures
Question 3
low high VCAT the courts
Parties incur legal costs when resolving civil disputes, such as barristers’ fees for the presentation of a
civil case at trial. Therefore, parties might consider pursuing their civil matter through , which provides
less costly dispute resolution methods.

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Question 4
Tick the box to indicate whether the following statements are strengths or limitations of the civil justice
5K QUESTIONS
system in achieving the principles of justice in relation to costs.

I. The high costs associated with proceedings, such as court fees and costs of legal representation,
can discourage individuals from initiating civil proceedings.
II. Parties that are eligible for Victoria Legal Aid may better understand legal processes
or procedures, enabling them to properly present their case.
III. There may be unequal footing if one party in a trial does not have legal representation,
preventing parties from being able to prepare and present a case of equal quality.
IV. Dispute resolution methods, such as mediation, are low-cost and relatively informal.
Question 5
Which of the following statements are true about the impact of costs and time on civil disputes?
A. Judges have the ability to actively manage civil proceedings, such as setting time limits for the examination
of witnesses. This reduces the time it takes for a case to be heard and ensures evidence remains credible.
B. A majority of the population can afford legal representation and relatively few people need to consider the
cost of pursuing a civil dispute.
C. The delays in the civil justice system may force a prospective plaintiff to withdraw or settle their case due
to limited financial resources.
D. Most court cases are heard within one week of being initiated.
E. VCAT generally has lower waiting times than the courts, providing disputing parties with another avenue
to resolve their case in a more time-efficient manner.
Question 6
expenses delays
As trials rely on oral evidence, court may impact the accuracy and reliability of evidence, increasing
the chances of an unjust outcome.
Preparing for exams

Standard exam-style
Describe one impact of costs during a civil dispute.
Outline two reasons why there may be delays in having a case heard in the civil justice system.
Extended response
Cleopatra is a well-known activist in the legal community and has recently started a ‘Reduce Court Costs’
campaign. The campaign advocates for court fees, such as court filing and mediation fees, to be reduced
by 20% to make the civil justice system more accessible and affordable.

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Question 9
Which of the following statements are correct about the impact of Cleopatra’s ‘Reduce Court Costs’ campaign
5K QUESTIONS
on the principle of access in relation to costs? (Select all that apply)

A. If successful, Cleopatra’s ‘Reduce Court Costs’ campaign will significantly decrease the costs associated
with the civil justice system, allowing more individuals to access justice.
B. The campaign will encourage equal access to the justice system as more individuals will have the
opportunity to pursue a case and not be obstructed by cost barriers.
C. The campaign does not address the significant costs of legal representation, meaning individuals may still
be unable to afford it, limiting access to justice.
D. Self-represented parties will automatically be given first preference and not face any delays in reaching trial.
Analyse the impact of Cleopatra’s ‘Reduce Court Costs’ campaign on the civil justice system in relation
to costs. In your response, consider how the campaign could enhance the ability of the civil justice system
to achieve the principle of access.
Question 11
Tick the box to indicate whether the following statements are strengths or limitations of the civil justice
system in achieving the principles of justice in relation to time.

I. Case management powers can reduce the time taken to resolve a dispute and encourage
procedural fairness by directing parties to abide by certain rules and procedures that encourage
a swift resolution of the case.
II. Delays can negatively impact the reliability of evidence, which inadvertently increases the risk
of an unfair outcome.
III. Judicial powers of case management, such as ordering parties to attend mediation, can encourage
the early determination of a case and provide parties with a resolution in a more timely manner.
IV. Parties may be forced to withdraw or settle their case due to limited financial resources.
V. Delays can compromise the application of procedural fairness and increase stress for all parties,
particularly those from vulnerable populations.
‘The time it takes for a civil dispute to be heard in court will greatly impact the achievement of the principles
of fairness and access.’
Discuss the extent to which you agree with this statement.

Explain how class actions aim to uphold the principle of access in relation to costs.

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6
CHAPTER 6
Remedies
6A Damages as a remedy Remedies

• damages and injunctions, and their specific purposes.
6B Injunctions as a remedy
Image: Billion Photos/Shutterstock.com
245
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6A Damages as a remedy
• damages and injunctions, and their specific purposes
6A 6B
Image: Wasan Tita/Shutterstock.com
An appropriate remedy for a headache

is paracetamol. However, paracetamol
3.2.14.1 3.2.14.2
would not be appropriate to relieve the
pain of a broken leg. A remedy in the legal Damages Purposes of damages
sense serves the same purpose; to relieve
or cure the person who has been harmed.
Although, the harm can only be relieved
if a suitable remedy is used.
LESSON LINKS
Lesson introduction
You learnt about the concept of a civil A party initiating civil proceedings seeks to have their physical, emotional, and
breach in 4A Key principles of the financial loss compensated in some way. Whilst the loss suffered cannot be undone,
Victorian civil justice system. at the conclusion of a civil dispute, the court aims to return the plaintiff to the
You learnt about VCAT in 5I The position they were in prior to the civil breach and compensate for their suffering.
Victorian Civil and Administrative
Tribunal (VCAT).
You will learn more about injunctions Damages 3.2.14.1
in 6B injunctions as a remedy.
Remedies aim to correct a civil wrong and return the plaintiff to the position they
were in prior to the defendant’s actions. Remedies awarded by courts and the
Victorian Civil and Administrative Tribunal (VCAT) for civil breaches include
KEY TERMS
damages and injunctions.
Remedy a court order that aims to Damages compensate a plaintiff in a civil case for the loss caused by the civil breach,
enforce a right by preventing a civil including replacing the value of property and covering expenses, loss, pain, and
breach, or correct a civil breach and
suffering relating to a victim’s injury or death. Different types of damages cater
return the plaintiff to the position
they were in prior to the breach to different types of loss by compensating for the negative tangible and intangible
by the defendant. consequences of a civil breach.
Damages a type of remedy in which Damages can be classified into different categories:
monetary compensation is awarded
to the plaintiff in a civil dispute to • compensatory damages.
compensate their loss caused by • exemplary damages.
a civil breach.
• nominal damages.
LEGAL VOCABULARY • contemptuous damages.
Compensatory damages monetary Compensatory damages aim to restore the plaintiff to their original position.
damages that aim to restore the There are three types of compensatory damages, which all aim to compensate
plaintiff to their original position had
the plaintiff and account for different types of loss:
the breach not been committed.
• specific
• general
• aggravated.
246 Chapter 6: Remedies

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Table 1 Types of compensatory damages
Type of compensatory Explanation Example LEGAL VOCABULARY

damages
6A THEORY
Specific damages
Have a precise value and Compensation for medical a type of compensatory damages
are easily quantifiable. The expenses or loss of that have a precise value, are easily
Specific damages
amount can be calculated. earnings resulting from quantifiable, and the amount can
an inability to work. be calculated objectively.
General damages
Do not have a precise Compensation for a
a type of compensatory damages that
value and are not easily defendant’s actions that
do not have a precise value and are not
quantifiable. They are resulted in the plaintiff’s easily quantifiable. These are awarded
awarded where the inability to walk and live when a plaintiff has endured general
General damages
plaintiff has endured independently, leading to pain and suffering, loss of quality of life,
general pain and suffering, a diminished quality of life. or a shortened life expectancy.
loss of quality of life, or a Aggravated damages
shortened life expectancy. a type of compensatory damages that
Aim to further compensate In cases where a patient aim to further compensate the plaintiff
the plaintiff for humiliation receives substandard for humiliation suffered or where
they have been insulted due to the
suffered or where they medical care and is subject
defendant’s conduct.
have been insulted. to ridicule or disgrace by
Aggravated damages
the medical staff, they may
be entitled to compensation
for the humiliation and USEFUL TIP
emotional distress caused. When referring to court orders
or the outcome of a case, use the term
‘remedies’, instead of ‘compensation’.
LEGAL CASE Remedies are awarded by a court,
whereas, compensation is what
CONTENT WARNING This example mentions content that is sensitive in nature, a remedy tries to achieve for
relating to sexual assault. a successful plaintiff.
Lucy Orchard v Frayne Higgins [2020] TASADT 11
Facts
Over four years, a Toll transport worker, Higgins, continuously sexually harassed
Orchard while she was at work. After three years, the area manager was made aware
of the inappropriate conduct and initiated a claim. However, Orchard felt unsafe and
did not want to pursue the claim, so it was dropped. Higgins, the Toll transport worker,
then filed a defamation claim against Orchard, alleging the accusations were false
and had damaged his reputation. He demanded a written apology from Orchard with
an admittance of defamation, publication of the apology, and to receive $30,000
in compensatory damages. In response, Orchard decided to pursue the sexual
harassment claim.
Legal issue
The Tasmanian Anti-Discrimination Tribunal (TADT) was required to consider whether
Higgins’ actions constituted sexual harassment and if so, an appropriate remedy
to award Orchard.
Decision
The TADT determined Higgins’ actions constituted sexual harassment. Therefore,
appropriate damages for Higgins to pay Orchard needed to be determined. The primary
aggravating factor in the Orchard’s case against Higgins was that Higgins had filed
a defamation claim, thus denying his actions entirely. Therefore, the judge considered
awarding aggravated damages. The court accepted Orchard’s evidence, and Higgins was
ordered to pay $25,000 in general damages and $20,000 in aggravated damages.
The defamation claim was subsequently dropped.
Significance
The TADT’s decision to award Orchard aggravated damages demonstrates that filing a
defamation claim to deny sexual harassment allegations can exacerbate the harm caused
to the victim. This case highlights the importance of taking sexual harassment claims
seriously and underscores the consequences that perpetrators can face for their actions.
It should be noted this case was later appealed and the total damages were reduced
to $22,500.

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Exemplary damages aim to punish the defendant. They usually require a defendant
LEGAL VOCABULARY
to pay a plaintiff large amounts of money, whilst they serve to deter others from
Exemplary damages damages that behaving in the same way. These damages may be awarded in circumstances where
aim to punish the defendant and are
6A THEORY
a civil breach is driven by cruelty, revenge, or a disregard for the plaintiff’s rights.
usually a large monetary amount.
Nominal damages a small monetary Nominal damages require an extremely small amount of money to be paid to a
amount awarded to show the plaintiff plaintiff, usually valued at $1. These damages are used to ensure the plaintiff’s rights
has suffered a civil breach, usually are upheld without providing compensation. Nominal damages are often awarded in
valued at $1, to uphold the plaintiff’s situations where the plaintiff is not necessarily seeking compensation, but wants to
rights without providing compensation. prove they are legally right. Judges do not necessarily believe the defendant deserves
minimal damages, rather the plaintiff wants to fight for moral reason with minimal
monetary gain.
REAL WORLD EXAMPLE
CONTENT WARNING This example mentions content that is sensitive in nature,

relating to sexual assault.
Taylor Swift’s $1 victory – a symbolic win for women’s rights and bodily autonomy
Taylor Swift brought a civil claim against David Mueller for assault and battery after
he lifted her dress and groped her at a meet-and-greet in 2013. She sued him for $1
in damages, illustrating that the lawsuit was not about monetary profit, but to send
a message that ‘no means no’ and victims have control over their bodies.
Swift’s claim was successful, and Mueller was ordered to pay $1 in damages.
After the trial, Swift made a statement:
‘I acknowledge the privilege that I benefit from in life, in society, and in my ability to
shoulder the enormous cost of defending myself in a trial like this. My hope is to help
those whose voices should also be heard. Therefore, I will be making donations in the
near future to multiple organisations that help sexual assault victims defend themselves.’
She acknowledged that seeking nominal damages is a privilege, as not everyone can
Image: Brian Friedman/Shutterstock.com
afford legal representation.
Figure 1 Taylor Swift sues Mueller for nominal
damages valued at $1 Adapted from ‘Jury says Taylor Swift was groped by radio DJ, awards her a symbolic $1 verdict’ (Yahr, 2017)
Contemptuous damages acknowledge that the plaintiff had a legal right but not a
LEGAL VOCABULARY
moral right to make a civil claim against the defendant. To condemn the immorality
Contemptuous damages of the claim, minimal compensation is awarded. When these damages are awarded,
a small monetary amount awarded to
the judge must believe the claim should not have been brought to court. An award
acknowledge that the plaintiff had a
legal right but not a moral right to the of these damages indicates a ‘technical victory’, but not a moral victory.
claim brought before the court, and
therefore should not be compensated.
Fashion faux pas

USEFUL TIP Abrielle is a well-known fashion designer, and John is a freelance journalist who writes
articles about fashion trends. John publishes an article on a popular fashion blog, where
To differentiate contemptuous
he criticises Abrielle’s latest collection as ‘uninspired and outdated’. Abrielle is outraged
damages and nominal damages, recall
by the article and believes John’s comments have damaged her reputation in the
that for contemptuous damages, the
fashion industry.
plaintiff may be seeking a large sum of
money, but the judge disapproves and Abrielle decides to file a defamation lawsuit against John, claiming his comments were
reduces the compensation. However, false and caused her to suffer financial losses. However, during the trial, John’s defence
in the case of nominal damages, the team argues that Abrielle’s reputation was already damaged before the article was
plaintiff chooses to seek a low amount published, due to a previous fashion show that received negative reviews. The court
of damages. agrees with John’s defence, and whilst they acknowledge that John’s comments were
defamatory, they believe they did not cause any further damage to Abrielle’s reputation.
Therefore, the court awarded minimal damages to Abrielle, in recognition of the limited
impact of the defamatory comments.
Figure 2 Contemptuous damages were awarded to Abrielle, indicating a technical victory

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Similar to the way crimes have maximum penalties, there are statutory restrictions
on damages that are outlined in the Wrongs Act 1958 (Vic). For example, the maximum LEGISLATION
amount of general damages awarded for pain and suffering is capped to a statutory
6A THEORY
amount indexed on 1 July each year. This maximum was $660,970 in the 2022-2023 Wrongs Act 1958 (Vic)
financial year (Fernando, 2023).
Purposes of damages 3.2.14.2 To return the

The overarching purpose of damages is to restore the plaintiff to their original position plaintiff to their
original position
before the civil breach occurred. The focus is on the plaintiff and ensuring the breach
of civil rights is remedied, as opposed to in criminal law, where the focus is on the
offender and changing their behaviour through imposing sanctions. If a defendant To deter
To uphold the
others from
cannot pay the sum of damages, the court may seize their assets or create a payment plaintiff’s
committing
plan. However, the purpose of compensating the plaintiff may not be achieved if the rights
civil breaches
defendant has no source of income and limited assets.
Different types of damages aim to achieve different objectives by assigning monetary
value to tangible and intangible consequences of a civil breach. Figure 3 Purposes of damages
Table 2 The ability of damages to return the plaintiff to their original position
• Compensatory damages are intended to compensate the • Damages, despite providing monetary compensation, may not
plaintiff for their actual losses, such as medical bills, lost fully restore non-monetary losses, such as pain and suffering
income, and property damage, with the purpose of making or emotional distress.
the plaintiff ‘whole’ again after their loss. Specific damages • The amount of compensation awarded for intangible
can be quite effective at achieving this. consequences of a civil breach may not fully reflect the
• General and aggravated damages aim to compensate for non- extent of harm suffered by the plaintiff, as quantifying pain
quantifiable losses, such as pain, reduced life expectancy, and suffering can be difficult.
and humiliation. • In some cases, harm suffered by the plaintiff may be
irreversible, such as in cases of wrongful death or permanent
disability. In these cases, damages cannot fully restore the
plaintiff to their original position prior to the breach.
• If the defendant does not have sufficient assets to pay
the damages awarded, the plaintiff may not be fully
compensated for their losses.
Damages also serve to uphold the plaintiff’s rights. By awarding damages, the court
LESSON LINK
acknowledges the plaintiff has been wronged and their rights have been violated.
Recognising the plaintiff’s rights through the award of damages provides a sense You learnt about jurors in
of justice and closure to the plaintiff and helps restore their faith in the legal system. 5D Judges, magistrates, and juries
in a civil dispute.
Table 3 The ability of damages to uphold the plaintiff’s rights
• Even in cases where the damages awarded are minimal, • In some cases, the harm suffered by the plaintiff may be so
or where the plaintiff is seeking nominal damages, the significant that damages cannot fully restore their rights.
court’s decision to award damages acknowledges the For example, in cases of wrongful death, no amount of
plaintiff’s right to a legal remedy and upholds their right compensation can fully restore the plaintiff’s right to life.
to seek justice for a violation of their rights. • Jurors do not have the legal expertise to award damages that
uphold plaintiffs’ rights. In cases where the jury decides the
damages awarded to the plaintiff, jurors may not understand
the value of someone’s rights.
When a defendant pays damages, it serves as a warning to others that such behaviour
will not be tolerated and may result in severe consequences. This helps deter potential
wrongdoers from engaging in similar conduct and promotes a safer and more just
society. The threat of facing damages can also encourage individuals and organisations
to take preventative measures to avoid engaging in civil wrongs in the first place.

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Table 4 The ability of damages to deter others from civil breaches
6A QUESTIONS
• In some cases, the defendant’s actions may have been • Whilst damages can be awarded to deter future harmful
intentional or reckless, and damages can be awarded to conduct, there is no guarantee that this will be effective
deter similar behaviour in the future. This aspect of damages if others perceive the potential risk of wrongful actions
upholds the plaintiff’s right to be protected from future to be outweighed by the benefits of completing that action.
harm by holding the defendant accountable for their actions. Additionally, deterrence cannot be achieved if a possible
defendant is unaware of the risk of being sued for damages.
If the defendant is unlikely to be deterred by the damages
awarded, the plaintiff’s rights may not be fully upheld.
• If the defendant cannot pay the damages due to limited
financial means, damages may be unable to deter that
defendant effectively.

An important key skill in Area of Study The main purposes of damages are:
2 of Unit 3 VCE Legal Studies is ‘discuss
the ability of remedies to achieve their • to return the plaintiff to their original position.
purposes’. The tables in this lesson • to uphold the plaintiff’s rights.
showing strengths and limitations of
• to deter others from committing civil breaches.
damages in relation to each purpose
can help you to discuss the ability of
compensatory
remedies to achieve their purposes.
exemplary
Damages specific general aggravated
nominal
contemptuous
Figure 4 Summary of the types of damages applicable in civil cases
6A Questions
Question 1
Remedies are court orders that punish offenders once they are found guilty of criminal behaviour.
A. True
B. False
Question 2
Which of the following are types of compensatory damages? (Select all that apply)
A. Aggravated damages
B. Nominal damages
C. General damages
D. Specific damages
Question 3
General damages can be calculated exactly.
A. True
B. False

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Question 4
Which of the following is not a scenario where specific damages would apply?
6A QUESTIONS
A. Medical treatment.
B. Loss of work.
C. The pain of a broken arm.
Question 5
medical expenses pain and suffering humiliation loss of quality of life
Aggravated damages aim to compensate for .
Question 6
Tick the box to indicate whether each of the following statements refers to nominal damages
or contemptuous damages.
Statement Nominal damages Contemptuous damages

I. The plaintiff is seeking monetary compensation.
II. The plaintiff is not seeking monetary compensation.
III. The judge is indicating a legal victory regardless of the value

of the compensation.
IV. The judge is indicating a technical and legal victory, but not
a moral victory.
Question 7
Which of the following statements most accurately describes the overarching purpose of damages?
A. The main purpose of damages is to punish the defendant.
B. The main purpose of damages is to reward the plaintiff for bringing a civil action to court.
C. The main purpose of damages is to return the plaintiff to their original position before the civil
breach occurred.
Preparing for exams

Standard exam-style
Outline one purpose of damages.
Describe one reason why a plaintiff may seek general damages.
Sarala brought a residential tenancy claim against tenant Hayley. She is seeking $5 in damages.
Explain one reason Sarala might be seeking $5 in damages.
Distinguish between compensatory and exemplary damages.

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Niamh has been working with Desiree for five years and has decided to write a book about her life. When
6A QUESTIONS
Desiree finds out she is horrified and asks Niamh to not publish the book, however, she disregards Desiree’s
concerns and publishes the book anyway.
Desiree sues Niamh for misusing her private information. The judge at trial states ‘the defendant’s actions
caused the plaintiff great humiliation, whilst they demonstrated malicious intent in their behaviour.’
Identify two types of damages the judge is likely to award Desiree. Justify why each is appropriate in this case.
Extended response
Valerie is a sports coach who loves her job but slipped over a puddle of water in a shopping centre and
injured her back. She spent significant time in hospital and is no longer able to walk. Consequently, Valerie
sued the shopping centre stating that her injury was caused by its negligent cleaning practices. She can no
longer coach sports and has been diagnosed with depression.
Question 13
Tick the box to indicate whether each of the following statements refers to the ways in which the purposes
of damages are achieved or not achieved.
Statement Achieved Not achieved

I. Damages may not be able to fully restore non-monetary losses, such as pain and suffering
or emotional distress.
II. Monetary compensation can restore the plaintiff to their original, financial position.
III. Valerie may view the compensation provided by damages as insufficient. Court
proceedings are very costly and the damages may only cover the court filing fees and the
cost of legal representation.
To what extent can damages achieve the purposes of remedies in Valerie’s case?

Explain how class actions could affect the ability of damages to achieve their purposes.

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6B Injunctions as a remedy
• damages and injunctions, and their specific purposes
6A 6B
Image: Tero Vesalainen/Shutterstock.com
As you are studying for your next legal SAC,

3.2.15.1 3.2.15.2 3.2.15.3 your neighbour is blasting music very loudly,
Injunctions Purposes A comparison making it difficult to focus. You fail your SAC
of injunctions of damages as a result and want to take legal action.
and injunctions An award of damages would not prevent him
from playing music while you’re studying
for another SAC. So what would be a more
appropriate remedy for you to seek for
some peace?
Lesson introduction
If a civil wrong has not yet occurred, damages would not be the most appropriate
remedy as they aim to compensate for the loss suffered by the plaintiff. In the case LESSON LINK
where a civil wrong can be prevented, or a past breach needs to be prevented from You learnt about damages
occurring again, a party may initiate a civil action in order to compel a party to do in 6A Damages as a remedy.
an act, or prevent them from doing an act.
Injunctions 3.2.15.1
Injunctions are legal orders compelling a party to do something, or preventing
KEY TERM
a party from doing something. They aim to either remedy a past civil breach or
prevent a potential, future civil breach from occurring. If the defendant does not Injunctions a type of remedy requiring
comply with the terms of the injunction, they may be held in contempt of court, be a party to either perform a specific
ordered to pay damages, or be charged in criminal proceedings. There are different action or prohibiting a party from
types of injunctions to address the broad range of civil breaches that can occur. taking a particular action.
Table 1 Types of injunctions LEGAL VOCABULARY

Contempt of court an act that
Type of injunction Explanation Example
interferes with, or undermines the
Forces parties to do Ordering a party to authority of the courts and gives rise
something. demolish a wall that to a sanction, such as a fine or term
Mandatory injunction of imprisonment.
they built on someone
else’s land. Mandatory injunction an injunction
that forces a party to do something.
Prevents parties from Preventing a property
Restrictive injunction Restrictive injunction an injunction
doing something. from being sold.
that prevents a party from doing
Only lasts for a short time Preventing the demolition something.
and is often awarded in of a house for a short Interlocutory injunction an injunction
urgent circumstances. period, until a court can that is temporary.
Interlocutory injunction
resolve a dispute regarding Final injunction an injunction that
whether the owner is or is is permanent.
not entitled to demolish it.
Permanent injunction Preventing a publisher

Final injunction that is ongoing. from printing a
defamatory book.

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REAL WORLD EXAMPLE
Boosting its reputation – Boost Mobile’s trademark triumph

6B THEORY
Boost Mobile brought a case against Optus for trademark infringement following
the release of a new feature called ‘Moblie Boost’. Justice Tom Thawley found in favour
of Boost Mobile and ordered a mandatory injunction, giving Optus 72 hours to remove
the term ‘Mobile Boost’ from their website and other marketing platforms.
Thawley stated that the potential confusion would cause damage to Boost Mobile,
Image: kailim/Shutterstock.com and that Optus should no longer be able to promote their Mobile Boost features
Figure 1 An injunction was ordered as a in the media.
remedy to protect Boost Mobile from Optus’
trademark infringement Adapted from Nine News, ‘Optus suffers court blow against Boost Mobile over ‘Mobile Boost’ feature’ (Long, 2023)
To return the
Purposes of injunctions 3.1.15.2
plaintiff to their The main purpose of remedies is to return the plaintiff to their original position
original position
before the civil wrong occurred. Injunctions achieve this purpose by restoring the
plaintiff to the position they were in before the defendant infringed their rights,
To deter or by preventing harm to the plaintiff in the future.
To uphold the
others from
plaintiff’s
committing The overarching purpose of injunctions is to restore the plaintiff to their original
rights
civil breaches position before the civil breach occurred or prevent a civil breach from occurring.
In civil law, the emphasis is placed on the plaintiff and rectifying the violation of
civil rights, rather than in criminal law, where the focus lies on the offender and
Figure 2 Purposes of damages modifying their conduct by imposing penalties.
Table 2 The ability of injunctions to return the plaintiff to their original position
• Injunctions aim to return the plaintiff to their original • Interlocutory injunctions are merely temporary and when
position by forcing the defendant to take action to prevent the time period has been completed, the defendant is able
further harm to the plaintiff. to continue their disruptive behaviour.
• Injunctions can also prevent a future breach from occurring
as they have the ability to restrict the defendant and prevent
them from doing something.
Injunctions play a crucial role in upholding the rights of the plaintiff in civil cases.
These legal remedies are often sought when the plaintiff believes that their rights
have been violated or are at risk of being violated by the actions or omissions
of another party. By obtaining an injunction, the plaintiff can seek a court order
to prohibit or require certain actions from the defendant, effectively safeguarding
their rights.
Table 3 The ability of injunctions to uphold the plaintiff’s rights
• By granting an injunction, the legal system demonstrates • Initiating a civil claim comes with high costs, meaning that
its commitment to protecting and upholding the rights of people of high socioeconomic status can protect their civil
individuals in civil matters, providing a powerful tool for rights more readily. In contrast, someone of medium or low
plaintiffs to seek justice and remedy breaches of their rights. socioeconomic status may not have the resources to seek out
a civil remedy.
When an injunction is ordered, the defendant will be ordered to do a specific action

or be prevented from doing a specific action, showing that such behaviour will not
be tolerated. This helps to deter potential wrongdoers from engaging in similar
conduct and promotes a safer and more just society.

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Table 4 The ability of injunctions to deter others from committing civil breaches
6B THEORY
• Injunctions provide immediate relief to the plaintiff. When • The court has a limited ability to monitor and ensure that
a court grants an injunction, it can swiftly halt or restrict the defendant adheres to the terms of the injunction. If the
the actions of the defendant, preventing further harm or defendant chooses to disregard the injunction, the plaintiff
damage to the plaintiff’s interests. This prompt and decisive may need to initiate additional legal proceedings to enforce
action can serve as a powerful deterrent to others who might it, which can be time-consuming and costly. This limitation
consider engaging in similar civil breaches. can undermine the deterrent effect of injunctions if they are
not enforced.
LEGAL CASE USEFUL TIP

Gippsland Environment Group Inc v VicForests [2022] VSC 296
2 of Unit 3 VCE Legal Studies is ‘discuss
Facts the ability of remedies to achieve their
VicForests is a government-owned company that harvests timber in state forests. purposes’. The tables in this lesson
Gippsland Environment Group (GEG) is an association that aims to preserve the state showing strengths and limitations of
forests of Gippsland, including the flora and fauna. VicForests was harvesting timber injunctions in relation to each purpose
in areas inhabited by greater gliders and yellow-bellied gliders. can help you to discuss the ability of
Legal issue remedies to achieve their purposes.
GEG sought a restrictive injunction to prevent VicForests from harvesting timber

in certain areas where greater gliders and yellow-bellied gliders inhabit. VicForests
must comply with the Sustainable Forests (Timber) Act 2004 (Vic) which outlines their LEGISLATION
obligations and relevant code of practice.
Sustainable Forests (Timber)
Decision
Act 2004 (Vic)
The restrictive injunction was granted as the judge found that preventing harvesting
in those areas would not negatively affect the timber industry. VicForests had the
resources and expertise to identify other suitable areas to harvest timber from, while
not harming the greater gliders and yellow-bellied gliders.
Significance
The defendant was forced to stop harvesting timber in specific areas to prevent further
harm to the plaintiff, whose aim was to protect Victorian wildlife.
Image: Anom Harya/Shutterstock.com

Figure 3 Gippsland Environment Group sought an injunction against VicForests to prevent them
from harvesting Timber in areas containing gliders

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A comparison of damages
and injunctions 3.1.15.3
6B THEORY
Table 5 Comparison of injunctions and damages
Damages Injunctions
Damages are an award of Injunctions are court orders
monetary compensation to compelling a party to do
the plaintiff. They aim to something, or preventing a party
compensate for the loss caused from doing something.
by the civil breach. This can
Explanation
include replacing the value
of property and covering
expenses, loss, pain, and
suffering relating to a plaintiff’s
injury or death.
The main purpose of damages The main purpose of injunctions

is to restore the plaintiff to their is to compel someone to do
original position before the civil an act, or prevent someone
breach occurred. from doing an act. Therefore,
injunctions achieve this by
Purpose
restoring the plaintiff to the
position they were in before the
defendant infringed their rights,
or by preventing harm to the
plaintiff in the future.
Lesson summary
Types of injunctions
Mandatory Restrictive Interlocutory Final

injunction injunction injunction injunction
Figure 4 The types of injunctions
Table 6 The purposes of injunctions
Purpose Description
Injunctions aim to return the plaintiff to their original
Return the plaintiff
position by forcing the defendant to take action to
to their original position
prevent further harm to the plaintiff.
By obtaining an injunction, the plaintiff can seek a

Uphold the plaintiffs’
court order to prohibit or require certain actions from
rights
the defendant, effectively safeguarding their rights.
The defendant will be ordered to do a specific action or

Change the behaviour
be prevented from doing a specific action, showing that
of the defendant
such behaviour is not tolerated.

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6B Questions
6B QUESTIONS
Question 1
Injunctions aim to either remedy a past civil breach or prevent a potential civil breach from occurring.
A. True
B. False
Question 2
Preventing a book from being published is an example of:
A. a mandatory injunction.
B. exemplary damages.
C. a restrictive injunction.
D. contemptuous damages.
Question 3
court orders sanctions
Injunctions are compelling a party to do something, or preventing a party from doing something.
They aim to either remedy a past civil breach or prevent potential civil breaches from occurring.
Question 4
Which statement does not describe an interlocutory injunction?
A. Temporarily restricts the parties from breaching civil rights.
B. They are temporary, meaning that further legal proceedings must take place for the injunction to become
final or for the plaintiff to be awarded damages.
C. Only lasts for a short period of time and is often awarded in urgent circumstances.
D. Forces a party to start or complete an action to prevent further harm to the plaintiff.
Question 5
Mandatory Restrictive Interlocutory Final
injunctions prevent the defendant from acting in a way that would further the harm, for a specified
time frame only.
Question 6
Tick the box to indicate whether each of the following statements refers to damages or injunctions.
Statement Damages Injunctions

I. Prevents the defendant from acting in a way that would further the harm.
II. An award of monetary compensation to the plaintiff.
III. Can be mandatory or restrictive.
IV. Can be compensatory or nominal.

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Preparing for exams

Standard exam-style
6B QUESTIONS
Adapted from VCAA 2018 Sample exam Section A Q1b
Edward plans to build an extension onto his house. If it goes ahead, the extension will block the natural light
from Digby’s window, his neighbour. Digby wants to know what he can do about this situation.
Extended response
Question 10
Tick the box to indicate whether the following statements are strengths or limitations of injunctions
for a plaintiff.

I. Injunctions prevent the defendant from acting in a way that would further the harm.
II. Injunctions do not account for financial loss.
III. Interlocutory injunctions are only temporary, meaning further legal action may be necessary.
IV. The defendant is legally bound by an injunction and legal consequences apply if they do not
fulfil the terms of the injunction.
Discuss the ability of injunctions to achieve their purpose.
After false information about Rebel Wilson was published in an Australian magazine, Women’s Day,
Wilson brought a claim of defamation against Bauer Media. She was awarded $4.5 million in specific
damages, compensating for her loss of acting roles. This decision has since been appealed.
Source: Adapted from ‘Rebel Wilson’s legal battle ends as High Court rejects appeal over defamation payout’ (Byrne, 2018)
Question 12
Tick the box to indicate whether each of the following statements are true or false in relation to Wilson’s case.

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Statements True False

I. Given the damage had already been done and the false information had already been widely
6B QUESTIONS
disseminated, an injunction would not have been an effective remedy to address the harm
already suffered by Wilson.
II. Wilson is already a famous actress, and thus would not require a civil remedy as she
is already wealthy.
III. Specific damages would compensate Wilson for her loss of acting roles as a result of the
defamatory publication. This loss could be calculated and quantified.
IV. An injunction would be effective in Wilson’s case as it could prohibit all publications from
publishing further defamatory information about her.
Referring to the purposes of remedies, analyse why damages are more appropriate than an injunction
in Wilson’s case.

The purpose of sanctions is to restore the plaintiff to their original position and punish the defendant.
Injunctions fulfil this purpose as they force a party to do something, such as pay money or write an apology.
Damages fulfil this purpose as they financially compensate the plaintiff, however, they cannot compensate
for pain and suffering.
Identify three errors in the statement and, for each error, explain the correct civil process or procedure
that should have occurred.
Question 15
Tick the box to indicate whether the following statements are strengths or limitations of civil remedies in
achieving their purposes.

I. Specific damages are effective in restoring the plaintiff to their original position before the civil
breach occurred as they have a precise value and are easily quantifiable.
II. General damages do not have a precise value and are not easily quantifiable. For this reason,
their ability to achieve their purpose of restoring the plaintiff to their original position is limited.
III. By obtaining an injunction, the plaintiff can seek a court order to prohibit or require certain
actions from the defendant, effectively safeguarding their rights.
IV. Initiating a civil action in order to gain an injunction against a defendant comes with high costs
for a plaintiff, so not all plaintiffs will be able to apply for this relief.
V. The court has a limited ability to monitor and ensure that the defendant adheres to the terms
of the injunction. If the defendant chooses to disregard the injunction, the plaintiff may need to
initiate additional legal proceedings to enforce it, which can be time-consuming and costly.
Question 16
Tick the box to indicate whether the following statements are strengths or limitations of criminal sanctions
in achieving their purposes.

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I. Fines can achieve the purposes of punishment and deterrence quite effectively as the fear
6B QUESTIONS
of receiving a significant crime is likely to discourage a potential offender from committing

a criminal act in the first place.
II. Fines are not effective in achieving purposes such as rehabilitation and protection of the
community. This is because if a criminal receives a fine, they are not removed from the
community and therefore could still pose a threat to society.
III. Imprisonment allows the purpose of protection to be achieved for the duration of the offender’s
period of imprisonment.
IV. Many prisoners who are released from prison after their period of imprisonment will reoffend,
so the purpose of community protection is not achieved in the long term.

‘Civil remedies are always able to achieve their purposes, unlike criminal sanctions, which rarely achieve
their purposes.’

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UNIT 4
The people, the law and reform
The study of Australia’s laws and legal system includes an understanding of institutions that
make and reform our laws. In this unit, students explore how the Australian Constitution
establishes the law-making powers of the Commonwealth and state parliaments, and how
it protects the Australian people through structures that act as a check on parliament in
law-making. Students develop an understanding of the significance of the High Court in
protecting and interpreting the Australian Constitution. They investigate parliament and
the courts, and the relationship between the two in law-making, and consider the roles of
the individual, the media and law reform bodies in influencing changes to the law, and past
and future constitutional reform. Throughout this unit, students apply legal reasoning and
information to actual and/or hypothetical scenarios.
Image: r.classen/Shutterstock.com
261
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UNIT 4 AOS 1
The people and the law-makers
The Australian Constitution establishes Australia’s Outcome 1
parliamentary system and provides mechanisms to ensure On completion of this unit the student should be able to
that parliament does not make laws beyond its powers. discuss the ability of parliament and courts to make law and
Parliament is the supreme law-making body, and courts evaluate the means by which the Australian Constitution acts
have a complementary role to parliament in making laws. as a check on parliament in law-making.
Courts can make laws through the doctrine of precedent and
through statutory interpretation when determining cases.
In this area of study, students examine the ways in which the
Australian Constitution acts as a check on parliament in law-
making, and factors that affect the ability of parliament and
courts to make law. They explore the relationship between
parliament and courts in law-making and consider the
capacity of both institutions to make law.
KEY SKILLS
• define and use legal terminology • discuss the significance of one High Court case which has had
• discuss, interpret and analyse legal principles and information an impact on state and Commonwealth law-making powers
• explain the law-making powers of the state and • discuss the ability of parliament and the courts to make law
Commonwealth parliaments, using examples • evaluate the means by which the Australian Constitution
• analyse the relationship between parliament and courts acts as a check on parliament in law-making
• explain the significance of section 109 of the Australian • synthesise and apply legal principles to actual and/or
Constitution hypothetical scenarios.
262
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7
CHAPTER 7
Parliament and the Australian Constitution
7A he Commonwealth Parliament and the Crown

T Parliament and the Australian Constitution
in law-making • the roles of the Crown and the Houses of Parliament
(Victorian and Commonwealth) in law-making
7B The Victorian Parliament and the Crown
• the law-making powers of the state and Commonwealth
in law-making
parliaments, including exclusive, concurrent and
7C The division of powers residual powers
• the significance of section 109 of the Australian
7D Section 109 of the Australian Constitution
Constitution
7E High Court cases and their impact • one High Court case which has had an impact on state
on law-making powers and Commonwealth law-making powers
7F arliament’s ability to make law

P • factors that affect the ability of parliament to make law,
– the bicameral structure including:
– the bicameral structure of parliament
7G Parliament’s ability to make law – international pressures
– international pressures
– the representative nature of parliament
7H Parliament’s ability to make law • the means by which the Australian Constitution acts as
– representative nature a check on parliament in law-making, including:
7I The Constitution as a check on parliament – the role of the High Court in protecting the principle
– representative government of representative government
– the separation of the legislative, executive and
7J The Constitution as a check on parliament judicial powers
– the separation of powers
– the express protection of rights.
7K The Constitution as a check on parliament
– express protection of rights
263
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7A The Commonwealth Parliament

and the Crown in law-making
• the roles of the Crown and the Houses of Parliament (Victorian and
Commonwealth) in law-making
7A 7B 7C 7D 7E 7F 7G 7H 7I 7J 7K
Image: Natali _ Mis/Shutterstock.com
The heart’s ability to pump blood relies

on the coordinated effort of all its chambers,
each contracting in turn. Similarly, the two
4.1.1.1 4.1.1.2 4.1.1.3 4.1.1.4
chambers of parliament are essential in
enacting laws. Both houses (or chambers) An introduction The role of The role of the The role of
to the the House of Senate in law- the Crown in
play distinct roles in the legislative process, Commonwealth Representatives making Commonwealth
working in harmony in order for legislation Parliament in law-making law-making
to be passed.
Lesson introduction
Australia is a constitutional monarchy in which King Charles III is the Head of
State and has the final say in regard to all legislation passed by the Commonwealth
Parliament.
The Australian Constitution gives Commonwealth and state parliaments the power
to make laws on particular matters, whilst also placing restrictions on these powers.
This legislation also establishes the High Court of Australia, which ensures parliament
produces law in accordance with the Constitution by invalidating laws created by
parliament if they breach the Constitution.
An introduction to the Commonwealth

Parliament 4.1.1.1
Australia is a representative, democratic society, meaning the laws that govern
LEGAL VOCABULARY Australians’ day-to-day lives are created by elected politicians. Regular elections
Constitutional monarchy a system allow members of the community to either re-elect law-makers who are representing
of government in which the Crown the community’s needs or replace them with different law-makers who offer new
is the Head of State, but elected
promises and variation in governing society. These elected representatives are
representatives have the power
members of a bicameral parliament, a law-making body with two houses or chambers
to create laws.
that must collaboratively approve new bills.
Democratic society an organised
system of people living in a community, The federal, bicameral parliament in Australia is known as the Commonwealth
in which the laws and processes that Parliament, and has existed since 1901. Today, Parliament House is home to the
govern people’s lives are created by Commonwealth Parliament, and is in Australia’s capital city, Canberra.
elected representatives’.
Election a public voting process in
which new representatives are chosen LESSON LINKS
to be part of parliament, and from which You will learn more about the bicameral structure in 7F Parliament’s ability to make
a government is determined. law – the bicameral structure.
Bicameral parliament a law-making You learnt about the High Court in 2D The Victorian court hierarchy and criminal cases
body with two houses or chambers and 5C The Victorian court hierarchy and civil disputes.
that must approve of new bills
or amendments to laws.
264 Chapter 7: Parliament and the Australian Constitution

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The role of the House of Representatives

in law-making 4.1.1.2
7A THEORY
The House of Representatives is the Commonwealth Parliament’s lower house and
KEY TERM
has 151 elected members from across Australia. The House of Representatives is also
referred to as the ‘house of the people’ as this is where the government of the day House of Representatives the
sits and is, therefore, representative of the Australian population. lower house of the Commonwealth
Parliament, which is comprised of 151
The House of Representatives is composed of 151 members who serve a term of at
members of parliament representing
most three years before re-election. Each of these 151 members represents and serves the electorates across Australia.
an electorate. At an election, voters elect one person to represent their electorate
in the House of Representatives. Given how Australia’s population is distributed, LEGAL VOCABULARY
larger states, like NSW and Victoria, have substantially more electoral divisions than Government a group of people that
smaller states, such as Tasmania and South Australia. This means the more populous work, with authority, to rule and
states elect more members of the House of Representatives. manage a community of people,
such as a country, state, or local area.
Electorate a geographical area
comprised of approximately 110,000
voters represented by a member
of the Commonwealth Parliament.
Political party an organisation
comprised of members of similar ethos
and worldviews with the primary aim to
compete in elections to achieve societal
and political goals.
Prime minister the most senior
minister in a government who acts
as the leader of the government and
their own political party.
Coalition an alliance between two or
Image: FiledIMAGE/Shutterstock.com
more political parties with the aim of
Figure 1 In the 47th House of Representatives, elected in 2022, the Labor government won the majority working together to form a government.
of seats with 78 seats, whilst the Coalition and minor and independent parties won 56 and 17
seats respectively Crossbench the members of
parliament who do not belong to the
Almost all members of the House of Representatives are members of political major political parties, who are either
parties, such as the Liberal Party of Australia and the Australian Labor Party. independents or members of minor
Each party represents different political views. Political parties are organisations political parties.
that gather members of similar ideologies and values to contend in elections.
Figure 2 Anthony Albanese is the 31st Prime Minister of Australia and the leader of the Australian
Labor Party
The political party that has the majority of seats in the House of Representatives
forms government. The leader of this party becomes the prime minister. Some
members of the House of Representatives, who are also members of the governing
party (or coalition of parties), will be appointed as ministers. Ministers are responsible
for running government portfolios that provide essential services, such as defence,
education, social services, and finance.
The political party with the second highest number of seats in the House of
Representatives will form the opposition, and those in neither the government
nor the opposition will form the crossbench.

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Table 1 The role of the House of Representatives
Role Explanation
7A THEORY
Initiate new legislation Most legislation is introduced by ministers, who

are usually usually members of the House of
Law
Representatives.
As a consequence, a majority of new laws and
proposed changes to existing laws begin in the House
of Representatives. Although ministers initiate most
legislation, this role is shared with all the members of
the Commonwealth Parliament.
CONSTITUTION Initiate money bills Section 53 of the Australian Constitution requires that
all bills in relation to government expenditure must be
Section 53 Bill
initiated in the House of Representatives. For example,
laws on taxation and appropriation bills.
LEGAL VOCABULARY
$
Bill a proposed law introduced in a
parliament by a member of one of Represent the people Members of the House of Representatives are directly
its houses. in law-making chosen by the people in their community and will often
receive correspondence from those living within their
electorate. As representatives of that community, they
should reflect the opinions and perspectives of those
within their electorate when introducing, debating,
or suggesting amendments to legislation. If they fail
to do so, they risk being voted out of office at the
next election.
Review legislation and As Australian society changes, it is necessary that

propose amendments law reform occurs to existing Acts. The House
of Representatives is equipped with members of
parliament who directly represent and understand
the real issues affecting their electorates and can
therefore, propose meaningful amendments. This
process ensures laws are as effective as possible.
Scrutinise legislation In the less common instances where bills are

introduced in the Senate, the House of Representatives
Law
will act as a house of review. Members will debate
and scrutinise the proposed legislation, making
amendments if necessary, and then potentially passing
the bill to the Governor-General for royal assent.
The role of the Senate in law-making 4.1.1.3

The Senate is the upper house of the Commonwealth Parliament. It has 76 elected
KEY TERM
members from across Australia. The Senate is also referred to as ‘states’ house’,
Senate the upper house of the given each of the six states has 12 senators. Each of the two mainland territories has
Commonwealth Parliament, which two senators.
is comprised of 76 senators who
represent the six states and two The Senate is composed of 76 members who serve a term of six years before requiring
territories across Australia. re-election. Each of these 76 members represents and serves a state or territory.
At an election, voters elect 12 people to represent their state in the Senate, or two for
voters in either of the territories. Unlike the House of Representatives, the Senate
is organised in such a way that ensures equal representation for every state. Small
states like Tasmania have 12 senators, identical to New South Wales, despite NSW’s
population being around 15 times the size of Tasmania’s.

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Table 2 The role of the Senate in law-making
Role Explanation
7A THEORY
Scrutinise legislation The Senate’s primary role is to debate and scrutinise
bills introduced by the House of Representatives.
Law
This can ensure new laws are appropriate and will
achieve their purpose. As the Senate is usually
composed of more independents and smaller political
parties, this allows for a wider range of perspectives
to be considered when debating new bills. To assist
with their scrutinisation, the Senate forms committees
to review areas of law-making interest.
The Senate’s review function often results in new
bills being amended.
Act as a states’ house The Constitution guarantees that all states have equal
representation in the Senate to ensure legislation is not
passed that favours the larger states at the expense of the
smaller states.
Initiate legislation Legislation can originate from the Senate. However, most
legislation is introduced in the House of Representatives.
Law
Money bills specifically can only originate in the
LESSON LINK
lower house.
You will learn more about
parliamentary committees in
9F Parliamentary committees.
REAL WORLD EXAMPLE
Growing Greens
Janet Rice MP is an Australian Greens senator for Victoria. The Australian Greens are
considered a minor party in Australia.
For minor parties, the Senate offers a unique opportunity for bills to be introduced with
a greater chance of being passed, as there is a more diverse composition of members,
compared to the lower house.
In early 2023, Janet Rice introduced the Ending Native Forest Logging Bill 2023, which sought
to repeal the Regional Forest Agreements Act 2002 (Cth) and to amend the Environment
Protection and Biodiversity Conservation Act 1999 (Cth). The Australian Greens are one of the
leading environmental, progressive political parties in Australia. Therefore, members of this
political party take hard stances on national ecological undertakings, such as logging and
deforestation. To give themselves the best chance of their bills being successful, the Greens
often introduce them into the Senate as they have more representation in the Senate with
11 members, compared to just four in the House of Representatives.
A bill that is introduced initially into the Senate will be debated and read at least twice
before it is put to a vote within the chamber.
Figure 3 Janet Rice is the Australian Greens
Adapted from ‘End Native Forest Logging’ (The Greens, n.d.) Senator for Victoria
LEGISLATION
Regional Forest Agreements Act

2002 (Cth)
Biodiversity Conservation Act 1999 (Cth)

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REAL WORLD EXAMPLE
Energy and economics before the Senate

7A THEORY
The Economics Legislation Committee is one of the Senate’s many committees tasked
with inquiring into various matters across Australia. This particular committee, composed
primarily of six senators, investigates the economic impact of proposed legislation and
amendments on areas, such as industry, science and resources, and treasury.
In September 2022, the National Energy Transition Authority Bill 2022 was referred to
the committee for inquiry with a report due in March 2023. Over the six-month period,
the committee held one public inquiry and received 34 written submissions regarding
the bill. In the final report, the committee reported on the various impacts of the National
Energy Transition Authority Bill in relation to areas including economics, human rights, and
regulatory impacts.
This report was tabled on 23 March 2023 and will be used by members of the Senate when
considering whether to vote in favour or against the proposed legislation.
Image: surasak jailak/Shutterstock.com These reports produced by the Senate’s committees are useful for providing context and
Figure 4 The Economics Legislation detail during the law-making process as all Senators are provided with this information
Committee of the Senate inquired into the which they are unlikely to access on their own.
National Energy Transition Authority Bill
2022 between late 2022 and early 2023 Adapted from ‘National Energy Transition Authority Bill 2022’ (Economics Legislation Committee, 2023)
The role of the Crown in Commonwealth

law-making 4.1.1.4
The Governor-General is the Crown’s representative in the Commonwealth
KEY TERM
Parliament. They are appointed by the King on the advice of the prime minister
Governor-General the representative of the day. The primary role of the Governor-General in the law-making process
of the monarch in the Commonwealth is to grant royal assent, the highest form of approval for a piece of legislation
Parliament. moving through the parliament, which allows a bill to become law.
LEGAL VOCABULARY Table 3 The role of the Governor-General in law-making

Royal assent the formal and final
Role Explanation
approval granted by the monarchy,
or a representative of the monarchy, Grant royal assent The Governor-General will sign a bill on behalf of the
for a proposed piece of legislation. Crown after it has been approved by both Houses of the
Commonwealth Parliament. This is a necessary final
step for a bill to become law and usually happens on the
advice of the prime minister.
Withhold royal assent Under s 58 of the Australian Constitution, the

if appropriate to do so Governor-General can refuse to grant royal assent
to a bill. However, this has never happened in practice.
Image: MirasWonderland/Shutterstock.com
Suggest amendments If a mistake is found in the bill after it has been passed
Figure 5 Due to Australia’s monarchical ties to
the United Kingdom, there are key processes in to legislation after it has through both houses, a minister would advise the
the parliamentary system that involve a royal passed both houses Governor-General to return the bill to parliament with
representative of parliament the suggested change, whilst the Governor-General
would also suggest required amendments. This power
Legislation is granted to the Governor-General in s 58 of the
CONSTITUTION
Constitution but has been used very scarcely since
Section 58 parliament first sat in 1901.
LEGAL VOCABULARY Summon the Executive The Governor-General is responsible for selecting
Council and appointing the Executive Council who advise
Executive Council a group of senior
the Governor-General on government matters, while
government ministers with the role
also seeking approval for various modifications
of advising the Crown’s representative
to particular laws.
on government matters.

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DEEP DIVE
Who is Australia’s Governor-General?
7A QUESTIONS
His Excellency General the Honourable David John Hurley AC DSC (Retd) is the
27th Governor-General of the Commonwealth of Australia. Prior to being sworn in as
Governor-General on 1 July 2019, he served as the Governor of New South Wales from
2014 to 2019.
Most of Hurley’s life, prior to his service as a royal representative, was dedicated to
Australian military service. There, his 42-year career culminated in an appointment
as Chief of the Defence Force. Figure 6 The 27th Governor-General,
He is also one of five Governor-Generals to have served two monarchs. David John Hurley, has been the Crown’s
representative in the Commonwealth
Adapted from ‘The Governor-General’s biography’ (The Governor-General of the Commonwealth of Australia, 2020) since 2019
Lesson summary
Australia is a democratic society in which citizens elect their own representatives
in the Commonwealth Parliament.
The Commonwealth Parliament is split into three main branches in the

law-making process.
• The House of Representatives (the lower house) is where the Australian
Government is formed and is where the prime minister sits.
• The Senate (the upper house) acts as a house of review for legislation primarily.
• The Governor-General is the representative of the Crown and approves
all legislation.
Table 4 The roles of the Commonwealth Parliament and the Crown in law-making
Component of the
Role
Commonwealth Parliament
The House of Representatives • Initiate new legislation
• Initiate all legislation that imposes taxation
or spends Commonwealth revenue
• Represent the people in law-making
• Review legislation and propose amendments
• Scrutinise legislation
The Senate • Scrutinise legislation

• Act as a states’ house
• Initiate new legislation
The Crown • Grant royal assent to legislation

• Withhold royal assent
• Suggest amendments to legislation after
it has passed both Houses of Parliament
• Summon the Executive Council
7A Questions
Question 1
Australia operates under a constitutional monarchy.
A. True
B. False

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Question 2
The person responsible for granting royal assent to bills that have successfully passed through both Houses
7A QUESTIONS
of the Commonwealth Parliament is:

A. the Governor.
B. the Attorney-Governor.
C. the Attorney-General.
D. the Governor-General.
Question 3
The primary function of the Senate is to:
A. act as a house of review.
B. act as the ‘territories’ house’.
C. introduce new legislation that imposes taxation.
D. form and house the government of the day.
Question 4
The prime minister is a member of parliament who sits in the Senate.
A. True
B. False
Question 5
Which of the following statements is incorrect about the role of the Crown in the Commonwealth Parliament?
A. The Governor-General has the ability to withhold royal assent.
B. The Governor-General has the sole responsibility of selecting the prime minister on the advice of the King.
C. The Governor-General gives royal assent to bills passed through parliament.
D. The Governor-General may suggest amendments to legislation after it has passed through the
House of Representatives and the Senate.
Question 6
minority majority
The political party that holds the in the House of Representatives will form the government of the day.
Question 7
Which of the following are roles of the House of Representatives in law-making?
A. Grant royal assent to bills
B. Represent the people in law-making
C. Initiate legislation
D. Review legislation
E. Initiate money bills

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Preparing for exams

Standard exam-style
7A QUESTIONS
A bill introduced by the Commonwealth Government successfully passed both the House of Representatives
and the Senate after debate and amendments. The bill is ready to be enacted into law and the prime minister
is eager for the bill’s policy to take effect.
Explain the role of the Governor-General in this scenario.
Describe one role of the House of Representatives in law-making.
Explain the law-making role of the Commonwealth Parliament.
Describe the role of the Senate in the law-making process.
Extended response
Suppose the government of the day has faced ongoing pressure from the public to address price rises
on household goods. Therefore, its master plan is to penalise supermarket corporations by taxing them
for every dollar increase in the price of their products, whilst simultaneously raising public funds. The
government of the day, which does not hold a majority in the Senate, introduces the Cheaper Groceries
Bill 2050.
Question 12
Tick the box to indicate whether the following statements are strengths or limitations of the Commonwealth
Parliament’s law-making in relation to the Cheaper Groceries Bill.

I. The government of the day does not hold a majority in the upper house and therefore,
the legislation will not automatically pass through the Senate, prompting a careful and
thorough review.
II. A diverse Senate and extra scrutiny may slow the progress of legislation passing through
the Commonwealth Parliament.
III. It is essential for the government and elected representatives to respond to the conditions
and needs of people in the electorates across the country.
IV. In the planning of the bill, the specific needs of the larger states, with more representation
in the House of Representatives, may outshine those of smaller states.
Analyse two roles of the Commonwealth Parliament in making the Cheaper Groceries Bill 2050.

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7B The Victorian Parliament and the

Crown in law-making
• the roles of the Crown and the Houses of Parliament (Victorian and
Commonwealth) in law-making
Image: Corona Borealis Studio/Shutterstock.com 7A 7B 7C 7D 7E 7F 7G 7H 7I 7J 7K

During the COVID-19 pandemic, each state
and territory in Australia had different
lockdown laws. For example, Melbourne
was locked down for 245 days, compared 4.1.2.1 4.1.2.2 4.1.2.3
to Sydney, which was locked down for The role of the Legislative The role of the Legislative The role of the
107 days. Do you know why states and Assembly in law-making Council in law-making Crown in Victorian
law-making
territories were all able to make different
lockdown laws?
Lesson introduction
Similar to the Commonwealth Parliament, the Victorian Parliament is composed
of two houses and a representative of the Crown. The Legislative Assembly is the
lower house, which houses the Victorian Government and is led by the premier.
This house primarily acts to introduce new legislation. The Legislative Council
is the upper house which acts as a house of review for the bills from the Legislative
Assembly. Finally, the Governor, acting on behalf of the Crown, provides the final
approval for any proposed Victorian legislation.
The role of the Legislative Assembly

The Legislative Assembly is the Victorian Parliament’s lower house that has 88 elected
KEY TERM
members of parliament (MPs) from across Victoria. Each of these 88 members serves
Legislative Assembly the lower a four-year term and represents an electoral district. At an election, voters elect one
house of the Victorian Parliament, person to represent their district in the Legislative Assembly. Each electoral district
which is comprised of 88 members is determined based on the number of voters within the district, rather than land
of parliament representing the electoral
area, with each district containing between 46,000 - 56,000 eligible voters. This
districts across Victoria.
method of distribution means that vast, regional areas are represented by a singular
LEGAL VOCABULARY MP, whereas inner-city areas may have multiple MPs in a relatively small radius.
Electoral district a geographical area Opposition

comprised of approximately 50,000
Coalition
voters represented by a member
28 members
of the Victorian Parliament.
Greens
4 members
Government
Victorian Labor Party
56 members
Figure 1 The composition of the 60th Legislative Assembly of Victoria, elected in 2022
272 CHAPTER 7: Parliament and the Australian Constitution

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The political party that has the majority of seats in the Legislative Assembly forms
LEGAL VOCABULARY
the government. The leader of this party becomes the premier. Similar to the
Commonwealth Government, some of the members of parliament that belong Premier the leader of an Australian
state government.
7B THEORY
to the party of the government of the day will also be appointed as ministers.
Table 1 The role of the Legislative Assembly

LESSON LINK
Role Explanation
You learnt about ministers in 7A The
Initiate new legislation Most legislation is introduced by ministers, who Commonwealth Parliament and the
are usually members of the Legislative Assembly. Crown in law-making.
Law
As a consequence, the majority of new laws and
proposed changes to laws begin in the Legislative
Assembly. Although ministers initiate most
legislation, this role is shared with all the members
of the Legislative Assembly.
Initiate financial spending The Legislative Council is prevented from

legislation introducing legislation concerned with spending
government funds. Therefore, the Legislative
Bill
Assembly decides how government money
is to be spent, and enacts these spending plans
$ through legislation. This is better known as the

Victorian Budget.
Represent the people Members of the Legislative Assembly are directly

in law-making chosen by voters in their community and will
often receive correspondence from those living
within their district. As representatives of that
community, they should reflect the opinions
and perspectives of a majority of those within
their electorate when introducing, debating,
or suggesting amendments to legislation. If they
fail to do so, they risk being voted out of office
at the next election.
Review legislation and As the government and the Victorian community

propose amendments changes, existing Acts may need to change. The
to laws Legislative Assembly is comprised of members of
parliament who directly represent and understand
the real issues affecting their districts and can,
therefore, propose meaningful amendments.
Scrutinise legislation Bills are rarely introduced by the Legislative

Council, however, when they are, the Legislative
Law
Assembly must act as a house of review. The
members will debate and scrutinise the proposed
legislation, making amendments if necessary. Then,
if the Legislative Assembly approves of the proposed
legislation or reform, it must pass the bill to the
Governor for royal assent.

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REAL WORLD EXAMPLE
MP to modernise library
7B THEORY
In February 2022, Danny Pearson, the Labor MP for Essendon, announced that the Ascot
Vale Library would be receiving $1.5 million in funding to ‘almost triple the floorspace’
of the existing library.
Ascot Vale, and its library, fall into Pearson’s electoral district of Essendon. Therefore,
he is able to directly advocate for specific, local upgrades, like these library improvements,
and funding as a part of his role in the Legislative Assembly.
MPs who are considered by voters as not actively seeking to improve their district through
Image used with permission from DannyPearson.com.au
law-making and policy may face backlash and may even lose their seat in the Victorian
Figure 2 Danny Pearson, MP for Essendon, Parliament at the next state election.
secured funding for an upgrade to a local
library in 2022 Adapted from ‘Funding for major expansion of Ascot Vale library’ (Pearson, 2022)
The role of the Legislative Council

The Legislative Council is the upper house of the Victorian Parliament. It has
KEY TERM
40 elected members from across Victoria who serve a four-year term. It is often
Legislative Council the upper house referred to as the ‘house of review’. Each of these 40 members represents and serves
of the Victorian Parliament which a region. Legislative Council members can also be nominated as ministers to serve
is comprised of 40 members a government portfolio. At an election, voters elect five people to represent their
of Parliament who represent eight
region in the Legislative Council. There are eight regions in Victoria, five of them
regions across Victoria.
covering metropolitan areas, and the remaining include three regional areas.
LEGAL VOCABULARY
Region one of the eight, larger WANT TO KNOW MORE?
divisions of Victoria that Legislative
Every home in Victoria is included in an electoral district and therefore, also a region.
Council members are elected
You can find your own district and region by searching ‘Find my electorate’ and clicking
to represent.
the ‘Australian Electoral Commission’ (2023) webpage.
Table 2 The role of the Legislative Council in law-making
LESSON LINK Role Explanation
You will learn more about the upper Scrutinise legislation The Legislative Council’s primary role is to debate and
house in 7F Parliament’s ability to scrutinise bills introduced by the Legislative Assembly.
Law
make law – the bicameral structure. As the Legislative Council more commonly includes
independents and members from smaller political
parties, this allows for a wider range of perspectives to
be considered when debating new bills or amendments
to legislation. The Legislative Council’s review function
will often result in new bills being amended before they
become part of Victoria’s legislation.
Initiate legislation Legislation can originate from the Legislative Council.

However, most legislation is introduced in the
Law
Legislative Assembly. Bills regarding the expenditure
of Victorian public money cannot be introduced in the
Legislative Council.

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REAL WORLD EXAMPLE
Careful crossbench
7B THEORY
Following the 2022 state election, the Victorian Labor Government requires six extra
votes in the Legislative Council to pass any proposed legislation as it currently holds a
minority in the Victorian Parliament. This means the opposition, the Victorian Greens
Party, and the crossbench, hold the balance of power.
In early-2023, the Victorian Government reintroduced the Health Legislation Amendment
(Information Sharing) Bill, which alters the policy in regard to the mandatory collection
of medical information from Victorian patients.
The opposition, led by Southern Metropolitan Liberal MP, Georgie Crozier, proposed a Image: Tero Vesalainen/Shutterstock.com
number of amendments in regard to privacy. These amendments were considered by the Figure 3 The newly expanded crossbench
Legislative Council and, following a round of amendments to the bill, it passed with the in the 60th Legislative Council pushed for
support of the Victorian Greens Party and the Animal Justice Party. amendments regarding medical records
The Legislative Council is crucial as a house of review in the law-making process,

and its composition often allows for a variety of political perspectives to weigh
in on proposed legislation.
Adapted from ‘Crossbenchers claim credit for ‘more transparent’ state parliament’ (Hall, 2023)
The role of the Crown in Victorian LESSON LINK
law-making 4.1.2.3 You learnt about the Executive Council

in 7A The Commonwealth Parliament
The Governor is the Crown’s representative in the Victorian Parliament. They are and the Crown in law-making.
appointed by the King on the advice of the Victorian premier of the day. The primary
role of the Governor in the law-making process is to grant royal assent, which is the
final approval for a piece of legislation moving through the Victorian Parliament and KEY TERM
which allows the bill to become state legislation. Governor the representative
Table 3 The role of the Governor in law-making of the monarch in each of the six
Australian states.
Role Explanation
Grant royal assent The Governor will sign a bill on behalf of the Crown
after it has been approved by both houses of the
Victorian Parliament. This is a necessary final step for
a bill to become law and usually happens on the advice
of the premier. The Governor can also choose
to withhold royal assent, however, this is very rare.
Act as a Head of State The Governor acts as the Head of State for Victoria,
meaning they hold the ultimate monarchical state
powers and are the supreme representative of Victoria.
This power is held without the oversight of the King or
the monarchy.
Chair the Executive The Governor acts on the advice of the Executive
Council Council and often meets with these ministers of the
Victorian Government to discuss any legislative matter
that comes before the Governor’s office.

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DEEP DIVE
Who is Victoria’s Governor?

7B THEORY
Her Excellency Professor the Honourable Margaret Gardner AC is the 30th Governor
of Victoria after being sworn in on 9 August 2023. She is the second female to hold the
title, succeeding Linda Dessau.
Prior to her service as Governor, Gardner served as President and Vice-Chancellor to Monash
University as well as RMIT. In 2007, she was recognised for her service to tertiary education
through an appointment to an Officer of the Order of Australia.
Image used with permission from State of Victoria Despite serving as a representative of the King and the monarchy, Gardner has expressed
Figure 4 The 30th Governor of Victoria, her support for Australia becoming a republic.
Margaret Gardner, has been the Crown’s
representative in Victoria since 2023 Adapted from ‘About the Governor’ (Governor of Victoria, 2023)
LESSON LINK Lesson summary

You will learn more about the The Victorian Parliament is split into three main branches in the law-making process.
debate on Australia becoming
a republic in 10E Possible future • The Legislative Assembly (the lower house) is where the Victorian Government
constitutional reform. is formed and where the Victorian premier sits.
• The Legislative Council (the upper house) acts primarily as a house of review
for proposed legislation.
• The Governor of Victoria is the representative of the Crown and provides final
approval for all bills.
Table 4 The roles of the Victorian Parliament and the Crown in law-making
Component of the
Role
Victorian Parliament
The Legislative Assembly • Initiate new legislation
• Initiate financial spending legislation
• Represent the people in law-making
• Review legislation and propose amendments
• Scrutinise legislation
The Legislative Council • Scrutinise legislation

• Initiate new legislation
The Crown • Grant royal assent to legislation

• Act as a Head of State
• Chair the Executive Council
USEFUL TIP
An easy way to remember the difference between the Legislative Assembly and
Legislative Council is to think about your school assemblies in which all students
gather, much like the larger Legislative Assembly (the lower house). On the other
hand, the Legislative Council is like a school council or staff meeting; there are fewer
members, much like the Legislative Council (upper house).

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7B Questions
7B QUESTIONS
Question 1
The Victorian Parliament has four key branches.
A. True
B. False
Question 2
Which of the following statements are correct about the Victorian Parliament and the Crown in law-making?
A. The Governor gives royal assent to legislation passed through the Legislative Council and the
Legislative Assembly.
B. The Governor is appointed on the advice of the Victorian premier.
C. The Crown at the Victorian level is appointed on the advice of the prime minister.
Question 3
The final step for a bill to become law is for it to receive royal assent. A bill can be granted royal assent
on behalf of the Crown by the:
A. Premier of Victoria.
B. Governor of Victoria.
C. Governor-General.
D. Legislative Council.
Question 4
The Victorian premier is the leader of the party, or coalition, that has the support of a majority
of members in the:
A. Legislative Assembly.
B. Legislative Council.
C. Senate.
D. House of Representatives.
Question 5
Which of the following are features of the Legislative Assembly? (Select all that apply)
A. There are 88 members in the Legislative Assembly.
B. Each member of the Legislative Assembly is elected for a term of four years.
C. A maximum of six members of the Legislative Assembly can be appointed as ministers.
D. Most new bills or proposed changes to existing laws are introduced in the Legislative Assembly.

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Question 6
7B QUESTIONS
Legislative Assembly Legislative Council
The Victorian Parliament consists of two houses. The is the upper house of the Victorian
Parliament and is comprised of 40 elected law-makers across Victoria whilst the is the
lower House of Parliament.
Question 7
The Legislative Council is made up of 88 members chosen from eight regions in Victoria. These members
all face re-election every four years.
A. True
B. False
Question 8
Tick the box to indicate whether each of the following statements are a role of the Legislative Assembly,
the Legislative Council, or the Crown in law-making in Victoria.
Statement Legislative Assembly Legislative Council Crown

I. Initiate legislation
II. Review and scrutinise legislation
III. Provide royal assent
IV. Initiate financial spending legislation
Preparing for exams

Standard exam-style
Explain one role of the Victorian lower house.
Explain the role of the Legislative Council in the law-making process.
Describe two roles of the Governor in law-making.

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Extended response
7B QUESTIONS
Question 12
Tick the box to indicate whether each of the following are roles or features of the Legislative Assembly,
Legislative Council, or the Crown in the Victorian Parliament’s law-making.
Statement Legislative Assembly Legislative Council Crown

I. The composition of this house more commonly
includes independents and members from
smaller political parties. This allows for a wider
range of perspectives to be considered when
debating new bills.
II. This branch of the law-making process signs off

on all bills after they have been approved by both
houses of the Victorian Parliament.
III. The 88 members are directly chosen by the

people in their electoral district and, therefore,
should reflect society’s values in law-making.
IV. A majority of new laws and proposed changes

to existing laws begin in this house. Although
ministers initiate most legislation, this role is
shared with all the members.
Analyse the roles of the Victorian Parliament in creating new legislation.

Distinguish between the Commonwealth Parliament and Victorian Parliament.

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7C The division of powers

• the law-making powers of the state and Commonwealth parliaments, including

exclusive, concurrent and residual powers
7A 7B 7C 7D 7E 7F 7G 7H 7I 7J 7K
Image: Yuganov Konstantin/Shutterstock.com
‘You have power. And with great power,

there must also come great responsibility.’ 4.1.3.1 4.1.3.2 4.1.3.3
—Uncle Parker (Spider-Man) Exclusive powers Concurrent powers Residual powers
When thinking about law-making, it is
important to consider who has the power
to make different laws, where this power
comes from, and how it impacts the lives
of everyday citizens.
Lesson introduction
The Australian Constitution establishes and divides law-making powers into three
KEY TERM
categories; exclusive, concurrent, and residual. Specifically, these powers are split
Division of powers the constitutional and shared between the Commonwealth Parliament and each state parliament.
division of law-making powers It is important to have a division of powers to avoid any abuses of power and
between the Commonwealth and to share the responsibility of law-making amongst different law-making bodies.
state parliaments.
LESSON LINKS
You learnt about the Commonwealth Concurrent powers
Exclusive powers
Parliament in law-making in 7A The Commonwealth Residual powers
Commonwealth
Commonwealth Parliament and the Parliament and State parliaments
Parliament
Crown in law-making. state parliaments
You learnt about the Victorian

Parliament in law-making in 7B The
Victorian Parliament and the Crown
in law-making.
Figure 1 The division of powers
Exclusive powers 4.1.3.1

Exclusive powers can only be exercised by the Commonwealth Parliament in
KEY TERM
law-making, as per ss 51 and 52 of the Australian Constitution. State parliaments are
Exclusive powers law-making powers not permitted to pass legislation on these matters. There are few Commonwealth
granted only to the Commonwealth law-making powers that are exclusive powers.
Parliament by s 51 and s 52 of the
Australian Constitution. Exclusive powers permit the Commonwealth Parliament to legislate in areas such as:
• customs and border protection
• the control of the armed forces
CONSTITUTION
• currency
Section 51 • foreign affairs
Section 52
• Medicare
• overseas trade.

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REAL WORLD EXAMPLE
7C THEORY
to refugee detention.
Asylum seekers detained again after being released following
legislative amendments
With the constitutionally vested power to legislate on migration, the Commonwealth
Parliament amended the Migration Act 1958 (Cth) to state that an aggregate sentence of LEGISLATION
imprisonment (a single sentence imposed for multiple offences) can be used as grounds
for visa cancellation. Previously, a High Court ruling stated aggregate sentences could not Migration Act 1958 (Cth)
be used as a reason for automatic visa cancellation, and around 160 people were released
from detention. However, as a result of the amended legislation, a number of people
were detained again and can no longer live in their communities. This has led to outcry
from asylum seeker advocates and detainees, who denounced the Commonwealth
Parliament for its decision.
Adapted from ‘Australian government urged to ‘stop playing with people’s lives’ as people returned to detention’
(Doherty et al., 2023)
Image: woraatep suppavas/Shutterstock.com

Figure 2 Asylum seekers who were once allowed to live freely in Australia have been detained
again following amendments to migration legislation
Concurrent powers 4.1.3.2

Concurrent powers are shared between the Commonwealth and state parliaments,
KEY TERM
meaning both parliaments can pass legislation in areas requiring the use of concurrent
law-making powers. Most powers granted to the Commonwealth Parliament by s 51 of Concurrent powers law-making
the Constitution are classified as concurrent powers as they are shared with the states. powers granted to both the
As both the Commonwealth and states can exercise concurrent powers, situations may Commonwealth and state parliaments.
arise where state and federal laws conflict. In such circumstances, the Constitution
outlines the necessary processes to resolve the conflict.
LESSON LINK
Concurrent powers permit the Commonwealth and state parliaments to legislate
in areas such as: You will learn more about how
the Constitution resolves conflicts
• marriage and divorce between state and federal legislation
• taxation in 7D Section 109 of the Australian
Constitution.
• banking
• railway construction
• trade and commerce between the states of Australia.
DEEP DIVE
Going to the chapel and we’re gonna get married!

An example of concurrent law-making power is marriage, which means there are both
Commonwealth and state laws about marriage. For example, the Commonwealth Marriage
Act 1961 (Cth) defines ‘marriage’ as ‘the union of two people to the exclusion of all others, LEGISLATION
voluntarily entered into for life’. On the other hand, the Victorian Parliament has also
passed laws on marriage, with s 31 of the Births, Deaths and Marriages Registration Act 1996 Marriage Act 1961 (Cth)
(Vic) requiring all marriages in Victoria to be listed on the register of marriages. Births, Deaths and Marriages
Registration Act 1996 (Vic)

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Residual powers 4.1.3.3

Whilst the Commonwealth Parliament requires a ‘head of power’ to create legislation,
7C THEORY
states have the power to make laws on any subject matter, except in areas over which
the Commonwealth Parliament has exclusive power. A ‘head of power’ means that
the Commonwealth Parliament can only create legislation on subject matter that is
explicitly mentioned in the Constitution. For example, the Commonwealth Parliament
CONSTITUTION can make laws about currency because s 51(xii) of the Australian Constitution
explicitly states it can do so, and therefore provides the Commonwealth with a ‘head
Section 51(xii) of power’ to legislate over currency. On the other hand, state parliaments require
no ‘head of power’ in order to create legislation. Residual powers belong solely
to the state parliaments and they are not explicitly stated in the Australian or state
KEY TERM
constitutions. This also means that laws within the area of residual law-making are
Residual powers law-making likely to differ between states, as each state has the ability to pass laws specific
powers that are not granted to the to their state’s needs and interests.
Commonwealth Parliament in the
Residual powers permit state parliaments to legislate in areas such as:
Australian Constitution and therefore
belong to the state parliaments. • education
• agriculture
• police
• prisons
• criminal law.
REAL WORLD EXAMPLE
Toot, toot, chugga chugga, Big Red P plates

As road laws are legislated using residual powers, this means each state has different laws
regarding when individuals can get their learner permits and P1 licences. For example,
in Victoria you must be at least 18 years old before applying for your P1 licence. On the
other hand, in New South Wales, the minimum age for applying for your P1 licence
is 17 years old.
Adapted from ‘How to get your Ps’ (VicRoads, 2023) and ‘Provisional P1 licence’ (NSW Government, 2023)
USEFUL TIP
When describing any three of the
law-making powers, try to avoid
using the name in the definition. For
example, if you need to explain what
‘exclusive powers’ are, avoid reusing
the term ‘exclusive’. Instead, describe
it as the law-making powers that only Image: Rusty Todaro/Shutterstock.com
the Commonwealth can exercise. Figure 3 The minimum age required to get a P1 licence differs between states
WANT TO KNOW MORE?

Upon graduating year 12, NSW students receive a HSC certificate, whilst Victorian
students are awarded a VCE certificate. This is because education is a residual area
of law-making, meaning each state parliament has passed different legislation to govern
its own school system. You can find out more about the Australian education system
by searching ‘Australian school systems across different states and territories’ and
clicking the relevant webpage (australiaeducation.info, 2023).

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Lesson summary
• The Australian Constitution outlines which law-making powers belong
7C QUESTIONS
WANT TO KNOW MORE?
specifically to the Commonwealth Parliament and which are shared between
the Commonwealth and state parliaments. This lesson has provided some
examples of different areas of law
• Residual powers are not explicitly mentioned in the Constitution and are each law-making power can legislate
exercised by the state parliaments. in. You can find out more about how
• The division of powers ensures law-making responsibilities are distributed exclusive, concurrent, and residual
between the Commonwealth and state parliaments, and acts as a safeguard powers are exercised in law-making by
searching ‘Three levels of government:
against abuses of powers in law-making.
governing Australia’ and clicking
Table 1 Summary of the division of powers the ‘Parliamentary Education Office’
(2022) webpage.
Relevant
Power Parliament section(s) of the Examples
Constitution
Exclusive powers Commonwealth ss 51 and 52 • Currency
Parliament • Foreign affairs
• Defence
Concurrent Commonwealth s 51 • Marriage

powers and state • Taxation
parliaments
• Banking
Residual powers State parliaments n/a • Health

• Education
7C Questions
Question 1
Law-making powers are divided into:
A. exclusive, currents, and residents.
B. Commonwealth Parliament and local government offices.
C. executive, legislative, and judiciary powers.
D. exclusive, concurrent, and residual powers.
Question 2
A Federal Labor MP and Victorian Liberal MP both want to pass different laws about taxation in their
respective parliaments. This is possible because concurrent law-making powers are shared between
the Commonwealth and state parliaments.
A. True
B. False
Question 3
Which of the following is the section of the Constitution that residual powers are contained in?
A. Section 109 of the Constitution.
B. Section 128 of the Constitution.
C. Section 90 of the Constitution.
D. None of the above.

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Question 4
7C QUESTIONS
Commonwealth Parliament state parliaments
Exclusive powers are law-making powers granted only to the , through ss 51 and 52 of the
Question 5
Tick the box to indicate whether the following subject matters fall within concurrent powers
or residual powers of law-making.
Subject matter Concurrent powers Residual powers

I. Railway construction
II. Police
III. Taxation
IV. Marriage and divorce
V. Agriculture
Question 6
Laws regarding foreign affairs can only be initiated and passed by the Commonwealth Parliament as this
subject matter is an exclusive power.
A. True
B. False
Question 7
The division of powers ensures that: (Select all that apply)
A. law-making bodies share the responsibilities of law-making.
B. there is a safeguard against abuse of law-making powers.
C. only the Commonwealth Parliament has the power to pass legislation.
D. the state parliaments can override Commonwealth legislation.
Preparing for exams

Standard exam-style
Calliope is a member of the Legislative Assembly and wishes to introduce a bill about currency into the
Victorian Parliament.
Would this bill be valid? Justify your response.
Describe one way the Australian Constitution acts as a restriction on the law-making powers of the
state parliaments.
With reference to one example, explain exclusive powers.

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‘Parliaments in different states can make different laws in the same area of law’.
7C QUESTIONS
Do you agree with this statement? Justify your response.
Distinguish between exclusive and concurrent powers.
Extended response
Question 13
Tick the box to indicate whether each of the following statements are true or false about the law-making
powers of the Commonwealth and state parliaments.

I. A state parliament can only make law about areas that fall within the residual law-making powers.
II. The Commonwealth Parliament can make laws about areas that fall within the exclusive law-
making powers and concurrent law-making powers.
III. The Commonwealth Parliament can make laws about any area for which the states have not
already made law.
IV. A state parliament can make laws about any subject matter that is not within the
Commonwealth Parliament’s exclusive law-making powers.
‘State parliaments cannot make laws about any area for which the Commonwealth parliament has the power
to make laws.’
Do you agree with this statement? Justify your answer by explaining the different types of law-making powers
of the Commonwealth and state parliaments.

Dario is a Federal MP who wants to introduce a bill into the House of Representatives regarding the improvement
of healthcare access for prisoners in state correctional facilities. He has been informed that his bill is unlikely
to be successful or could potentially be deemed invalid in the future.
a. Explain one role of the House of Representatives in this scenario. 3 MARKS
b. Explain why Dario’s bill is unlikely to be successful. Justify your answer. 3 MARKS

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7D Section 109 of the

Australian Constitution
• the significance of section 109 of the Australian Constitution
7A 7B 7C 7D 7E 7F 7G 7H 7I 7J 7K
Image: Featureflash Photo Agency/Shutterstock.com
To play for the Wildcats or to live out his

4.1.4.1 4.1.4.2
true desires on stage? Just as Troy, in High
School Musical, had two conflicting dreams, Section 109 of the The significance
Australian Constitution of section 109
sometimes laws can also be conflicting. Yet,
Troy had to make a choice. In a similar way,
a choice must be made as to which law,
or which sections of legislation, can remain
valid when there are conflicting laws.
LESSON LINK
Lesson introduction
You learnt about exclusive, concurrent, The Australian Constitution establishes and divides the law-making powers of the
and residual powers in 7C The division Commonwealth and state parliaments into exclusive, concurrent, and residual powers.
of powers. However, as concurrent law-making powers are shared between the Commonwealth
and state parliaments, conflicts between state and Commonwealth legislation can arise.
That is, there is a possibility that two laws on the same topic will be inconsistent.
CONSTITUTION The Australian Constitution resolves this issue in section 109.
Section 109
Section 109 of the Australian

Constitution 4.1.4.1
The Commonwealth and state parliaments share concurrent powers of law-making,
and in practice, this can result in conflicting legislation. For example, the
Commonwealth Parliament may pass legislation for taxation, and the states
could also make laws about taxation that directly contradict this Commonwealth
legislation. In such situations where the laws are inconsistent, section 109 of the
Australian Constitution states:
‘When a law of a State is inconsistent with a law of the Commonwealth, the
latter shall prevail, and the former shall, to the extent of the inconsistency,
be invalid.’
In other words, the Commonwealth law will remain valid and the inconsistent part
of the state legislation will no longer be applicable.
The Commonwealth law will prevail ‘To the extent of the inconsistency’ States can still make laws on the topic
If an inconsistency arises between state The words ‘to the extent of the Section 109 does not change the areas
and Commonwealth legislation, the inconsistency’ are important here. of law the states and the Commonwealth
timing of each law’s creation is Only the sections of state law that are can legislate in. The effect of s 109 is to
irrelevant. It does not matter whether the inconsistent with Commonwealth law render invalid any section of state law that
Commonwealth or state law was passed will be declared invalid. The remaining is inconsistent with Commonwealth law.
first. If they conflict with one another, sections of the state law, that are not Therefore, states retain the ability to make
the Commonwealth law will prevail in conflict with Commonwealth law, will laws on concurrent law-making topics,
to the extent of the inconsistency. continue to operate. they are only limited in some
circumstances where their state law
conflicts with federal laws.
Figure 1 Key points regarding the operation of s 109 of the Australian Constitution

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The significance of section 109 4.1.4.2

Section 109 of the Australian Constitution is significant for various reasons.
7D THEORY
Whilst it provides a way to resolve inconsistencies between state and
Commonwealth legislation, it can also impact state law-making abilities.
Table 1 The significance of s 109
Significance of s 109 Explanation

Resolves inconsistencies Section 109 provides a method to resolve
inconsistencies between state and Commonwealth
Commonwealth law legislation. Once the law has been challenged
before the courts, the Commonwealth law will
State law prevail and the inconsistent section of the state
law will be declared invalid.
Restricts the law-making Section 109 restricts the law-making powers

powers of the states of a state in regard to its concurrent powers.
Whilst states retain the ability to pass laws
on these matters, their ability to maintain these
laws can be limited. This is because any part
STOP of state law that is inconsistent with federal law,
will be declared invalid when challenged in
the courts.
Requires a case to be brought A state law will only be declared invalid by the USEFUL TIP
forward in the courts for an courts, according to s 109, when the validity
It is important to understand that
inconsistent state law to be of the law has been challenged, usually by the
section 109 does not automatically
considered invalid Commonwealth. In other words, s 109 will
guarantee inconsistent state laws will
not automatically deem an inconsistent state be deemed invalid. The application
law invalid. of section 109 only occurs once the
Court House
legislation has been challenged in court,
where it can then be deemed invalid.
In practice, this means contradictory
state and Commonwealth laws may be
operating at the same time until legal
Allows state laws previously If part of a state law was previously deemed action occurs.
deemed invalid to come into invalid and inconsistent with Commonwealth law,
force if the Commonwealth and the conflicting Commonwealth law is changed
law is changed or removed or removed so that the inconsistency no longer
exists, the inconsistent part of the state legislation
can come into effect again.
LEGAL CASE
McBain v State of Victoria (2000) 99 FCR 116

Facts
Dr John McBain, a Melbourne doctor, consulted a single woman, Lisa Meldrum, who
wished to conceive through IVF using a sperm donor. However, Meldrum was informed
that it was illegal under Victorian legislation to administer IVF treatment because she
was single. Under s 8(1) of the Infertility Treatment Act 1995 (Vic), a woman was only
eligible for IVF treatment if she was either married or living in a de facto relationship.
However, s 22 of the Sex Discrimination Act 1984 (Cth) states it is unlawful for a person who
provides goods or services, or makes facilities available, to discriminate against another
person on a range of grounds, including sex, gender, and marital or relationship status.
Continues →

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LEGAL CASE
McBain v State of Victoria (2000) 99 FCR 116 – Continued

7D QUESTIONS
Legal issue
The court needed to decide whether the Victorian Act was discriminatory for prohibiting
IVF treatment based on one’s marital or relationship status.
Decision
Justice Sundberg found that the Victorian legislation violated s 22 of the Commonwealth’s
LEGISLATION Sex Discrimination Act 1984 (Cth), and was therefore invalid under s 109 of the Constitution.
Thus, it was determined that a woman does not need to be married or in a de facto
Sex Discrimination Act 1984 (Cth) relationship in order to receive IVF treatment.
Significance
This case deemed s 8(1) of the Infertility Treatment Act 1995 (Vic) invalid, demonstrating
that state and Commonwealth laws must remain consistent.
Lesson summary
• Section 109 of the Australian Constitution resolves inconsistencies that may arise
between state and Commonwealth laws in areas of concurrent law-making powers.
• State laws are not automatically deemed invalid, they must first be challenged
in the courts. If a state law is deemed invalid, only the part of the state law that
is inconsistent with the Commonwealth law is invalid, not the entire Act.
• Section 109 is significant for multiple reasons. Not only does it provide a means
of resolving inconsistent legislation, but it can also restrict state law-making
abilities to a certain extent.
7D Questions
Question 1
Section 109 applies to conflicts between:
A. concurrent and exclusive powers.
B. the prime minister and the opposition.
C. state and Commonwealth laws.
Question 2
If a state law is deemed inconsistent with Commonwealth law, the entirety of the state law is invalid.
A. True
B. False
Question 3
challenged not invalid
A state law that is inconsistent with a Commonwealth law is automatically deemed
unless it is in the courts.

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Question 4
If a state law is deemed invalid by section 109, the state can no longer legislate in the area of law in which
7D QUESTIONS
the invalid section was made.
A. True
B. False
Question 5
Section 109 is significant because: (Select all that apply)
A. it provides a way to resolve inconsistencies between state and Commonwealth laws.
B. the Constitution was written a long time ago.
C. it only allows the Commonwealth Parliament to make laws.
D. it can restrict the states’ concurrent law-making powers as they cannot maintain laws that are
inconsistent with Commonwealth legislation if the courts have invalidated them.
E. the invalid part of state legislation may come into effect if the Commonwealth law is removed or amended
in the future.
Preparing for exams

Standard exam-style
Outline the purpose of section 109 of the Australian Constitution.
If the Victorian Parliament was to pass legislation making it easier for companies to access personal online
banking data, whilst existing Commonwealth laws protect consumer data and privacy, how might section 109
of the Constitution be relevant?
The Commonwealth Parliament recently passed the Complementary Coffee Act 2213 (Cth), which requires
all companies to provide free coffee to their employees in the morning. However, the Victorian Parliament had
previously passed the Cancel Caffeine Act 2212 (Vic), which prohibited employees from consuming caffeine
before 12 pm.
With reference to the scenario, describe two reasons why section 109 of the Australian Constitution
is significant.
Extended response
Question 9
Which of the following statements are limitations to states’ law-making powers as a result of section 109?
A. If an inconsistent state law is challenged in the courts, it will be deemed invalid and the Commonwealth
law will prevail over the inconsistent section of the state law.
B. Inconsistent state laws are not automatically deemed invalid unless they are challenged in the courts.
C. Invalid components of state legislation may come into effect if the conflicting Commonwealth law
is changed or removed in the future.
D. The ability of the states to exercise concurrent law-making powers can be limited by section 109
and the courts.

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‘Section 109 of the Australian Constitution restricts the law-making abilities of the state parliaments.’
7D QUESTIONS


Fern is a politician in the Legislative Council and is looking to introduce a bill that would restrict Victorian
matrimony to certain hours on a Wednesday. This contradicts the existing Commonwealth Marriage Act 1961
(Cth), which states that ‘marriages may be solemnised on any day at any time’.
a. With reference to law-making powers, outline whether Fern is allowed to introduce bills regarding marriage. 2 MARKS
b. If this bill were to be passed, describe why it would likely be deemed invalid. 2 MARKS

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7E High Court cases and their impact

on law-making powers
• one High Court case which has had an impact on state and Commonwealth
law-making powers
7A 7B 7C 7D 7E 7F 7G 7H 7I 7J 7K
Image: Stefano Buttafoco/Shutterstock.com
Just like the Jedi Council was the highest

authority of the Jedi Order and determined
4.1.5.1 4.1.5.2 4.1.5.3
Anakin should not be granted the rank
The High Court’s Commonwealth v R v Brislan; Ex parte of Master, the High Court is the highest
impact on state Tasmania (1983) Williams (1935)
and Commonwealth 158 CLR 1 54 CLR 262 authority in the Australian court system
law-making powers and possesses the power to interpret and
4.1.5.2.1 T
he impact of 4.1.5.3.1 T
he impact of hear cases involving the Constitution.
the Tasmanian the Brislan case Similar to when the Jedi Council’s decision
Dam case led to Anakin becoming Darth Vader,
having wide-ranging effects on the galaxy,
the decisions of the High Court also have
wide-ranging effects on law-making powers.
Lesson introduction LESSON LINK

The Australian Constitution establishes the division of law-making powers between You learnt about the division of
the Commonwealth Parliament and the state parliaments. However, there are law-making powers in 7C The division
circumstances where the power of the Commonwealth or a state parliament of powers.
to legislate in a particular area is contested. Therefore, when conflict arises and
matters of the Constitution are brought before the High Court, its determination and
the outcome of the case can shape and influence the division of law-making powers,
thus altering the subject matter over which the different parliaments can legislate.
The High Court’s impact on state and

Commonwealth law-making powers 4.1.5.1
The Australian Constitution divides law-making powers into three categories:
USEFUL TIP
exclusive, concurrent, and residual. Each power enables the relevant parliament to
legislate and create new laws in certain areas. For example, only the Commonwealth The VCE Legal Studies Study Design
Parliament can exercise exclusive powers, such as the power to make laws about requires you to learn ‘one High Court
case which has had an impact on
currency, whilst the Commonwealth Parliament is unable to make laws in areas
state and Commonwealth law-making
where state parliaments have residual powers, such as in relation to education. powers’. This lesson provides an
Both the Commonwealth and state parliaments can legislate in areas concerning in-depth analysis of two different
concurrent law-making powers, for instance, taxation, where the Commonwealth cases, but it is suggested that you
legislates in regard to nationwide taxes, such as the goods and service tax (GST), only focus on learning about one
and the states legislate in regard to state-specific taxes, such as land tax. of these cases in detail.

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7E THEORY
Image: Tawunap159/Shutterstock.com
Figure 1 The High Court of Australia, located in Canberra
Circumstances may arise where there is a dispute between a state parliament and the
LEGAL VOCABULARY Commonwealth Parliament regarding the division of law-making powers and whether
Ultra vires a Latin term meaning laws that have been passed go beyond the scope of the constitutionally outlined
‘beyond the powers’; used in law divisions of power. In these situations, the High Court will hear and determine the
to describe an act by a government dispute, handing down a final and binding outcome. Decisions made by the High
body or corporation that requires legal
Court regarding the division of law-making powers set a precedent, which can only
authority but is done without it.
ever be changed if the wording of the Constitution is altered by a referendum, or if
a subsequent case on the same issue leads to a different High Court determination,
setting a new precedent (as the High Court is not bound by its own decisions).
In carrying out its role, the High Court may declare a law, or part of a law, ultra
vires if it determines the legislation was enacted beyond the law-making powers
of parliament, meaning the Act becomes invalid and cannot be legally enforced.
Justice O’Connor reiterated in Junburnna Coal Mine NL v Victorian Coal Miners’
Association (1908) 6 CLR 309 that the Constitution must be interpreted in ‘broad
and general … terms… where the question is whether the Constitution has used
an expression in the wider or in the narrower sense, the Court should… always lean
to the broader interpretation’. That is, the attitude of the High Court is that the
powers of the Commonwealth will always be interpreted broadly, as was intended
when the Constitution was first drafted.
Commonwealth v Tasmania (1983)

158 CLR 1 4.1.5.2
Background information
Australia is a party to numerous international treaties, which are agreements
LEGAL VOCABULARY between international actors, such as countries and international organisations,
International treaty an agreement confirming they will uphold certain obligations. The executive branch of the
between two or more countries or Commonwealth government has the power to enter into these agreements as
international organisations, that creates
per s 61 of the Constitution. Australia is bound to uphold these obligations by
international rights and obligations.
international law once the treaty receives ratification. Commonwealth legislation
Ratification the formal agreement
must be created
or undertaking by a country to be
bound by the terms of an international or amended to give effect to Australia’s obligations under international law, at which
treaty, which provides the country point they become part of Australian domestic law.
time to ensure domestic legislation Section 51(xxix) of the Constitution states:
is consistent with the treaty.
‘The Parliament shall, subject to this Constitution, have power to make laws
for the peace, order, and good government of the Commonwealth with respect
CONSTITUTION to external affairs.’
Section 61 This means the Commonwealth Parliament has the law-making power to legislate
on matters considered ‘external affairs’. However, the Constitution does not explicitly
Section 51(xxix)
state the meaning of ‘external affairs’, so the High Court has needed to interpret these
words in relation to a number of cases over the years, such as in Commonwealth v
Tasmania (1983) 158 CLR 1 (Tasmanian Dam case).

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Facts LESSON LINK

• In 1945, Australia signed and ratified an international treaty called the Convention You will learn about international
Concerning the Protection of the World Cultural and Natural Heritage (now known treaties and ratification in
7E THEORY
as the World Heritage Convention). The treaty created an international obligation 7G Parliament’s ability to make law
to protect and conserve sites listed on the ‘World Heritage List’. – international pressures.
• The Tasmanian government intended to dam the Franklin River to create

a source of hydroelectricity in 1978, which would mean the flooding of the river.
Subsequently, the Tasmanian parliament passed the Gordon River Hydro-Electric LEGISLATION
Power Development Act 1982 (Tas).
Gordon River Hydro-Electric Power
• The construction of dams is not an exclusive power of the Commonwealth Development Act 1982 (Tas)
as it is not stated within the Constitution, therefore states have the residual
law-making power to legislate with respect to dam construction. As a result,
Tasmania was able to create this dam construction legislation.
• Following public outcry against the construction of the dam, the Franklin area was
listed on the World Heritage List by the United Nations Educational, Scientific and
Cultural Organisation (UNESCO) in November 1982. This meant Australia was
now obliged to protect and conserve the Franklin River under international law.
• In 1983, the newly elected Labor government passed the World Heritage Properties LEGISLATION
Conservation Act 1983 (Cth), giving legislative effect to Australia’s obligations
under the World Heritage Convention. World Heritage Properties Conservation
Act 1983 (Cth)
• Sections 6 and 9 of the World Heritage Properties Conservation Act 1983 (Cth),
National Parks and Wildlife Conservation
in conjunction with s 69 of the National Parks and Wildlife Conservation Act 1975 Act 1975 (Cth)
(Cth) prohibited excavation, clearing, and other activities within the Tasmanian
Wilderness World Heritage Area.
• Consequently, these sections prevented the construction of the Franklin River dam.
Legal issues
• The Tasmanian Government challenged the World Heritage Properties
Conservation Act 1983 (Cth), claiming the Act was in breach of the Constitution
as the construction of dams is not listed as an area that the Commonwealth
can legislate on using either their exclusive or concurrent law-making powers.
The Tasmanian Government therefore claimed the Commonwealth had no
constitutional power to create this legislation, meaning the legislation was invalid.
• In contrast, the Commonwealth government claimed it had the power to
legislate in relation to the construction of the dam because prohibiting the dam’s
construction had the effect of upholding Australia’s international obligations
Figure 2 The Nelson Falls, situated in the
outlined in the World Heritage Convention. Therefore, they argued laws seeking Franklin-Gordon Rivers National Park in
to uphold treaty obligations could validly be created according to the external Tasmania
affairs power, as per s 51 (xxix) of the Constitution.
• The High Court was required to determine whether ss 6 and 9 of the World
Heritage Act 1983 (Cth) and s 69 of the National Parks and Wildlife Conservation
Act 1975 (Cth), including the World Heritage (Western Tasmania Wilderness)
Regulations were valid, or beyond the powers of the Commonwealth.
Decision
• In a 4:3 majority, the High Court found that the external affairs power allowed
the Commonwealth to legislate in areas of residual power if the Commonwealth
was upholding its international obligations.
• The High Court determined s 69 of the National Parks and Wildlife Conservation
Act (Cth) was wholly invalid, as well as other operative provisions of the World
Heritage Properties Conservation Act 1983 (Cth). However, importantly, the High
Court determined s 9 of the World Heritage Properties Conservation Act 1983
(Cth), among some of the other regulations established by the Commonwealth,
were valid. This meant that it was unlawful for the dam to be constructed, as the
construction of the dam breached the Commonwealth legislation, which was
giving effect to Australia’s international obligations.

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• Justices Mason, Murphy, and Brennan agreed that international agreements

LESSON LINK
entered into must be genuine and not created solely for the purpose of acquiring
You learnt about s 109 of the legislative power.
Constitution in 7D Section 109 of the
7E THEORY
Australian Constitution. • Justices Mason, Murphy, Brennan, and Deane determined that, once a genuine
international treaty has been entered into, the Commonwealth has the ability
to implement the obligations of the treaty into Australian law, even if doing
LEGISLATION so means the Commonwealth is legislating in an area of residual power.
• The effect of this decision was to render the state legislation, the Gordon River
Environmental Protection and Biodiversity
Hydro-Electric Power Development Act 1982 (Tas), invalid to the extent that
Conservation Act 1999 (Cth)
it was inconsistent with the National Parks and Wildlife Conservation Act 1975
(Cth), in accordance with s 109 of the Constitution.
CONSTITUTION • Overall, the law-making powers of the Commonwealth were expanded as the
four-person majority found the Commonwealth could make legislation under the
Section 109
external affairs power as long as this legislation genuinely gave effect to a treaty.
Section 92
The impact of the Tasmanian Dam case 4.5.1.2.1
Table 1 The impact of the Tasmanian Dam case on law-making powers
Significant effects on law-making powers Limitations of the case’s impact on law-making powers
• The ‘external affairs’ power was interpreted to allow • The external affairs power is subject to constitutional
the Commonwealth Parliament to enact laws in areas limitations, such as express and implied rights, which
covered by international treaties. The court held that can restrict the Commonwealth’s law-making power.
the Commonwealth Parliament is vested with the power For instance, the Commonwealth Parliament could not
to make laws in any area ‘capable of being reasonably introduce a law infringing upon the implied freedom of
considered to be appropriate in achieving the obligations political communication which the High Court has inferred
of the Commonwealth with respect to international affairs’. to be a freedom protected by the Constitution, even if an
As a result, the Commonwealth’s law-making power was international obligation encouraged the Commonwealth
further expanded, given the Commonwealth could legislate Parliament to introduce such a law.
in areas of residual power, as long as they were giving • Justices Mason, Murphy, and Brennan agreed that
genuine effect to international obligations. international agreements entered into must be genuine and
• The High Court’s interpretation created the potential for not created solely for the purpose of acquiring legislative
any state legislation to be overruled by Commonwealth power. Therefore, the Commonwealth cannot manipulate
legislation in matters concerning external affairs. At the an international obligation in order to override state
time, some commentators had concerns that the decision legislation by relying on the external affairs power.
gave the Commonwealth unlimited law-making ability
as there are international treaties about so many different
issues, including education, discrimination, civil rights, and
more. Therefore, since the Commonwealth Parliament could
enact laws to implement a treaty’s subject matter, as long
as the executive had ratified this treaty, it could make laws
about a wide range of subject matter that it would otherwise
have no power to make laws about by relying on the external
affairs power.
• Pieces of Commonwealth legislation now rely on the High
Court’s broad interpretation of the external affairs power
in the Tasmanian Dam case, which has been affirmed in
other cases since the decision, such as the Environmental
Protection and Biodiversity Conservation Act 1999 (Cth).

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R v Brislan; Ex parte Williams (1935) 54 CLR 262 4.1.5.3

Background information
7E THEORY
As technology is constantly changing and evolving, law reform is regularly required
LESSON LINKS
to ensure the law can remain up-to-date. Given the Australian Constitution was first
drafted at the end of the 19th century, some of the wording may not be applicable You will learn more about the law and
to technologies in the 21st century. However, the Australian Constitution cannot advances in technology in 9A Reasons
for law reform.
be changed without a successful referendum. Therefore, High Court interpretations
of the Constitution are, to this day, required to determine whether certain phrasing You will learn more about referendums
in 10B Referendums.
of the Constitution provides the Commonwealth Parliament with the power to
legislate in relation to new technology.
Section 51(v) of the Constitution states: CONSTITUTION
‘The Parliament shall, subject to this Constitution, have power to make laws Section 51 (v)
for the peace, order, and good government of the Commonwealth with respect
to postal, telegraphic, telephonic, and other like services.’
This means the Commonwealth has the power to legislate on matters concerning
LEGAL VOCABULARY
postal, telegraphic, telephonic, and other like services. However, the Constitution
does not explicitly state the meaning of ‘other like services’. Therefore, the High Ex parte a Latin term meaning
Court has needed to interpret these words in relation to a number of cases over the ‘on behalf of’.
years, such as in R v Brislan; Ex parte Williams (1935) 54 CLR 262 (Brislan case).
Facts
• In 1905, the Commonwealth Parliament passed the Wireless Telegraphy Act 1905
(Cth). Section 6(1) of the Act required that ‘except as authorised…no person shall
establish, erect, maintain, or use any station…for the purpose of transmitting
or receiving messages by wireless telegraphy’. The effect of this provision was
that radio devices were not allowed to be used without a licence, given they
were a relatively new invention.
• The Postmaster-General’s Department was a government department which
oversaw telegraphy services. Image: elRoce/Shutterstock.com
Figure 3 The 1930 radio set which required
• Roy Vincent Brislan, an inspector employed by the Postmaster-General’s a license to possess
Department, visited Dulcie Williams’ home in 1934 and found a wireless
broadcast receiving set (radio).
USEFUL TIP
• The following day, Williams admitted to officers she owned the wireless receiving
set which had been installed for a week, and she did not have a current wireless The case is called R v Brislan; ex parte
Williams. This means the case was the
listener’s licence. Consequently, she was fined one pound with eight shillings costs
Crown against Brislan (on behalf of
(roughly $150 AUD today), or given the option to serve three days of imprisonment. Williams). Williams was the defendant
• Williams challenged the validity of the Commonwealth legislation in the High Court in these proceedings. Therefore, when
on the basis that the legislation in relation to radio broadcasting was outside of the discussing this case, refer to Williams
scope of the Commonwealth’s law-making powers outlined in the Constitution. as the individual who challenged the
validity of the relevant legislation,
not Brislan.
Legal issues
• Williams argued that since radio broadcasting was not explicitly mentioned
in the Constitution as an area over which the Commonwealth had law-making
powers, the power to legislate on issues concerning wireless broadcast receiving
sets was a residual area of law-making, not an exclusive or concurrent one.
• Williams contended that radio broadcasting did not fit in any of the four
categories outlined in s 51(v) of the Constitution as areas of Commonwealth
law-making power: ‘postal, telegraphic, telephonic, and other like services’.
It was argued that since the post, telegraphs, and telephones were used as
one-to-one communication services where people communicated with each
other, as opposed to radio broadcasting which was a one-to-many service,
radio broadcasting was not a ‘like service’.
• The High Court was required to determine whether radio broadcasting was
classified as a ‘postal, telegraphic, telephonic, or other like service’, and therefore
rule on whether the Commonwealth had the authority to legislate in regard
to radio broadcasting.

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Decision
• The High Court determined that s 51(v) includes a power to regulate radio
broadcasting.
7E THEORY
• Whilst the High Court came to a majority 5:1 conclusion that law-making in
LEGAL VOCABULARY
relation to wireless set broadcasting was within the Commonwealth’s law-making
Ratio decidendi a judge’s reason for power, there was no single ratio decidendi shared by the majority.
a decision in a case, which establishes
a new legal precedent. • Chief Justice Latham and Justices Rich and Evatt determined that radio
broadcasting was a form of wireless telephony. They determined radio
broadcasting could also be classified as a ‘like service’ as it is used to
communicate information, just as post, telegraphs, and telephones do.
USEFUL TIP
• Conversely, Justice Starke stated the Commonwealth had ‘full authority to legislate
An important key skill in Area of
Study 1 of Unit 4 VCE Legal Studies with respect to wireless telegraphy, including radio broadcasting’, and hence,
is ‘discuss the significance of one classified radio broadcasting as a telegraphic as opposed to telephonic service.
High Court case which has had an • Contrastingly, Justice McTiernan determined broadcasting was in fact
impact on state and Commonwealth a ‘like service’ similar to telephones and telegraphs.
law-making powers’. Table 1 and Table
2 both show the significance of each • The only justice in dissent, Justice Dixon, argued that broadcasting fit none of the
case on law-making powers as well four categories and that it was therefore a residual power of the states.
as the limitations of each case’s • In considering the application of the term ‘other like services’, the court
impact on law-making powers. commented that the words were inserted into the Constitution ‘to provide for
Therefore, these tables can help you
future developments and inventions’ and ‘used to embrace all unknown future
answer higher-mark questions that
require a discussion of the significance discoveries which might deal with the conveyance of intelligence by electricity’.
of one High Court case.
DEEP DIVE
Dissenting decision
Interestingly, in 1967, Melbourne University professor Geoffrey Sawer contended the
dissenting view expressed by Justice Dixon in Brislan was an ‘overwhelmingly more
probable construction of what the Founders [of the Australian Constitution] intended’.
Thus, the interpretation of the High Court was ultimately not an interpretation the
founders intended (Sawer, 1987, p. 87). That is, Sawer suggests that, whilst the role
of the High Court is to broadly interpret the Constitution, the justices in Brislan
interpreted the Constitution too broadly. However, this is just one perspective on the
ultimate decision of the justices in Brislan.
Adapted from ‘Australian federalism in the courts’ (Sawer, 1967)
The impact of the Brislan case 4.5.1.3.1
Table 2 The impact of the Brislan case on law-making powers
• The case confirmed the power of the Commonwealth • Whilst the decision in Brislan demonstrated there could
Parliament to legislate on the subject matter of wireless sets be further expansion of the Commonwealth’s law-making
and broadened its legislative powers to make laws on ‘other power in the area of ‘postal, telegraphic, telephonic, and other
like services’. For instance, the establishment of the like services’, another case considering these words of the
Australian Broadcasting Corporation (ABC) in 1932 was Constitution would need to be brought before the High Court
created on the basis that s 51(v) allowed the Commonwealth to confirm its expansion to other types of services. The High
to control broadcasting. If the High Court did not affirm Court can only rule on and create precedent in relation to
the ability of the Commonwealth to control broadcasting cases before it, so further expansion of the Commonwealth’s
in Brislan, then the establishment of the ABC and other law-making power in this area may be limited during periods
government broadcasting services could be deemed beyond where cases concerning the extent of s 51(v) rarely arise.
the law-making powers of the Commonwealth. • Where the Commonwealth has legislated in relation to ‘other
• Brislan suggested that the Commonwealth could make laws like services’ in reliance on the Brislan decision, it is still
in relation to new communication technologies, as they possible for the validity of that legislation to be challenged
could be considered ‘other like services’. Therefore, this in the High Court, and there is potential that such legislation
means there is potential for the Commonwealth to assume may be declared invalid if the service under consideration
the power to legislate in regard to the Internet and other is not as similar to those services listed in s 51(v).
future technologies not invented yet. Continues →

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Table 2 Continued
7E THEORY
• The decision was thought by some to give the Commonwealth • Parliament cannot overrule High Court decisions. Therefore,
too much power to regulate in relation to any and all new if the High Court makes a decision limiting the law-making
communication technology. For example, the Commonwealth power of the Commonwealth in relation to broadcasting
has legislated in relation to the National Broadband Network services, the decision remains final. Thus, the Commonwealth
(NBN) on the assumption that the internet falls into the would no longer be able to legislate in this area until another
category of ‘other like services’. case comes before the court which alters the precedent and
once again, expands the Commonwealth’s law-making powers.
LEGAL CASE
Jones v The Commonwealth (No 2) (1965) 112 CLR 206

Facts
Louisa Jones sued the Commonwealth of Australia and the Australian Broadcasting
Commission, now known as the Australian Broadcasting Corporation (ABC). She sought
a declaration that the acquisition of her land for the creation of ABC offices for public
purposes was invalid. Jones claimed, among other reasons, that the establishment of the
ABC was invalid, as the Constitution did not explicitly make reference to television services
and hence, the power to legislate in this area was residual, not exclusive.
Legal issue
The High Court was required to determine whether the Commonwealth Parliament
had the ability to establish a national television service. Image: STRINGER Image/Shutterstock.com
Decision Figure 4 Jones sued the ABC, claiming the

Constitution does not establish television
The High Court determined that the creation of the ABC was within the law-making as an area the Commonwealth Parliament
powers of the Commonwealth. Referencing Brislan, Justice Owen held that television can make laws over
broadcasting was no different to the broadcast of words and sounds in radio and that
to construe the words of the Constitution any other way would be ‘unduly narrow’.
Significance
The power of the Commonwealth Parliament to legislate in regard to ‘postal, telegraphic,
telephonic and other like services’ received a broad interpretation, reinforcing the decision
in Brislan. Although the High Court is yet to hear a case concerning the law-making powers
of the Commonwealth Parliament over the internet, as of 2023, it is quite possible that the
High Court would consider it a ‘like service’ as a result of this case and the Brislan case.
REAL WORLD EXAMPLE
The National Broadband Network (NBN)

The NBN is a nationwide upgrade to Australia’s existing internet and phone infrastructure.
The main focus of the NBN is to create a replacement of the existing copper network with
more advanced fibre-optic cable and wireless technology to create a faster and more
reliable internet.
It is assumed by some that, because of the High Court’s tendency to provide a broad
interpretation of constitutional law-making powers as seen in Brislan, the High Court
will categorise the internet as a ‘like service’ to telegraphic and telephonic services
(Gamertsfelder, 1999). A similar example of legislation passed regarding the internet is
the Electronic Transactions Act 1999 (Cth), which also operated on the assumption that the
internet is a ‘like service’ under s 51(v), an assumption that has been widely accepted since. LEGISLATION
Adapted from ‘Everything you need to know about Australia’s broadband network’ (The NBN Project, 2015) and
‘Will the internet be the catalyst for an expansion of Commonwealth Constitutional Powers?’ (Gamertsfelder, 1999) Electronic Transactions Act 1999 (Cth)
Image: STRINGER Image/Shutterstock.com

Figure 5 The NBN initiative was announced in 2007 and is yet to be completed

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Lesson summary
There were significant effects of the Tasmanian Dam case on law-making powers:
7E QUESTIONS
• The ‘external affairs’ law-making power of the Commonwealth was interpreted

to allow the Commonwealth Parliament to legislate in any area covered by
international treaties as long as the parliament was given a genuine effect
to the treaty.
• The High Court’s interpretation created the potential that any state legislation
can be essentially overruled by Commonwealth legislation, providing the
Commonwealth legislation gives effect to international obligations and it is
related to the exercise of the external affairs power.
• The Commonwealth has relied on the High Court’s interpretation of the
external affairs power under s 51(xxix) of the Constitution for other purposes,
such as for the creation of the Environmental Protection and Biodiversity
Conservation Act 1999 (Cth).
There were significant effects of the Brislan case on law-making powers:

• The Commonwealth has relied on the High Court’s broad interpretation
of the ‘like services’ under s 51(v) of the Constitution to legislate on a number
of broadcasting matters, such as for the creation of the ABC.
• New technology advancements may fall under ‘like services’, such as
the internet.
• The decision was thought by some to give the Commonwealth too much
law-making power in relation to any and all new communications technology.
Consequently, this has led the Commonwealth to assume the power to legislate
in certain areas without cases going before the High Court to confirm the
Commonwealth’s law-making power.
7E Questions
Question 1
Parliament can overrule a High Court decision regarding changes to law-making powers.
A. True
B. False
Question 2
The Brislan case was significant because the Commonwealth Parliament is now relying on this decision
to assume law-making powers in which area of law?
A. The internet
B. Public housing
C. State police
D. Roads and infrastructure

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Question 3
Which of the following are ways the Brislan case limited the expansion of the Commonwealth’s law-making
powers? (Select all that apply)
7E QUESTIONS
A. Brislan suggested the Commonwealth Parliament has the ability to make laws in relation to new, related,
communication technologies if such technologies can be considered ‘other like services’.
B. The decision was thought by some to give the Commonwealth Parliament too much legislative power
in relation to any and all new communication technologies.
C. Where the Commonwealth Parliament has legislated in relation to ‘other like services’ in reliance on the
Brislan decision, it is still possible for the validity of that legislation to be challenged in the High Court.
D. Parliament cannot overrule High Court decisions on constitutional principles, such as the law-making
powers of the Constitution.
Question 4
In the Tasmanian Dam case, the Tasmanian government contended the World Heritage Properties Conservation
Act 1983 (Cth) was invalid because:
A. the Commonwealth was attempting to legislate in an area where they did not have a concurrent or exclusive
power to do so.
B. the UNESCO World Heritage listing of the Tasmanian wilderness was invalid.
C. the Commonwealth’s legislation was in breach of s 109.
Question 5
internal external
The Tasmanian Dam case created the opportunity for any state legislation to be overruled by Commonwealth legislation
as long as it is for the purposes of upholding genuine, international treaty obligations under the
affairs power.
Question 6
Which of the following is an example of the Commonwealth relying on the High Court’s broad interpretation
of the Constitution following Brislan’s case?
A. The Environmental Protection and Biodiversity Conservation Act 1999 (Cth).
B. The Communist Party Dissolution Act 1950 (Cth).
C. The National Parks and Wildlife Conservation Act 1975 (Cth).
D. The creation of the ABC.
Question 7
The High Court has no impact on the law-making powers of the state and Commonwealth parliaments as the
distribution of law-making powers is decided by the Constitution.
A. True
B. False

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Preparing for exams

Standard exam-style
7E QUESTIONS
Referring to one High Court case, outline one effect the case had on state and Commonwealth law-making powers.
Explain the significance of one High Court case that has impacted the division of law-making powers.
Extended response
Question 10
Tick the box to indicate whether each of the following statements are true or false about the Tasmanian Dam case.

I. The court determined that the ‘external affairs’ power should be interpreted as allowing the
Commonwealth Parliament to make laws in relation to any subject matter covered by an
international treaty Australia has ratified, essentially broadening the states’ law-making powers.
II. As s 109 of the Constitution has the effect of rendering state legislation invalid if it is inconsistent
with Commonwealth legislation, the decision in the Tasmanian Dam case had the effect of
broadening the law-making power of the Commonwealth, at the expense of the states’ powers.
III. The decision in the case means that areas of law-making that are residual powers of the states,
such as the development of state infrastructure, can never become areas where law-making
is shared by the Commonwealth and the states concurrently.
IV. The High Court was required to determine whether s 51 (xxix) of the Constitution, which
enabled the Commonwealth Parliament to make laws in relation to ‘external affairs’, extended
to law-making to give effect to international treaties, even if by giving effect to such treaties,
the Commonwealth is essentially legislating in an area where the states have residual
law-making power.
V. The court held that, in regard to the external affairs power, the Commonwealth can enact
legislation that is giving a genuine effect to Australia’s obligations under international treaties.
VI. The interpretation of the external affairs power in the case created the potential for any
Commonwealth legislation to essentially be overruled by state legislation, providing the
Commonwealth legislation gives effect to international obligations under the external
affairs power.
Using one High Court case, analyse the impact of the High Court’s interpretation of the Australian
Constitution on state and Commonwealth law-making powers.

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Question 12
7E QUESTIONS
Tick the box to indicate whether the following statements demonstrate the significance or a limitation
of the impact of the Brislan case decision on the Commonwealth’s law-making powers.
Statement Significance Limitation

I. For further expansion of the Commonwealth’s law-making power under s 51(v) to include
more types of ‘like services’, there would need to be another case considering the words of this
section of the Constitution to be brought before the High Court.
II. Brislan’s interpretation of the term ‘other like services’ in s 51(v) suggests the ability of the
Commonwealth to legislate in relation to new, related, communication technologies, such
as the internet and other future technologies not invented yet. The Commonwealth can likely
rely on the Brislan decision, and subsequent decisions that have also considered s 51(v),
to legislate in relation to the internet, even though a case has not been brought before the
High Court to confirm this.
III. The establishment of the Australian Broadcasting Corporation (ABC) in 1932 was created
on the basis that Brislan’s interpretation of s 51(v) allowed the Commonwealth to legislate
on and control the subject matter of broadcasting.
IV. The decision in Brislan does not confirm that all other communications technologies will
definitely be interpreted to fall in the s 51(v) category of Commonwealth law-making power.
V. Where the Commonwealth Parliament has legislated in relation to ‘other like services’
in reliance on the Brislan decision, it is still possible for the validity of that legislation to be
challenged in the High Court. Therefore, there is potential that such legislation may be declared
invalid if the service under consideration is not as similar to those services listed in s 51(v).
VI. The Brislan decision suggests that the phrase ‘other like services’ should be given a broad
interpretation, which means that areas of law-making that were considered as residual
law-making powers of the states could be areas for which the Commonwealth has concurrent
law-making powers. Brislan therefore reduced the state’s law-making power.

Discuss the impact of one High Court case on the state and Commonwealth law-making powers.

Explain the relevance of section 109 of the Australian Constitution when a High Court interpretation
of the Constitution has the effect of broadening the Commonwealth’s law-making powers.

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7F Parliament’s ability to make law

– the bicameral structure
• factors that affect the ability of parliament to make law, including:

Image: Phovoir/Shutterstock.com
As you leave high school, you may choose 7A 7B 7C 7D 7E 7F 7G 7H 7I 7J 7K

to move into a sharehouse. You would
likely come to an agreement with your
housemates on the rules of the house.
4.1.6.1
If this agreement is not reached, and one
housemate is able to dictate the ‘laws’ The bicameral structure of parliament
of the house without unanimity from
4.1.6.1.1 The law-making process
the others, this is likely to result in house
rules that are not satisfactory. Luckily, 4.1.6.1.2 T
he composition of the
in parliament, all proposed laws have to be upper house
checked by all present members, in both the
upper and lower house. However, despite
this additional check on the laws created,
they may still be unsatisfactory for some.
Lesson introduction
Without proper review, legislation could be made arbitrarily and parliament could
abuse its power. Therefore, the bicameral structure ensures that each house is
responsible to the other. With this structure, utilised in both the Commonwealth
and Victorian Parliaments, the law-making power of each house is reviewed by
its counterpart and there is more scope for bill amendments, ultimately aiming to
improve the overall quality of new laws.
The bicameral structure of parliament 4.1.6.1

The modern-day, bicameral parliament is still reminiscent of the Westminster system,
KEY TERM
a parliamentary system developed over centuries, originating in the 1200s at the Palace
Bicameral parliament a law-making of Westminster in Britain. Today, many countries that underwent British colonisation
body with two houses or chambers have Westminster-style parliaments, including Australia, Canada, and New Zealand.
that must approve of new bills Bicameral parliaments share common features, such as having two houses, a Head of
or amendments to laws. State, elected representatives, and a vested legislative power.
LEGAL VOCABULARY
Colonisation the action of forcefully
settling in another country already
inhabited by Indigenous populations.
Legislative power the power vested in
parliament that enables it to make laws.
Image: Jason Benz Bennee/Shutterstock.com

Figure 1 The Commonwealth Parliament, located in Canberra

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The requirement for a bicameral structure is laid out in the respective constitutions
of the Victorian and Commonwealth Parliaments. In Victoria, the requirement for
a bicameral structure is included in the Victorian Constitution, established by s 15
7F THEORY
of the Constitution Act 1975 (Vic). In the Australian Constitution, the requirement LEGISLATION
of a bicameral legislature is included in s 1. This means a majority of proposed
Commonwealth and Victorian bills are approved by two Houses of Parliament Constitution Act 1975 (Vic)
before becoming legislation. The only exception to this rule in Victoria is for the
state budget bill, whereby only the Legislative Assembly approves the yearly budget,
CONSTITUTION
not the Legislative Council.
Section 1
LEGAL VOCABULARY
Bill a proposed law introduced in
a parliament by a member of one
of its houses.
Image: FiledIMAGE/Shutterstock.com LESSON LINKS

Figure 2 The Victorian Parliament, located in Melbourne CBD You learnt about the Commonwealth
Parliament in 7A The Commonwealth
In the Commonwealth Parliament, the upper house is the Senate and the lower
Parliament and the Crown in
house is the House of Representatives. In the Victorian Parliament, the upper law-making.
house is the Legislative Council and the lower house is the Legislative Assembly.
You learnt about the Victorian
Parliament in 7B The Victorian
Parliament and the Crown in
WANT TO KNOW MORE?
law-making.
There are three parliaments in Australia that are unicameral, meaning they have only one
house for law-making. These are the Queensland, the Northern Territory (NT), and the
Australian Capital Territory (ACT) Parliaments. Queensland is the only state in Australia
with a unicameral parliament, as the ACT and NT are territories, making its structure
unique to all other states. Queensland chose to abolish its upper house in 1922.
You can find out more about Queensland’s unicameral law-making process by searching
‘System of government – Queensland’ and clicking the ‘Queensland Government’
(2020) webpage.
The law-making process 4.1.6.1.1

The parliamentary law-making process is a direct result of the bicameral structure
and requires proposed bills to pass certain steps in each House of Parliament
to ensure all potential legislation goes through sufficient checks and balances before
being implemented.
When establishing legislation, a member of parliament (MP) will introduce a bill.
LEGAL VOCABULARY
To be legislated, this bill must pass through the House of Parliament it was first
introduced in, with the approval of the majority of its members who are present. Member of parliament (MP)
It is then reviewed, scrutinised, and approved by the other House of Parliament, an elected, political representative
of people who live in a certain area,
before receiving royal assent from the Governor, if it is state legislation, or the
such as a district or state.
Governor-General, if it is Commonwealth legislation. A bill may transition between
Governor the representative of
both houses several times when amendments are being made or suggested until it is the monarch in each of the six
finally approved. Although the majority of bills are introduced in the lower house, they Australian states.
may also be introduced in the upper house. Whilst not identical, the legislative process Governor-General the representative
in the Victorian Parliament is largely similar to that of the Commonwealth Parliament. of the monarch in the Commonwealth
Parliament is also limited in the speed at which this law-making process can Parliament.
occur by the number of sitting weeks of parliament each year. On average, the
Commonwealth Parliament will sit for 18–20 weeks of the year whilst the Victorian
Parliament will sit for around 16–18 weeks. Whilst this is designed to allow MPs to
conduct activities outside of parliament, such as connecting with their community
and preparing for future sitting days, bills can only be progressed when parliament
is sitting. Therefore, a lack of sitting weeks for a long period can significantly slow
the parliamentary law-making process.

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WANT TO KNOW MORE? Step 1 Step 2 Optional step Step 3

You can access the specific details of Introduction and Second reading Consideration Third reading
first reading The bill is debated in detail Any final
both the Victorian and Commonwealth
7F THEORY
If approval is given, and scrutinised, Members examine amendments are

Parliament’s sitting weeks through their the minister the bill by voting on
after which the proposed and
respective websites. Parliament sitting formally house votes on each clause and considered. The bill
days are mostly public and can be introduces the bill, whether it should suggesting is then officially
viewed either in person or online. meaning they read progress. amendments. voted on by the
its title and house. If successful,
You can find out more about these
distribute copies the bill is passed to
dates by accessing the Parliament to other members. the second house
of Australia or Parliament of Victoria for consideration.
websites and navigating to the ‘Sitting
Calendar’ pages.
Step 6 Step 5 Step 4
The bill is approved by the The bill goes through the The bill is approved by the
second house same procedure in the first house
second house
Step 7 Step 8
The bill receives royal assent Commencement
Once a bill has been passed by both houses A bill will rarely become an enforceable law
and reaches its final form, it will then be on the same day of receiving formal
presented to a King’s representative for approval via royal assent. A new law will
royal assent on behalf of the Crown. take effect on the date stated within the Act
This is the final approval of the bill. itself; if no date is included, it takes effect 28
days after receiving royal assent.
Figure 3 The legislative process in Australia’s bicameral parliaments
REAL WORLD EXAMPLE

relating to drug use.
Safer streets
On Lennox Street in North Richmond, a safe injecting room has existed since 2018 as a
harm reduction measure for drug users in the area. From 2018 to 2023, it successfully
managed more than 6,300 overdoses in the surrounding community and saved
approximately 63 lives. In 2023, the Labor Government proposed legislation that would
LEGISLATION make the current North Richmond location permanent through the Drugs, Poisons and
Controlled Substances Amendment (Medically Supervised Injecting Centre) Act 2023 (Vic).
Drugs, Poisons and Controlled Substances After passing the Legislative Assembly, the Act was moved to the Legislative Council
Amendment (Medically Supervised where a number of parties, such as the Greens and the Liberal Democrats, made
Injecting Centre) Act 2023 (Vic) submissions for amendments. After lengthy debates that ended in a ‘late-night vote’,
the bill passed the upper house and became an Act. This is just one example of the
law-making process that parliament undertakes, and the avenues
of opportunity for review and change at each stage in a bill’s life.
Adapted from ‘Richmond safe injecting room made permanent after late-night vote’ (Eddie, 2023)
Image: David MG/Shutterstock.com

Figure 4 North Richmond’s safe injecting room was made permanent by the Victorian Parliament

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The composition of the upper house 4.1.6.1.2 LESSON LINK

The upper house, whether that be the Senate at the federal level or the Legislative You will learn more about the
Council at the Victorian state level, plays a significant role in parliamentary composition of parliament in
7F THEORY
law-making. As the government of the day is formed in the lower house, the political 7H Parliament’s ability to make law
party or coalition that wins government will usually hold a majority of seats in this – representative nature.
house. Consequently, the majority of new legislation, generally introduced by cabinet,
originates from the lower house. The level of debate on proposed legislation in the Government-held
lower house is usually reduced if there is a majority government, as members of the seats
government will often vote in the same way in order to pass bills. This is referred
to as voting ‘along party lines’. Whilst they risk losing the support of their political
party, MPs will often vote along party lines even if the vote does not necessarily best
represent the views of their constituents.
Non government-held seats
There are two compositions of the upper house that can affect law-making in Figure 5 The composition of a hostile
parliament, being: upper house
1. a hostile upper house

2. an upper house acting as a ‘rubber stamp’. LEGAL VOCABULARY
A hostile upper house occurs when the government of the day does not hold a majority Government of the day the political
in the upper house and, therefore, the balance of power is held by a combination party or coalition with a majority in the
lower house of parliament.
of the opposition, minor parties, and independents. In these situations, the members of
the government of the day in the upper house cannot rely on their votes alone to pass
comprised of members of similar ethos
proposed legislation, instead being forced to gather support from the opposition or the
and worldviews with the primary aim
crossbench, by making amendments and compromises. of competing in elections to achieve
This increases the level of scrutiny on bills and ensures adequate levels of debate societal and political goals.
and consideration are undertaken before a law passes through the house. However, Coalition an alliance between two or
in instances where deciding votes may fall to a few minor parties or independents, more political parties with the aim of
working together to form a government.
the law-making process of the upper house, and parliament as a whole, can be
slowed and skewed as the specific interests of these parties need to be catered Cabinet a central decision-making
body consisting of the prime minister,
to in order for the bill to gain approval.
in the federal context, and the premier,
in the state context, alongside senior
DEEP DIVE members of government, including
ministers, who are responsible for
The current hostility developing government policy and
At both a state and federal level, the Victorian and Commonwealth Labor Governments addressing issues of concern.
face a hostile upper house in their respective parliaments. These exact numbers may Constituent a person who votes for,
change over the course of the MP’s sitting terms due to resignations, however it is unlikely and is then represented in government
to see either upper house become a ‘rubber stamp’. by, an elected official.
Hostile upper house a situation in
Table 1 The composition of the hostile, 47th Table 2 The composition of the hostile 60th
Senate of Australia, sitting from 2022–2028 Victorian Legislative Council, sitting from which the government of the day does
2022–2026 not hold a majority in the upper house.
Australian Labor Party 26 Rubber stamp a group of elected
Victorian Labor Party 15 representatives that approves the
Coalition 31
Coalition 13 government’s decisions with little
Australian Greens 11 oversight
Victorian Greens 4 Balance of power the support of minor
Pauline Hanson’s One Nation 2
Legalise Cannabis Victoria 2 parties or independents in a house of
Jacqui Lambie Network 2 parliament that enable the government
Shooters, Fishers, Farmers 1 to form a majority and enact their
United Australia Party 1 law-making.
Animal Justice Party 1
Independents 3 Crossbench the members who do not
Pauline Hanson’s One Nation 1 belong to the major political parties in
a chamber of parliament, specifically
Democratic Labour Party 1
Independents and members of minor
Liberal Democrats 1 parties.
Independent Liberal 1

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Government-held When the upper house acts as a rubber stamp, a majority of seats are held by the same
seats party in the upper and lower house, meaning bills may not be scrutinised properly.
If the majority in both Houses of Parliament share the same political views, bills
7F THEORY
introduced in the lower house are unlikely to be contested by the upper house, leading
to potential misuse of law-making power and limiting the upper house’s ability to
Non government-held seats execute its primary role as the ‘house of review’. However, some view this composition
Figure 6 The composition of a ‘rubber stamp’
of the upper house as efficient, as law-making tends to occur quicker in the absence of
upper house conflicting interests that may intrude on the legislative plans of the elected government.
REAL WORLD EXAMPLE
Not a stamp in sight

The 47th Senate of Australia was formed following the 2022 federal election and will
continue sitting until 2028. Despite the majority Labor Government formed in the House
of Representatives, Labor does not hold a majority in the upper house. The composition of
the upper house, as seen in Table 1, includes a diverse number of independents and minor
parties.
Jacqui Lambie, a Tasmanian senator who leads her own minor party, the Lambie Network,
has experience holding the balance of power, having sat on the crossbench in the Senate
since 2013.
Towards the end of 2022, with only two sitting weeks remaining in the year for the
Commonwealth Parliament, Senator Lambie, who was considered a ‘key Senate player’
in passing certain Labor Government workforce legislation, made her stance clear in that
she did not ‘want to be rushed’ on her decision in case the government was ‘trying to hide
Figure 7 Jacqui Lambie, a minor party leader,
has held the balance of power in the past or rush stuff through’.
Despite the bill being drafted and supported by the government of the day, the ability of
members of the crossbench to deliberately push for amendments significantly slows the
law-making process. In this case, the government’s workplace relations minister claimed that
certain workers had been ‘kept waiting for 10 years’ for the changes that would be produced
by the proposed law. However, the speed in which the bill was passed relied on a handful of
Senators, including Lambie. Ultimately, the bill was passed and the industrial relations reform
occurred as another independent senator voted in favour of the bill.
Adapted from ‘Jacqui Lambie and David Pocock oppose Labor ‘rushing through’ workplace bill’ (Karp & Cox, 2022)
Speedy stamping
Suppose the Coalition (Liberal and National Parties) formed the Victorian Government in
the Legislative Assembly, where they would hold a majority and their leader would be the
Victorian premier. Imagine this particular government has also been successful in winning
23 of the 40 Legislative Council seats, which is quite rare.
This government has stated that it places a high priority on reducing traffic and, therefore,
begins to introduce controversial legislation relating to roads and other infrastructure in the
Legislative Assembly. These bills pass with ease as the government votes together and hold
a majority. Once the bills reach the upper house, minor parties raise concerns. The Animal
Justice Party suggests that higher speed limits will increase levels of roadkill, as an example.
However, as the Coalition also holds a majority in this house, it is under no obligation to adopt
these concerns or amendments and rather, chooses to pass these bills through the house.
In the media, political reporters remark on the speed at which the government has passed
Figure 8 An upper house’s provision of a
bills and changed the road laws of Victoria. However, they also comment on the fact that
‘rubber stamp’ may be quick, but not always many conflicting community interests have not been considered in the new legislation,
considerate potentially impacting social cohesion and support of the government of the day.
This hypothetical situation of a political party occupying a majority of seats in both
Houses of Parliament demonstrates that, although such a situation may result in laws
being passed more efficiently, it also may result in laws not being adequately considered
before being passed, causing negative side effects when such laws are not adequately
debated before enactment.

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Lesson summary
• Both the Victorian and Commonwealth Parliaments have a bicameral structure
7F QUESTIONS
that ensures all proposed legislation moves through two houses of elected
representatives before becoming law, with the exception of Victoria’s state
budget legislation.
• Bills must be read and approved by both houses before becoming law, however,
this can be delayed by a limited number of sitting days.
• The composition of the upper house is particularly relevant as its political makeup
can determine the speed at which bills pass as well as the quality and level of
review and amendment undertaken.
USEFUL TIP
An important key skill in Area of Study 1 of Unit 4 VCE Legal Studies is to ‘discuss the
ability of parliament and the courts to make law’. This table evaluating the effect of the
bicameral structure on the ability of parliament to make law, along with summary tables
in Lessons 7G and 7H, can assist you in discussing parliament’s ability to make law.
‘Strengths’ of the effect of the bicameral structure refer to factors that can strongly
influence parliament’s ability to make law and/or the effectiveness of that law-making,
whereas ‘limitations’ are factors that limit the influence of the bicameral structure
on law-making by parliament, or its effectiveness in law-making.
Table 3 Evaluating the effect of the bicameral structure on the ability of parliament to make law
• If the parliament consisted of only one house, the government • A hostile upper house can delay the speed at which bills are
could pass legislation that aligns solely with its political passed by the parliament.
agenda rather than the views and values of constituents. The • If particularly stubborn MPs hold the balance of power in
inclusion of a second house can prevent this from happening. the upper house, they may force the government to alter bills
• The inclusion of a second house of parliament ensures all for specific interests that may not represent the views of the
bills are reviewed and debated, to ensure the government broader population.
of the day does not alter the law dramatically without • In a situation where the government holds a majority in
appropriate scrutiny. both houses, the upper house may ‘rubber stamp’ bills and
• When the government holds a majority in both houses, therefore, the bill may undergo little to no consideration.
it may be able to pass bills with few barriers from conflicting • The law-making process undertaken by parliament, which
parties, therefore increasing the speed at which new laws can involves passing the bill through both houses, is generally
be passed. This can help overcome the challenge posed by the lengthy and must be carried out for every bill.
limited sitting weeks of parliament.
• MPs are only required to be in parliament for less than half
• An upper house, in which the government does not have a of the year. Therefore, as the law-making process can only
majority, will conduct a higher level of review on proposed occur when the parliament is ‘sitting’, there can be weeks
legislation, assisting in improving the quality of parliamentary where no law-making is carried out by parliament.
law-making.
7F Questions
Question 1
In most Australian jurisdictions, including in the Victorian and Commonwealth Parliament, proposed
legislation only needs to pass through one House of Parliament before becoming a law.
A. True
B. False

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Question 2
Which of the following may occur in the upper house when the government of the day holds a majority?
7F QUESTIONS
A. Legislation will tend to pass with ease.

B. The upper house will act as a ‘rubber cross’.
C. Some interests of minority groups in the population may be missed in law-making.
D. The level of debate on bills is likely to be lower than usual.
Question 3
majority minority helpful hostile
When the government of the day has a in the upper house, this is known as a
upper house.
Question 4
Parliament’s law-making capacity can be physically limited by the:
A. cost of fuel.
B. number of sitting weeks.
C. location of parliament house.
D. distance of MPs from each other.
Question 5
Which of the following parliamentary chamber compositions may limit the effectiveness of parliament’s
law-making? (Select all that apply)
A. Hostile Senate
B. Hostile Legislative Council
C. ‘Rubber stamp’ Senate
D. ‘Rubber stamp’ Legislative Council
Question 6
The effectiveness of law-making by parliament depends on both houses working in cooperation.
A. True
B. False
Preparing for exams

Standard exam-style
Outline the makeup and function of a bicameral parliament.
Describe two ways the bicameral structure of parliament improves the ability of parliament to make law.
Extended response
Question 9
Tick the box to indicate whether the following statements are strengths or limitations of the effect of the
bicameral structure on the ability of parliament to make law.

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I. In a situation where the government holds a majority in both houses, the upper house may
7F QUESTIONS
‘rubber stamp’ bills. Therefore, the bill may undergo little to no consideration.
II. When the government holds a majority in both houses, it may be able to pass bills with few
barriers from opposing parties, therefore increasing the speed at which new laws can be passed.
III. The inclusion of a second house can prevent the government from passing legislation that aligns
solely with its political agenda.
IV. If particularly stubborn MPs hold the balance of power in the upper house, they may force
the government to alter bills for specific interests that may not represent the views of the
broader population.
V. An upper house in which the government does not have a majority will usually conduct
a higher level of review on proposed legislation, potentially improving the quality of
parliamentary law-making.
Discuss the effect of the bicameral structure of parliament on parliament’s ability to change the law.

Following the 2031 federal election, the composition of the Senate was as follows:
Government-held seats Non-government-held seats

30 46
Question 11
Which of the following statements are correct about ways the bicameral structure improves the law-making
ability of parliament? (Select all that apply)
A. Bills that are passed through a hostile Senate may have undergone a higher level of review and scrutiny.
B. When the government does not hold a majority in the upper house, it must consider a broader range of
perspectives, leading to more inclusive law-making.
C. In a situation where there is a ‘rubber stamp’ upper house, it is difficult for the government to implement
its legislative plans.
D. Minor parties and independents in the upper house often act to speed up the law-making process
of the parliament.
To what extent does the composition of this Commonwealth Parliament affect its law-making ability?
Justify your answer with reference to the table.

Imagine the Minister for Agriculture, Hay Plough MP, introduced a bill to the Legislative Assembly after
a growing number of suburban homes began cultivating large quantities of crops in their backyards.
This resulted in increased pests, such as rodents and foxes, in suburban areas, which many people have found
to be dangerous. A few months after, the Suburban Agriculture Bill 2056 (Vic) was introduced and passed
through the Legislative Assembly. The bill is not yet an Act and now faces a hostile Legislative Council.
a. Outline one role of the Governor in passing the Suburban Agriculture Bill 2056 (Vic). 2 MARKS
b. Describe one limitation of the parliament’s law-making ability in this scenario. 3 MARKS

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7G Parliament’s ability to make law

• factors that affect the ability of Parliament to make law, including:
– the bicameral structure of Parliament

– the representative nature of Parliament
Image: Alisusha/Shutterstock.com 7A 7B 7C 7D 7E 7F 7G 7H 7I 7J 7K
‘To deny people their human rights
is to challenge their very humanity.’
—Nelson Mandela (Former President
of South Africa, 1990) 4.1.7.1
Many human rights protections in Australia International pressures
can be attributed to the influence of 4.1.7.1.1 International treaties
international pressures. International bodies,
4.1.7.1.2 International declarations
such as the United Nations (UN), encourage
states to adopt laws that aim to achieve 4.1.7.1.3 The United Nations (UN)
global peace by upholding human rights. 4.1.7.1.4 O
ther international
organisations
Lesson introduction
Australia has made a broad range of international commitments to comply with
certain standards across the globe because it is signatory to a number of international
treaties and declarations. These relate to areas such as human rights, economic trade,
environmental protection, and upholding peace. Parliaments may face pressure from
other countries and international organisations to create or amend its laws to comply
with international obligations set out in these treaties and declarations. Alternatively,
if parliament attempts to pass laws that breach international obligations,
international forces may fight against the legislation from being passed.
International pressures 4.1.7.1

Parliament may face international pressures from other countries and international
KEY TERM
organisations if it fails to comply with international human rights standards or
International pressures the influence international obligations. These pressures may result in parliament creating or
that other countries and international amending laws to uphold international standards. Alternatively, international pressures
organisations exert on parliaments to may encourage parliament to not pass legislation that breaches international law.
ensure the laws created comply with Therefore, Australia’s desire to comply with international forces directly impacts its
international standards.
ability to amend current and create future laws. Failure to uphold international law
LEGAL VOCABULARY
may result in scrutiny from other countries and international organisations. However,
international laws do not apply like domestic laws as they are created and enforced
International law a set of rules and
in different ways.
principles that regulate the conduct
of countries and international
organisations.

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REAL WORLD EXAMPLE
Covid Crisis
7G THEORY
The COVID-19 pandemic was the largest global health crisis in the last century,
causing over six million deaths as of September 2023. Originating in China in 2019, the
coronavirus spread internationally, forcing governments across the globe to take action.
As other countries began entering into periods of lockdown to reduce the spread of the
virus and limit the number of Covid-related deaths, Australia was expected to follow.
On 23 January 2019, China became the first country to impose a lockdown in parts of
Hubei. On 12 March 2020, Australia entered its first lockdown period, after international
pressures compelled the nation to take similar precautionary actions. By the end of March
2020, over 100 countries had entered into full or partial lockdowns.
Furthermore, the Commonwealth Parliament passed laws in response to the COVID-19
pandemic. For example, the Coronavirus Economic Response Package Omnibus Act
2020 (Cth) was passed, which authorised a series of economic support payments to
Australians. This was passed in an attempt to reduce the devastating economic impacts
Image: Sebastian Reategui/Shutterstock.com
the pandemic had on individuals who were unable to work due to the pandemic.
Figure 1 The global COVID-19 pandemic
Adapted from ‘The true death toll of COVID-19: estimating global excess mortality’ (World Health Organisation, forced Australia to enter into lockdowns and
2023) and ‘Lawmaking during the Covid-19 Pandemic’ (Australian Law Reform Commission, 2022) create legislation in response to the crisis
International treaties 4.1.7.1.1

An international treaty, also referred to as a ‘covenant’ or ‘convention’, is an
KEY TERM
agreement between two or more countries or international organisations in which
international rights and obligations are created. International treaties may be bilateral, International treaty an agreement
meaning they involve an agreement between two parties, or multilateral, meaning they between two or more countries or
involve more than two parties. A country can become a party to a treaty by signing international organisations, that creates
it, which is the first step of the treaty-making process and indicates the signatory international rights and obligations.
intends to be bound by the treaty’s terms. The next step is ratification, which is a more
LEGAL VOCABULARY
formal undertaking to be bound by the terms of the treaty. Once a treaty is signed and
Ratification the formal agreement or
ratified, this does not automatically mean the agreement forms part of domestic law.
undertaking by a country to be bound
Parliaments must pass legislation to give effect to the promises it has made by signing
by the terms of an international treaty,
the treaty. The Commonwealth Parliament is able to give effect to treaties through which provides the country time to
domestic legislation under the external affairs power in s 51(xxix) of the Constitution. ensure domestic legislation is consistent
with the treaty.
Table 1 Examples of international treaties Australia has signed and ratified, and legislation
enacted to incorporate some or all of the international obligations into domestic law
International treaty Legislation enacted under Australian law CONSTITUTION
International Convention on the The following Acts give effect to some Section 51(xxix)
Elimination of all Forms of Racial provisions in ICERD:
Discrimination (ICERD), ratified • Racial Discrimination Act 1975 (Cth)
in 1975. LEGISLATION
• Age Discrimination Act 2004 (Cth)
• Disability Discrimination Act 1992 (Cth) Racial Discrimination Act 1975 (Cth)
• Sex Discrimination Act 1984 (Cth) Age Discrimination Act 2004 (Cth)
International Covenant on Civil and Disability Discrimination Act 1992 (Cth)

The following Act gives legislative effect to
Political Rights (ICCPR), ratified obligations Australia has under the ICCPR: Sex Discrimination Act 1984 (Cth)
in 1980. • Australian Human Rights Commission Australian Human Rights Commission
Act 1986 (Cth) Act 1986 (Cth)
Crimes Legislation Amendment (Torture
Convention against Torture and The following Acts give effect to some Prohibition and Death Penalty Abolition)
Other Cruel, Inhuman or Degrading provisions in CAT: Act 2010 (Cth)
Treatment or Punishment (Torture • Crimes Legislation Amendment Criminal Code Act 1995 (Cth)
Convention or CAT), ratified in 1989. (Torture Prohibition and Death Penalty
Abolition) Act 2010 (Cth)
• Criminal Code Act 1995 (Cth)

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Australia is a signatory to, and has ratified, many international treaties. Once a treaty
LEGAL VOCABULARY
is ratified, it becomes binding under international law, meaning Australia is obliged
Member State a country that is a to fulfil its commitments as outlined by international law. However, there are
member of the United Nations, who
7G THEORY
limited mechanisms by which UN Member States and international organisations

has accepted, and is obliged to carry
out the obligations of the United can enforce compliance with international law. Despite this, where a Member State,
Nations Charter. such as Australia, breaches international law, it will likely face criticism from other
Member States for failing to uphold obligations set out in international treaties,
such as those relating to human rights. As a result, this puts pressure on parliament
to create or amend laws based on recommendations made by other countries and
international bodies.
From treaty to law: The process

Assume the Australian government signs a treaty with New Zealand in which both nations
commit to lowering the voting age to 16 for federal elections. Merely signing this treaty
means it has no impact on the voting age in Australia. The commitment made in the treaty
only takes effect under international law once ratified. In order for the change to come into
Figure 2 For international treaties to come effect in Australia, the Commonwealth Parliament must pass legislation lowering the voting
into effect in Australia, the Commonwealth age to 16 for federal elections.
Parliament must pass legislation that gives
effect to provisions of the covenant
REAL WORLD EXAMPLE
to injustice and suicide.
Australia’s asylum seeker crisis
Australia has faced criticism from various countries and the United Nations (UN) for
its treatment of asylum seekers. In particular, Australia’s continued use of offshore
processing and prolonged detention for asylum seekers has been condemned. Since
2012, those seeking asylum in Australia without valid visas have been subject to offshore
processing in either the Republic of Nauru (Nauru) or on Manus Island, located in Papua
New Guinea (PNG). These asylum seekers are kept in offshore processing facilities
indefinitely, as there is no limit on the length of time they are to be detained.
Image: STRINGER Image/Shutterstock.com
It has been found that Australia has breached various international treaties, such as the
Figure 3 Australia has faced criticism for
its treatment of asylum seekers, which has Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
breached international law due to the harsh conditions on the island. 12 asylum seekers have died on the island,
‘mainly as a result of inadequate healthcare and suicide’. In response to pressures faced
by Australia to uphold international treaties, the 2021 government of Scott Morrison
decided to end Australia’s offshore processing agreement with PNG in 2021. However,
as of February 2023, there were still 61 asylum seekers held in Nauru. Consequently,
Australia continues to face international criticism, with 47 countries condemning the
Australian Government’s detention policies in 2023.
Adapted from ‘UN member states challenge Australia’s refugee and asylum policies’ (Refugee Council Australia,
2023) and ‘Offshore processing statistics’ (Refugee Council Australia, 2023)
International declarations 4.1.7.1.2

A nation may sign an international declaration to recognise a universal set of
KEY TERM
principles that it is not bound to follow. Unlike international treaties, declarations are
International declaration not subject to ratification by countries. However, the principles set out in international
a non-binding agreement between declarations may overlap with international treaties to which Australia is legally bound.
two or more countries that establishes For example, Australia has signed the Universal Declaration of Human Rights (UDHR),
the aspirational rights and obligations which sets out many human rights and freedoms. Whilst Australia is not bound to
that parties to the agreement seek
uphold the human rights established in this declaration, there is significant overlap
to enforce.
between this declaration and the treaties Australia has ratified, such as the ICCPR.
Despite not being legally bound, parliament may face international criticism for failing
to uphold the principles set out in an international declaration that it has signed.
As a result, this often encourages parliament to make laws that reflect these basic
standards of human rights to align Australian law with international standards.

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REAL WORLD EXAMPLE
CONTENT WARNING Aboriginal and/or Torres Strait Islander readers should be aware
7G THEORY
that some material in this section may be culturally sensitive. Examples of this include
references to people who have passed, inappropriate terms, or distressing events.
The Australian government’s treatment of First Nations peoples falls below
international standards
In September 2007, the United Nations General Assembly, the main body of the United
Nations (UN) that makes policies, adopted the United Nations Declaration on the Rights
of Indigenous Peoples (UNDRIP). This declaration was adopted by a vote of 143 countries
in favour, four against (one of which was Australia), and 11 abstentions. The declaration
outlines the individual and collective rights of Indigenous peoples, including to live in
dignity and to maintain and strengthen their own institutions, cultures, and traditions.
Australia has faced, and continues to face, heavy criticism from various countries for its
treatment of Aboriginal and Torres Strait Islander peoples. In September 2022, the United
Image: patrice6000/Shutterstock.com
Nations Human Rights Committee found that Australia violated First Nations peoples’
ability to enjoy their culture by failing to adequately protect them against the impacts Figure 4 Australia faced international
pressure to adopt the United Nations
of climate change. As a result, Australia reversed its ‘against’ decision and took steps to Declaration on the Rights of Indigenous Peoples
formally adopt the UNDRIP into Australian law, as demonstrated by the United Nations (UNDRIP)
Declaration on the Rights of Indigenous Peoples Bill 2022 (Cth).
Adapted from ‘United Nations Declaration on the Rights of Indigenous Peoples Bill 2022’ (Parliament of Australia,
2022) and ‘United Nations Declaration On The Rights Of Indigenous Peoples’ (United Nations, 2007)
The United Nations (UN) 4.1.7.1.3

Australia is a founding Member State of the United Nations (UN), an international
KEY TERM
organisation formed in 1945 that is composed of 193 Member State as of 2023. The
UN aims to promote international peace, strengthen human rights, and achieve United Nations (UN)
international cooperation for problems affecting the global community. The UN an intergovernmental organisation
was founded by the Charter of the United Nations, which grants it the power to take that aims to promote better living
action on a broad range of issues. The UN Charter is considered an international standards and human rights, maintain
international peace and security,
treaty and is, therefore, an instrument of international law. Australia is bound by the
and develop friendly relations
UN Charter since it was ratified in 1945, which gives rise to commitments that may
among nations.
impact the ability of parliament to make law.
The Universal Periodic Review (UPR) is a process that takes place every four years, LEGAL VOCABULARY
and is used by the UN to ensure each Member State, such as Australia, is upholding its Abstention when a participant
commitments under international law. During each UPR cycle, Australia is required in a vote does not vote in favour
to present a report and appear at the UN in Geneva to answer questions from other of, or against a proposal or motion,
deciding not to participate in the
Member States. This provides an opportunity for Member States to recommend the
vote at all.
need for law reform in different areas of human rights. Whilst these recommendations
are not legally binding, they are often highly influential as they are made by other
countries, are public in nature, and are regularly reported on in the media.
REAL WORLD EXAMPLE
Should children as young as 10 be locked up?

As of 2023, the age of criminal responsibility, which refers to the age a child can face criminal
charges, is 10 years old and older for Commonwealth offences in Australia. Each state and
territory is responsible for establishing its own age of criminal responsibility, with this age
being unanimously set at 10 years old Australia-wide prior to 2023.
Australia faced international pressure at the UPR in 2021, with 31 countries recommending
that Australia raise the age of criminal responsibility to 14 years old. Various countries
condemned Australia for being well below international standards.
After receiving this criticism, the Victorian Government announced in April 2023 that it
Image: Tinnakorn jorruang/Shutterstock.com
would raise the age of criminal responsibility from 10 to 12, doing so by the end of 2024.
The government also announced the long-term aim of raising the age to 14 by 2027. As of Figure 5 Australia faced international
pressure at the UPR to raise the age
1 August 2023, the Northern Territory reformed the existing law and changed the age of of criminal responsibility
criminal responsibility to 12 years.
Adapted from ‘More than 30 countries condemn Australia at UN over high rates of child incarceration’ (Hurst, 2021)

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REAL WORLD EXAMPLE
Climate crisis
7G THEORY
On 20 September 2023, a Climate Action Summit was held by the UN at its headquarters
in New York. The summit was attended by world leaders, business giants, and experts in an
attempt to ‘accelerate action by governments, business, finance, local authorities and civil
society’. According to the Intergovernmental Panel on Climate Change’s latest assessment,
the climate crisis has already caused extensive damage. Therefore, immediate action is
needed. Whilst there have been many climate change meetings, this only permits ‘leaders
who have responded to the Secretary-General’s call for accelerated action to tackle the
climate crisis’.
Prior to the summit taking place, government leaders were informed they would be expected
to deliver report cards on their stance on honouring their past commitments to treaties
related to climate change, such as the Paris Climate Agreement. Australia is a party to this
treaty, which aims to tackle climate change. In March 2023, the Australia Institute published
a statement calling on the government to halt ‘over 100 new coal and gas projects in the
pipeline’. Additionally, an open letter, signed by over 200 experts and scientists, called
on Australia to ‘accelerate climate action, not climate annihilation’. Therefore, Australia
has been called on by the UN, as well as climate experts and scientists, other countries,
Image: Christie Cooper/Shutterstock.com
organisations, and groups to do more to help cut emissions.
Figure 6 Australia faces international Adapted from “No nonsense’ Climate Ambition Summit: What you need to know’ (UN News, 2023) and
pressures to take climate action ‘Climate scientists and Pacific activists call on Australia to ramp up ambitions ahead of UN summit’ (Hodge, 2023)
Other international organisations 4.1.7.1.4

International organisations, which can comprise many Member States, can place
pressure on parliaments to make or change the law. These organisations may be able
to enforce international treaties that their Members have entered. Alternatively,
some organisations may not have the power to impose legal obligations to directly
LESSON LINK
influence parliaments to change the law. However, these organisations can still be
You will learn more about the need
highly influential in sparking public interest in particular human rights issues that
for law reform in 9A Reasons for
law reform. countries, such as Australia, are failing to uphold. Consequently, this may pressure
parliament to establish or amend laws to reflect societal values.
Table 2 International organisations and their impact on parliament’s ability to make law in Australia
International organisation Explanation

The Group of Twenty (G20) An intergovernmental forum comprising 19 countries, including Australia and the European
Union, that meets annually to strengthen international economic cooperation. Initially
focused on discussing macroeconomic issues, the G20 is now a forum to discuss other global
issues, such as climate change and anti-corruption.
Australia has entered into treaties with other countries as a result of the issues discussed at
the G20 Summit. For example, within the forum, Australia actively promotes a rules-based
multilateral trading system.
World Trade Organisation (WTO) An international body comprising 164 nations that determines international trade rules.
The WTO is involved in the negotiation, monitoring, and enforcement of international
trade agreements that are reached through negotiations among its Member countries.
For example, Australia is bound to follow the Information Technology Agreement, which
removes tariffs on IT products. If a Member country believes Australia is violating this
agreement, it can file a complaint with the WTO’s Dispute Settlement Body, which will
investigate the matter and, if necessary, authorise sanctions against the offending country.
Amnesty International A non-governmental organisation that advocates for human rights across the globe.
Amnesty International is a global movement, active in more than 150 countries.
Amnesty International pressures parliaments around the world, including the
Commonwealth Parliament, to change laws that violate human rights. This can be
achieved by exposing countries that are breaching international law and lobbying
governments to respect international law.
Continues →

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Table 2 Continued
International organisation Explanation
7G THEORY
Greenpeace An independent campaigning organisation operating in 55 countries across the globe
to expose environmental problems through peaceful protests and creative confrontation.
Greenpeace puts pressure on parliaments around the world, including in Australia,
by influencing international treaties on environmental protection. Greenpeace attends
international forums in order to encourage countries to protect the environment.
REAL WORLD EXAMPLE
CONTENT WARNING Aboriginal and Torres Strait Islander readers should be aware
distressing events and injustice.
Amnesty International’s fight for Indigenous Justice
Amnesty International’s ‘Indigenous Justice’ campaign aimed to raise awareness about
the overrepresentation of First Nations children in detention centres. During its campaign,
Amnesty International condemned Australia’s treatment of Aboriginal and Torres Strait
Islanders. In particular, the organisation claimed the reason Aboriginal and Torres Strait
Islander children have ‘more contact with police, courts and prisons’ is due to racism,
over-policing, unfair policies, and discriminatory laws in Australia.
The Indigenous Justice campaign has two main goals that aim to reduce the
overrepresentation of First Nations children in detention centres. Firstly, Amnesty
International has sought to encourage Australia’s Federal Parliament to raise the age
of criminal responsibility from 10 to 14. In August 2022, the organisation placed pressure
on the Australian Parliament to raise the age by obtaining approximately 210,000 signatures
from everyday Australians in support of raising the age. Secondly, the campaign aims to
increase government funding of First Nations-led community diversion programs that enable
offenders to deal with criminal matters, when they are relatively minor, outside of the court
system, doing so to allow the offender to avoid a criminal record. The Australian Government
listened and announced that it would be allocating $81.5 million towards initiatives that
address the root cause of the incarceration of Indigenous peoples. Image: paintings/Shutterstock.com
Figure 7 Amnesty International undertook
Adapted from ‘Wins: Australia steps up to fight climate change, refugees no longer in TPVS limbo, Yasman and campaigns for Indigenous Justice
Monireh are free, and more’ (Amnesty International, 2023) and ‘Indigenous Justice’ (Amnesty International, n.d.)
Lesson summary
• International pressures affect the ability of parliament to make law, as all
current and future laws should comply with the international law to which
Australia is committed to.
• Where parliament is not bound by international law, failure to comply with
international obligations may result in parliament facing criticism from other
countries, the UN, and other organisations.
USEFUL TIP
ability of parliament and the courts to make law’. The table on the next page evaluating
the effect of international pressures on the ability of parliament to make law, along with
summary tables in Lessons 7F and 7H, can assist you in discussing parliament’s ability
to make law.
‘Strengths’ of the effect of international pressures refer to factors that can strongly
influence parliament’s ability to make law and/or the effectiveness of that law-making,
whereas ‘limitations’ are factors that limit the influence of international pressures on
law-making by parliament, or its effectiveness in law-making.

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Table 3 Evaluating the effect of international pressures on the ability of parliament to make law
7G QUESTIONS
• If Australia is found to be in breach of the obligations within • There are limited mechanisms by which UN Member States
international treaties to which it is a signatory and has ratified, and international organisations can enforce compliance with
Australia will likely face criticism from other countries, and international law.
potentially other consequences, for failing to comply with • Unless Australia is a member of an international organisation
the obligations, such as failing to uphold fundamental human or has ratified an international treaty, the Commonwealth
rights set out in international treaties. This may influence Parliament is under no legal obligation to comply with
parliament to change the law to avoid further criticism. international expectations and standards.
• International organisations may be influential in sparking • Pressures from international organisations may limit the
public interest in relation to particular issues, such as those ability of parliaments to make laws that are tailored to the
relating to human rights and climate change, that countries, unique needs and circumstances of a population.
such as Australia, fail to uphold. This may place pressure on
• International declarations are not legally binding, meaning
parliament to create or amend laws to reflect societal values
parliament will not face legal consequences for failing to
and international standards as, by doing so, members of
uphold the principles set out in a declaration.
parliament (MPs) can increase their chance of re-election
by better reflecting the views of their constituents. • Recommendations for law reform made by UN Member
States at the UPR are not legally binding, meaning
• Whilst international declarations are not legally binding,
Parliament does not have to adopt these recommendations.
parliament may face criticism for failing to uphold the
principles set out in declarations, such as the Universal • International society may have conflicting views and
Declaration of Human Rights. opinions on certain issues. For example, transnational
mining corporations may encourage Australia to trade coal
• International treaties can be implemented by enacting
and iron as doing so boosts their profits. The pressure from
legislation into domestic law, for example, by enshrining
these corporations may, therefore, conflict with pressures
human rights protections in statute law.
from other organisations, such as Greenpeace, that may
• International organisations, such as the UN and the WTO, compel Australia to reduce coal emissions to combat climate
have the power to impose sanctions on countries for change. Therefore, parliament has to decide which pressures
breaching international treaties. Only the organisation has to accept and which to ignore.
the power to remove these sanctions, placing pressure on
a country, and more specifically their parliament, to comply
with international law by not passing legislation that
contravenes treaties.
• The UPR provides an opportunity for Member States to
recommend the need for law reform in different human
rights areas, which may be highly influential as they are
made by other countries and are public in nature.
7G Questions
Question 1
International pressures may result in parliament creating or amending laws to uphold international standards.
A. True
B. False
Question 2
Once signed, an international treaty:
A. is binding under international law.
B. does not automatically become binding under international law until the treaty is ratified.

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Question 3
7G QUESTIONS
treaties declarations
International are not legally binding and are a statement of principles that a nation may sign.
Alternatively, international are agreements that become legally binding under international
law upon ratification.
Question 4
Which of the following statements are correct about international organisations pressuring parliament
to change or make laws? (Select all that apply)
A. International organisations may be able to enforce international agreements their Member States have
entered into, placing pressure on parliament to uphold their international commitments.
B. International organisations may create laws on behalf of parliament which must be followed and cannot
be changed.
C. International organisations may be influential in sparking debate and public interest in particular issues,
placing pressure on parliament to create or amend laws that reflect society’s values as MPs will try to
create laws their constituents would support in order to be re-elected.
Question 5
The United Nations (UN) can pressure the Australian Parliament to make laws by:
A. creating international declarations that all Member States, including Australia, are legally bound to follow.
B. holding Universal Periodic Reviews (UPRs) that provide an opportunity for Member States to scrutinise
Australia’s human rights laws and recommend changes to the law.
Question 6
Whilst the provisions of international treaties and declarations are not directly incorporated into Australia’s
domestic laws, they can be a large influence on the legislation enacted by parliament.
A. True
B. False
Preparing for exams

Standard exam-style
Describe one impact that international pressures may have on the ability of parliament to make law.
More than 156 countries have signed the International Convention on the Elimination of All Forms of Racial
Discrimination 1966 (ICERD), including Australia. Parliament then ratified the international treaty and passed
the Racial Discrimination Act 1975 (Cth), which incorporated some provisions of the ICERD into domestic law.
Explain how international pressures may protect the Australian people in relation to discrimination.
In your view, to what extent do international pressures affect the ability of parliament to make law?
Justify your answer.

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Extended response
7G QUESTIONS
Question 10
Tick the box to indicate whether the following statements are strengths or limitations of the effect
of international pressures on the ability of parliament to make or change law.

I. Pressures from international organisations may limit the ability of parliaments to make laws
that are tailored to the unique needs and circumstances of a population.
II. If Australia is found to be in breach of the obligations within international treaties to which
it is a signatory and has ratified, Australia will likely face criticism from other countries, and
potentially other consequences, for failing to uphold the obligations.
III. International organisations may be influential in sparking public interest in particular issues,
such as those relating to human rights and climate change, that countries fail to uphold.
IV. Australia is a signatory to a broad range of international declarations which, if not upheld, may
cause Australia to face criticism, such as for failing to uphold the basic human rights set out in
a declaration.
V. International declarations are not legally binding, meaning the Australian Parliament will not face
legal consequences for failing to enact legislation to uphold the principles set out in a declaration.
VI. International organisations, such as the UN and the WTO, have the power to impose sanctions
on countries for breaching international treaties. Only the organisation has the power to
remove these sanctions, placing pressure on a country, and more specifically its parliament,
to comply with international law by not passing legislation that contravenes treaties.
‘International pressures are effective at influencing parliament to change laws.’

Imagine that, hypothetically, the House of Representatives wants to initiate legislation to return refugees
who enter Australia to their country. However, Australia is a party to the Convention Relating to the Status of
Refugees (1967), which aims to prevent refugees from being expelled or returned to places where they would
face persecution.
Explain one reason why parliament may not change the law in this case.
Explain the relationship between the role of the Commonwealth Parliament and international pressures.

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7H Parliament’s ability to make law

– representative nature
• factors that affect the ability of parliament to make law, including:

7A 7B 7C 7D 7E 7F 7G 7H 7I 7J 7K Image: julian meehan/Shutterstock.com
Across Victoria, many primary and secondary

schools have a Student Representative
Council (SRC) program that allows students
4.1.8.1 to become representatives of their class
The representative nature of parliament or year. If you have participated in voting
4.1.8.1.1 Reflecting the community for one of these representatives, you may
remember election promises such as ‘pizza
4.1.8.1.2 Regular elections every Friday’, whilst also pledging to listen
to and represent their voters. As many of you
now are reaching voting age, you may have
realised there are many similarities between
SRC elections and Australian politics. MPs
seek to represent the interests of their
voters, with a constant reminder that failing
to do so, may cause them to be voted out.
Lesson introduction
Through its various elected members, parliament has a duty to voters and the
broader community to represent their interests through its law-making. As voters
have regular opportunities to change their representatives at elections, members
of parliament (MPs) have the incentive to continue serving their constituents. KEY TERM
However, representative law-making is not always possible if electoral candidates
Democratic society an organised
and the parliament are not an accurate reflection of the community and their views system of people living in a community,
and values. in which the laws and processes that
govern people’s lives are created by
elected representatives.
The representative nature LEGAL VOCABULARY
of parliament 4.1.8.1 Member of parliament (MP)
an elected, political representative
Parliament is the supreme law-making body, and therefore, has a duty to utilise
its power to represent the interests of the Australian people. The principle and such as a district or state.
process that underpins this duty to represent is Australia’s election system, being
a democratic society. The Australian Constitution establishes Australia as a
representative democracy, as sections 7 and 24 of the Australian Constitution CONSTITUTION
outline that both Houses of Parliament must be directly elected by the people.
Similarly, the Victorian Constitution, the Constitution Act 1975 (Vic), states that Section 7
the members of the Legislative Assembly and Legislative Council must be elected Section 24
by the people from their respective districts.
The members of parliament (MPs), at a state or Commonwealth level, are the most
LEGISLATION
popular candidates in their local community. Therefore, parliament aims to represent
the people, as each MP is elected by the people, for the people. Constitution Act 1975 (Vic)

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The effectiveness of parliament in creating laws is not solely determined by how

LESSON LINK
quickly legislation is enacted. It also relates to the quality of the bills, particularly
You will learn more about sections in terms of how well they address the current and future needs of society.
7H THEORY
7 and 24 of the Constitution in 7I The

Constitution as a check on parliament
– representative government. Reflecting the community 4.1.8.1.1
Whilst each MP is elected in a manner that is considered democratic, the representative
nature of each parliament, whether that be the Commonwealth or state/territory
LEGAL VOCABULARY parliaments, can also depend on who is nominated for each electorate or electoral
Electorate a geographical area with district respectively.
approximately 100,000–120,000 The Victorian Parliament published a research note in 2022 outlining that the average
voters residing within the area.
MP was ‘male, university educated, born in Australia and turning 45-64 during the
Electoral district a geographical area election year’ (Parliament of Victoria, 2022). Additionally, the same study found that
with a given population of individuals
‘those aged 18–44 and 65 and above are underrepresented in parliament’. Similarly,
residing within the area that vote
to elect one member to represent women and migrant Australians are consistently disproportionately reflected in the
them in Parliament. compositions of both Victorian and Commonwealth Parliaments. This demonstrates
that the extent to which diverse populations and minority groups are represented
in law-making is limited. Even for an MP with the best intentions of representing
a community, if they lack the lived experience of certain demographics, they will
likely not be able to fully represent their community in law-making. There is also
no requirement for MPs to actually reside in the community they are elected
to represent, which can also affect their ability to meaningfully represent their
constituency as they may lack specific local knowledge on key issues.
WANT TO KNOW MORE?

You can find out more about the composition of the Commonwealth Parliament
by searching ‘The Parliament: Traits and trends’ and clicking the ‘Australian Parliament
House’ (Parliament of Australia, 2013) webpage.
Women in Australian parliaments 2001 to 2022 (%)

State/Territory
Federal
45
40
35
30
25
20
15
10
5
0 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022
Figure 1 The closing gender divide in the parliaments of Australia
REAL WORLD EXAMPLE
First Nations’ representation in the Commonwealth Parliament

The 47th Commonwealth Parliament, elected in 2022, consists of 11 members across the
House of Representatives and the Senate, who identify as First Nations. This is the highest
level of representation in the Commonwealth Parliament’s history and has been regarded
as a step in the right direction for a truly representative parliament, considering the years
of systematic under-representation of First Nations peoples in law-making. With these
11 members, they now compose 4.8% of the Commonwealth Parliament, whilst Aboriginal
and Torres Strait Islander peoples make up around 4% of the national population. This
Figure 2 In the 47th Commonwealth demonstrates how Australian society may be moving towards parliament being a more
Parliament, elected in 2022, Aboriginal and accurate representation of the Australian people.
Torres Strait Islander’ representation is above
the national population percentage Adapted from ‘Indigenous Voice to Parliament’ (Australian National University, n.d.)

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REAL WORLD EXAMPLE
Shifting tides of gender equality
7H THEORY
The 60th Victorian Parliament, elected in 2022, is the most gender-diverse in its history.
For the first time, in the Victorian Parliament upper house, the Legislative Council, women
outnumbered men 22 to 18. This has been considered a milestone for the representative
nature of parliament and demonstrates remarkable progress over the century since 1923,
when women were first permitted to be elected as MPs.
Newly elected members, such as Member for Mildura, Jade Benham, speak of positive
experiences as women in parliament and how they are ready to show up and lead
on behalf of their communities.
Whilst the gap in the Legislative Assembly is slowly closing, in the 60th Parliament,
Image used with permission from Jade Benham
women made up 44% of MPs, despite 50.8% of Victorians identifying as women
in the 2021 Census. Figure 3 MP for Mildura, Jade Benham,
is one of the many newly-elected female
Adapted from ‘Leading in more ways than one’ (van Zaanen, 2023) MPs to the 60th Victorian Parliament
The demographic composition of parliament can affect its law-making ability

as it means that a particular set of interests by a group of individuals may be, with
or without intent, overrepresented and catered for in legislation. This inequality
could cause groups in the community to be disregarded by parliament and therefore,
parliament’s ability to enact legislation in a representative manner is reduced.
Moreover, the ability of parliament to remain representative is also dependent
on its ability to respond to the needs of law reform. Members of the community
can influence law reform through various means, such as protests or petitions.
Therefore, parliament should be willing to respond to such community activity
if it wishes to reflect and represent the diverse voices of the community. In these
circumstances, parliament may be able to overcome diversity issues in-house by
remaining proactive and resposnsive to the community, allowing it to retain some
level of representativeness.
Regular elections 4.1.8.1.2

In order to achieve representative government, regular elections are held, enabling LEGISLATION
the Australian people to elect members to represent them in parliament. Regular
elections ensure the government is mindful to act in the best interests of the people, Commonwealth Electoral Act 1918 (Cth)
as failure to do so may increase the risk of being voted out of office at the next
election. The Commonwealth Electoral Act 1918 (Cth) mandates that voting is
compulsory for all Australian citizens 18 years or older enrolled on the electoral roll. LEGAL VOCABULARY
Electoral roll the list of names of all
At the state level in Victoria, the Victorian Constitution outlines that elections
Australians who are enrolled to vote.
are held on the last Saturday of November every four years. In contrast, at the
In order to enrol to vote, an individual
Commonwealth level, elections are required to occur every three years for the House must be an Australian citizen and over
of Representatives but can be called earlier. Senators, on the other hand, are elected 18 years old.
for a term of six years. If the Commonwealth’s government of the day wanted
to extend its term of office, this would require a referendum as this term of office
is explicitly stated in and protected by section 28 of the Australian Constitution. CONSTITUTION
Compulsory voting, despite ensuring a certain level of participation in Australian Section 28
democracy, can also be perceived as forcing those who do not wish to be politically
engaged to cast a vote, which may be uninformed and not representative of their
law-making desires and values. On the other hand, as everyone on the electoral roll LEGAL VOCABULARY
is required to vote in state and federal elections, political parties are compelled
Government of the day the political
to improve their policies to appeal to the entire population.
party or coalition with a majority in the
lower house.

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This relatively short period in office places constant pressure on the government
LEGAL VOCABULARY
of the day to swiftly enact legislation and make its intended improvements to society.
Constituent a person who votes for, This duty to serve constituents out of fear of losing office is one of the critical benefits
and is then represented in government
7H THEORY
of the representative nature of parliament. By design, MPs are required to not only
by, an elected official.
represent those who elect them, but also actively contribute to the improvement
of their communities through law-making. The level of commitment to election
promises can also determine a government’s chance of re-election. If MPs cannot
deliver on their promises, they may not be voted back in as they have betrayed the
trust of constituents.
REAL WORLD EXAMPLE
Teal Wave: How independent Dr Monique Ryan shook up a conservative

stronghold
In the May 2022 federal election, Dr Monique Ryan successfully challenged high-profile
Liberal Party MP, Josh Frydenberg. Frydenberg had held the lower-house seat of Kooyong
in Melbourne’s inner-east for the 12 years prior to this election and also served as Australia’s
treasurer for the last 4 of those years.
Running on a platform of climate action, a stronger economy, and better integrity in politics,
Ryan gathered the support of over 2000 community volunteers, who successfully
‘door-knocked’ every house in the electorate. In the final distribution of results, Ryan
gathered 53% of the votes, compared to Frydenberg’s 47%.
Ryan is the first female and independent MP for Kooyong, traditionally a Liberal seat that
covers Melbourne suburbs, such as Kew, Hawthorn, and Camberwell. Her election win,
alongside two other ‘teal’ independents in Victoria, four in NSW, and one in WA, signified
a shift in the voter mindset of more affluent and traditionally Liberal electorates.
Independents in the Commonwealth Parliament do not hold a political affiliation to any party
Image: Benjamin Crone/Shutterstock.com and therefore, are thought to act in the best interests of their electorate, as opposed to basing
Figure 4 Dr Monique Ryan replaced their votes for bills on party ideologies and values. The level of influence that independents
the former Treasurer of Australia, Josh have on the law-making process in the Commonwealth Parliament can be strong. They
Frydenberg in the 2022 federal election
can be the determining vote on bills passing through a house and therefore, can push for
amendments and policies from the major parties.
Adapted from ‘Former treasurer Josh Frydenberg concedes defeat in inner-Melbourne seat of Kooyong’
(ABC News, 2022)
For some time, elections at a federal and state level are usually a contest between
LEGAL VOCABULARY
the Labor Party and the Liberal-National Coalition. These political parties are
Coalition an alliance between two or part of the foundation of the representative nature of parliament as their ideologies,
more political parties with the aim of
opposing in many aspects, offer voters a choice of what change and general values
working together to form a government.
they wish their community to be led by. They are an important element of the
representative nature of parliament as they simplify the ideals of society into
comprised of members of similar
ethos and worldviews with the primary collective groups and make it easier for voters to align and make an informed
aim of competing in elections to choice on their representative.
achieve societal and political goals.
DEEP DIVE
Progressive and proud

Recent studies have found that Gen Z, on average, is 25.3% less likely to vote for the
Coalition than the average voter. This shift places the relevancy of this right-wing party
into question as the report, conducted by the Centre for Independent Studies, found that
the current generation was also less likely to politically shift to the right as they age.
The Liberal-National Coalition has for some time been the ‘centre-right’ choice in Australia’s
political landscape. This study proposes that as young people continue to become of voting
age, the Labor and Greens vote will likely continue to increase whilst the Coalition’s vote will
Image: ymgerman/Shutterstock.com decline, as both the Labor and Greens represent more left-wing, progressive values.
Figure 5 A 2023 study found that those Adapted from ‘Young Australians far less likely than parents to shift to right as they age, report finds’ (Convery, 2023)
born after 1996 are one of Australia’s most
progressive cohorts in its parliamentary history

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However, there are times where a disconnect between the views of an MP’s community
LEGAL VOCABULARY
and their political party may arise. This can affect the level of representation that
parliament can offer in law-making. In both the lower and upper houses of the Cross the floor an act whereby a
member of parliament defects from
7H THEORY
Victorian and Commonwealth Parliaments, when voting on bills, MPs will usually
their political party for a vote in
vote with their political party. This is known as ‘voting along party lines’, and MPs parliament. This physically occurs
in a party may experience a level of pressure to keep this consistency in party voting in parliamentary chambers as the
patterns. If an MP does wish to vote against the views of their party, they may member will move to the opposing side
cross the floor or, if permitted, perform a conscience vote. Crossing the floor is an of the room.
indication that an MP does not agree with their party’s stance on a particular matter Conscience vote a parliamentary vote
and/or wishes to represent their own constituents’ values. in which MPs are officially permitted
to disregard all party allegiances and
vote based on their own beliefs.
REAL WORLD EXAMPLE
Crossing the floor for climate change

In August 2022, Tasmanian Liberal MP Bridget Archer performed a conscious vote on
Labor’s proposed Climate Change Bill in regard to creating an emissions reduction target
of 43% by 2030.
Whilst she raised some issues with proposed amendments, she moved to support the
Bill itself, despite the rest of the Coalition choosing to vote against the entire Bill. This is
attributed to the fact that residents in Archer’s Tasmanian electorate of Bass informed
her of their desire for action on climate change. Archer told parliament that ‘it’s important
to me that when I’m back in my own community, I’m able to sincerely say that I used the
opportunity afforded to me with the power of my vote to stand up for what they want
and need’.
Crossing the floor for such a reason demonstrates the juggle between the potentially
conflicting interests of an MP’s political party and their own community. Although, whilst Source: AUSPIC Collection. Photographer: David Foote.
Copyright © 2023 Commonwealth of Australia
MPs like Archer act proactively to preserve the representative nature of parliament’s
Figure 6 In 2022, Tasmanian Liberal MP
law-making, others may not be so courageous. Bridget Archer crossed the floor to support
Adapted from ‘Liberal Bridget Archer crosses floor to vote for Labor’s climate bill’ (Hislop, 2022) Labor’s climate bill
Lesson summary LESSON LINK
• Parliament is representative in nature and must make laws that reflect and You learnt about the two
Houses of Parliament in 7A The
represent the views of society.
Commonwealth Parliament and
• Elected representatives are supported by the majority of a particular community, the Crown in law-making.
however, they may not reflect diverse populations and minority groups.
• Regular elections compel elected representatives and governments to act in the
interests of the public for fear of being voted out in the next election.
• MPs may have to choose between representing their constituents or the interests
of their political party.
USEFUL TIP
ability of parliament and the courts to make law’. This table evaluating the effect of the
representative nature of parliament on the ability of parliament to make law, along with
summary tables in Lessons 7F and 7G, can assist you in discussing parliament’s ability
to make law.
Table 1 Evaluating the effect of the representative nature of parliament on the ability of parliament to make law
• The representative nature of parliament influences MPs • Australia’s compulsory voting system may result in people
to enact laws that represent the views and values of the people. casting uninformed votes, thus, the elected party may not
be truly representative of the people’s views.
Continues →

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Table 1 Continued
7H QUESTIONS
• Regular elections place pressure on MPs to represent the • Members of parliament may not vote for law reform in
views of their constituents as failure to do so could put them areas where vocal minority groups are against the law,
at risk of being voted out at the next election. out of fear of not being re-elected, even if the law reform
• Over recent times, an increasing number of women have is needed to improve society as a whole.
been elected into parliament at both the Commonwealth and
• Historically, in relation to minority cultural groups
Victorian levels, closing the gender divide and improving the
and women, Australian parliaments have exhibited
ability of parliament to reflect the composition of society in
long-standing disparities in representation, affecting
its law-making.
the parliaments’ ability to fully account for these
• As of 2023, the Commonwealth Parliament comprises a level
demographics in law-making. As of 2023, parliaments
of First Nations representation proportionate to the First
in Australia do not adequately represent minority
Nations population in Australia.
groups in a way that is proportionate to the population
• An MP is able to cross the floor when voting on legislation if
of these groups.
they wish to deviate from the views of their political party.
This is often done by an MP in order to vote in line with the • As of 2023, First Nations peoples are not adequately
views of their constituency, so it can ensure law-making is represented in the majority of state parliaments, with few
representative of the community’s views. parliaments comprising a level of First Nations members
• Compulsory voting ensures a large proportion of individuals proportionate to the population.
in Australia participate in elections and that parliaments • MPs may feel compelled to vote with their political party,
are comprised of MPs elected by the majority of people. rather than in line with the desires of their electorate
Therefore, if MPs truly represent their constituents’ views, or electoral district, reducing the representation of the
law-making can be reflective of the majority’s views and
constituents’ views in parliament’s law-making.
values.
• A political term of three or four years may not be long
• The representative nature of parliament, whilst at times may
enough for productive legislative activity and reform
limit the speed at which legislation is introduced, ensures a
large number of community values are considered in the to occur. This may mean parties can make shallow
law-making process. This improves the quality of law-making election promises to remain elected, whilst never actually
and can, therefore, improve society. implementing promised law reform.
• In an effort to retain voters, parliament may pass legislation
to appeal to the majority of society and gain voter support
as opposed to legislating for the entire community.
• The diversity and therefore, representative nature of
parliament can rely upon the characteristics of those
people who nominate and run for parliament. Even
though communities choose their MP, they can only vote
for those who are nominated, so may not even have the
option to vote for someone who fully represents them.
7H Questions
Question 1
The representative nature of parliament ensures the views of all voters are always considered in parliament’s
law-making.
A. True
B. False
Question 2
voted out compulsory diversity regular elections re-elected
The representative nature of parliament is assisted through , meaning politicians must act
to represent their constituents or else risk being .

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Question 3
Which of the following statements refers to factors that can impact the diversity of parliament?
7H QUESTIONS
A. Voters’ preferences.
B. Those who nominate to be an MP.
C. The ability of MPs to cross the floor.
D. The time between elections.
Question 4
Tick the box to indicate whether the following scenarios demonstrate strengths or limitations of the
representative nature of a given parliament.
Scenario Strengths Limitations

I. An MP is not willing to cross the floor in the House of Representatives despite feedback
to do so from their community.
II. The proportion of men and women in the Legislative Assembly is identical to that of the
Victorian population.
III. There are no Aboriginal or Torres Strait Islander MPs in the Senate.
IV. An MP from the Legislative Council introduces legislation that only benefits those who would
re-elect them.
Question 5
Which of the following statements is a limitation of the representative nature of parliament?
A. The diversity, and therefore, representative nature of parliament relies upon those who nominate and
run for parliament. Even though communities choose their MP, they may not have the option to vote
for someone who fully represents them.
B. Compulsory voting ensures a large proportion of individuals in Australia participate in elections
and parliament is comprised of MPs elected by the majority of Australians.
C. Regular elections place pressure on parliament to represent the views of the majority of society
in law-making or risk being voted out at the next election.
D. The representative nature of parliament, whilst at times may limit the speed at which legislation
is introduced, ensures a large number of community values are considered in the law-making process.
Question 6
The level of representation in parliament’s law-making does not depend on diversity, but rather the ability
of the MP to listen to their community.
A. True
B. False
Preparing for exams

Standard exam-style
Outline one way in which parliament may represent the community in law-making.
Describe one way the representative nature of parliament may affect its ability to make law.

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In July 2022, the composition of the Commonwealth Parliament was as follows:
7H QUESTIONS
Proportion of women representatives
Senate 57%
House of Representatives 38%
Ancestry in the Commonwealth Parliament v Australian population

Non-European 6.6% 23%
Asian 4.4% 18%
Source: ‘The 47th parliament is the most diverse ever – but still doesn’t reflect Australia’, The Guardian (Remeikis, 2022)
In your view, to what extent does the composition of the Commonwealth Parliament affect its ability
to be representative in law-making? Justify your answer with reference to the table above.
Extended response
Question 10
Which of the following statements are strengths of the representative nature of parliament in improving
law-making? (Select all that apply)
A. Regular elections place pressure on MPs to represent their constituents or risk being voted out at the next
election.
B. A political term of three or four years may not be long enough for productive legislative activity and
reform to occur. This may mean parties can make shallow election promises to remain elected, whilst
never actually implementing promised law reform.
C. An MP is able to cross the floor when voting on legislation if they wish to deviate from the views of their
political party. This is often done by an MP in order to vote in line with the views of their constituency, so
it can ensure law-making is representative of the community’s views.
D. MPs may feel compelled to vote with their political party, rather than in line with the desires of their
electorate, reducing the representation of their views in parliament’s law-making.
E. Compulsory voting ensures a large proportion of individuals in Australia participate in elections and that
parliaments are comprised of MPs elected by the majority of people. Therefore, if MPs truly represent
their constituents’ views, law-making can be reflective of the majority’s views and values.
Discuss how the representative nature of parliament affects its ability to make law.

In 2050, Victoria’s government of the day proposes to implement free public transport as a part of an initiative
to reduce the use of motor vehicles. This government holds a majority in the Legislative Council, whilst the
2050 Victorian Parliament is composed of 79% men.
Explain why the 2050 Victorian Parliament may not be effective in its ability to make law.

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7I The Constitution as a check on

parliament – representative government
• the means by which the Australian Constitution acts as a check on parliament

in law-making, including:
– the role of the High Court in protecting the principle of representative
government
– the separation of the legislative, executive and judicial powers
– the express protection of rights
Image: Stock Up/Shutterstock.com

7A 7B 7C 7D 7E 7F 7G 7H 7I 7J 7K Most schools allow students to vote for
their school captain, as this ensures the
elected individual represents the views
and values of the majority of students.
4.1.9.1 4.1.9.2 How would you feel if your school principal
The principle of The role of the High Court in protecting created a new rule that allowed the
representative government the principle of representative government principal alone to elect the school captain?
Lesson introduction
The Australian Constitution establishes a system whereby the Australian people
elect members of parliament to represent them and make laws on their behalf. In
order to uphold and protect this fundamental principle, the High Court is given the
power to interpret the Constitution and can declare laws invalid if they are found
to be unconstitutional. Therefore, the Constitution acts as a check on parliament
to prevent laws that infringe upon the representative nature of government from
being made.
The principle of representative

government 4.1.9.1
The principle of representative government is established and protected by
KEY TERM
sections 7 and 24 of the Australian Constitution, giving the people the power to
elect members of the Houses of Parliament to represent their views. Section 7 of Representative government a system
the Australian Constitution requires members of the Senate to be ‘directly chosen in which members of parliament are
by the people’, whilst section 24 maintains this requirement for the House of elected by the people of a community
or nation to best represent the needs
Representatives. This enforces the principle of representative government, often
and views of those people.
resulting in parliament establishing laws that reflect the views and values of society.
LESSON LINK
You learnt about the representative
nature of parliament in 7H
Parliament’s ability to make law
– representative nature.

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DEEP DIVE
Sections 7 and 24 of the Constitution

7I THEORY
Sections 7 and 24 of the Australian Constitution require members of the Senate and
House of Representatives to be ‘directly chosen by the people’, respectively. However,
these sections also outline other requirements that must be upheld to protect the
principle of representative government. Sections 7 and 24 of the Australian Constitution
are shown below.
CONSTITUTION Section 7
‘The Senate shall be composed of senators for each State, directly chosen by the
Section 7 people of the State, voting, until the Parliament otherwise provides, as one electorate.
Section 24 But until the Parliament of the Commonwealth otherwise provides, the Parliament
of the State of Queensland, if that State be an Original State, may make laws dividing
the State into divisions and determining the number of senators to be chosen for
each division, and in the absence of such provision the State shall be one electorate.
Until the Parliament otherwise provides there shall be six senators for each Original
State. The Parliament may make laws increasing or diminishing the number of
senators for each State, but so that equal representation of the several Original States
shall be maintained and that no Original State shall have less than six senators.
The senators shall be chosen for a term of six years, and the names of the senators
chosen for each State shall be certified by the Governor to the Governor-General.’
Section 24
‘The House of Representatives shall be composed of members directly chosen by the
people of the Commonwealth, and the number of such members shall be, as nearly
USEFUL TIP
as practicable, twice the number of the senators.
It is important to remember ss 7 and The number of members chosen in the several States shall be in proportion to
24 of the Constitution as citing these the respective numbers of their people, and shall, until the Parliament otherwise
particular sections in your responses provides, be determined, whenever necessary, in the following manner:
can demonstrate an enhanced
understanding of the representative (i) A quota shall be ascertained by dividing the number of the people of the
government principle. You can Commonwealth, as shown by the latest statistics of the Commonwealth,
remember these sections, and their by twice the number of the senators:
corresponding House of Parliament, (ii) The number of members to be chosen in each State shall be determined
by using the following alliteration by dividing the number of the people of the State, as shown by the latest
and rhyme: statistics of the Commonwealth, by the quota; and if on such division there
• section seven senate is a remainder greater than one-half of the quota, one more member shall
• section 24, knockin’ on the house’s be chosen in the State.
door, where representatives But notwithstanding anything in this section, five members at least shall be chosen
introduce the law in each Original State.’
LEGAL CASE
Roach v Electoral Commissioner (2007) 233 CLR 162

Facts
LEGISLATION In 2006, the Commonwealth amended the Commonwealth Electoral Act 1918 (Cth)
to ban all prisoners from voting in Commonwealth elections. Before this new law was
Commonwealth Electoral Act 1918 (Cth) passed, the law prevented those serving a prison term over three years from voting.
At the time the legislation was passed, Roach was serving a six-year prison term.
Legal issue
Roach challenged the validity of the law, arguing the Australian Constitution guaranteed
her the right to vote under ss 7 and 24 of the Constitution.
Decision
The High Court held that a complete ban on all prisoners from voting was unconstitutional
as it was inconsistent with the protection of the representative government principle
under ss 7 and 24 of the Constitution. The government must be chosen by the substantial
majority of the population and thus, the right to vote could only be removed for a
significant reason.
Continues →

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LEGAL CASE
Roach v Electoral Commissioner (2007) 233 CLR 162 – Continued
7I THEORY
However, the High Court rejected part of Roach’s argument, deciding the Constitution
does not protect the right to vote for all adults. Serving a long-term prison sentence LEGAL VOCABULARY
was a significant reason and therefore, an appropriate basis to remove the right to vote. Remand the legal status of an
However, the Court stated that removing the right to vote for all prisoners, even those accused when they are held in custody
on remand, was excessive. A law removing the power to vote is needed to distinguish awaiting trial.
between those who seriously violate the law and serve long prison sentences, and the
majority of prisoners who have committed less serious offences, or are on remand,
and are only in prison for a short time, being three years or less.
Furthermore, the Court found that a person who is imprisoned is still a member of the
community and usually maintains an interest in how society is governed, so removing
the ability to vote can only be done in serious cases. The Court concluded the 2006
amendment to the Commonwealth Electoral Act 1918 (Cth) was invalid. However, the
previous ban to vote on those serving a prison term over three years was held to be
acceptable and the legislation is still applicable today.
Significance
As a result of the decision, Roach did not regain the right to vote as she was serving
a prison term longer than three years. However, prisoners serving shorter prison terms
of three years or less, and those on remand, had their ability to vote reinstated.
The Commonwealth retained the ability to pass laws about who may vote. However, this
decision is significant as the interpretation of ss 7 and 24 restricted the Commonwealth’s
ability to pass laws regarding who may vote.
The principle of representative government is also protected by other sections

of the Australian Constitution. For example, s 28 of the Australian Constitution CONSTITUTION
requires the occurrence of regular elections by outlining that the duration of the
House of Representatives ‘shall continue for three years’. This prevents parliament Section 28
from creating laws to extend its term indefinitely and enables Australian citizens
to elect representatives on a regular basis.
The role of the High Court in protecting

the principle of representative
government 4.1.9.2
The High Court of Australia has an important role in interpreting the Australian
Constitution and settling disputes about its meaning. Sections 75 and 76 of the CONSTITUTION
Australian Constitution outline the original jurisdiction of the High Court, which
includes the power to hear matters arising under the Constitution or involving its Section 75
interpretation. In carrying out its role, the High Court may declare a law, or part of Section 76
a law, as ultra vires if it goes beyond the law-making powers of parliament, meaning
it becomes invalid. Therefore, the High Court acts as a check on parliament,
preventing the legislative branch of government from creating laws that infringe LEGAL VOCABULARY
upon the principle of representative government. However, the High Court can Ultra vires a Latin term meaning
only interpret the Constitution and declare a law, or part of a law, ultra vires ‘beyond the powers’; used in law to
if a case is brought before it by a person with standing. describe an act by a government body
or corporation that requires legal
The High Court has been required to interpret ss 7 and 24 of the Constitution on a authority but is done without it.
number of occasions. By interpreting these sections of the Constitution, the High Court Standing the requirement that, in
of Australia has been able to facilitate the protection of the principle of representative order to bring a case to court, an
government by: individual or group must be affected by,
or have a special interest in, the issues
• recognising the implied right to freedom of political communication. As a result,
involved in the case.
Australians are able to more readily access information regarding political
Implied right a right that is not
candidates and parties so their vote can accurately reflect their values, enabling
explicitly outlined in the Australian
the establishment of a government that best represents the majority views of the Constitution but has been interpreted
Australian population. by the High Court to exist.

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• defining when the ability to vote in Commonwealth elections can and cannot
be removed. This ensures a substantial majority of the Australian population
plays a role in selecting the individuals representing them in parliament and
7I THEORY
large groups of people are not excluded from this process.
LEGAL CASE
Australian Capital Television Pty Ltd and NSW v Commonwealth (1992)

177 CLR 106
Facts
In 1991, the Commonwealth Parliament passed legislation to restrict television advertising
LEGISLATION during an election campaign. The Political Broadcasts and Political Disclosures Act 1991 (Cth)
prohibited the broadcasting of ‘political advertisement(s)’ during an election period.
Political Broadcasts and Political This meant an advertisement containing matter that intended, or had the ability to affect
Disclosures Act 1991 (Cth) voting in the relevant election, matter, or referendum, was prohibited.
Legal issue
The plaintiffs, Australia Capital Television Pty Ltd and NSW, challenged the validity
of this Act in the High Court. They argued that there was an implied right to freedom
of political communication and this Act contravened this implied right.
Decision
Sections 7 and 24 require voters to be free to communicate on political matters.
It was interpreted that a right to free political communication was implied by the words
‘directly chosen by the people’. Therefore, the Act was declared invalid as, according
to Chief Justice Mason, ‘freedom of communication [is] an indispensable element
in representative government’.
Significance
This High Court decision recognised that ss 7 and 24 establish implied rights
to freedom of political communication and it defined what sort of communication
is protected by this implied right. The Court’s decision created a restriction on the
powers of the Commonwealth Parliament, as it was unable to pass laws that prevent
free discussion of political issues. By allowing freedom of political communication,
the principle of representative government can be preserved as Australians remain
informed about who they are voting for, ensuring individuals voted into power are
accurate reflections of the values held by the majority of Australians.
Image: zieusin/Shutterstock.com
Figure 1 The High Court recognised the implied right to freedom of political communication
LEGAL CASE
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Facts
Former prime minister of New Zealand, David Lange, brought a defamation claim
against Australian Broadcasting Corporation (ABC) after he was featured in ABC’s
‘Four Corners’ program. The program alleged that the government was under the
influence of large corporations as a result of political donations made to the party.
Therefore, Lange claimed that the ABC had made defamatory statements by suggesting
he was a corrupt prime minister.
Legal issue
The High Court was required to determine whether the statements made during
the ABC program were defamatory, or protected by the implied freedom of political
communication within the Constitution.
Continues →

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LEGAL CASE
Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 – Continued
7I THEORY
Decision
The High Court held that the statements were defamatory and therefore, not protected
by the implied right to freedom of political communication.
Significance
In its judgement, the High Court developed a two-stage test to determine whether a law
infringes upon the implied freedom of political communication: USEFUL TIP
1. Firstly, does the law restrict freedom of communication about government or An important key skill in Area
political matters? of Study 1 of Unit 4 VCE Legal
2. If the law does restrict that freedom, is the law reasonably appropriate and adapted Studies is ‘evaluate the means by
to serve a legitimate end that is compatible with the maintenance of representative which the Australian Constitution
and responsible government? acts as a check on parliament in
law-making’. The role of the High
If the answer to the first question is ‘yes’, and the second question is ‘no’, the law will
Court in protecting the principle of
be found to breach the implied freedom of political communication.
representative government is one of
However, in a separate legal decision for the case of McCloy v NSW (2015) 257 CLR 178, these means. Therefore, this table
the test was expanded to include a third point: showing strengths and limitations can
3. Is the law reasonably appropriate and adapted to advance that legitimate objective? help you complete this evaluation.
Table 1 Evaluating the role of the High Court in protecting the principle of representative government as a check on parliament
in law-making
• The High Court can declare a law, or part of a law, invalid if it • The High Court can only interpret the Constitution and
breaches the principle of representative government and has declare a law, or part of a law, invalid for breaching the
been made beyond the law-making powers of parliament. principle of representative government if a case is brought
• When interpreting the Australian Constitution, the High before it. Therefore, the Court cannot declare a law invalid
Court may recognise implied rights, such as the right to as soon as it has been passed by parliament, meaning an
freedom of political communication, which is fundamental invalid law may operate for several years until a person
to upholding the principle of representative government. challenges its validity in the High Court.
• The High Court is an independent judiciary, meaning it is • In order for a person to bring a case to the High Court,
not subject to the influence of other branches of government. they must have standing. For example, an individual with
This independence enables the Court to impartially interpret an interest in correcting the law, but who is not directly
the Constitution and declare a law, or part of a law, invalid affected by it, has no avenue to bring the case to court.
if it breaches the principle of representative government. • The High Court can only protect the principle of
• The difficulty in bringing a case to the High Court and representative government relevant to the facts of the case
establishing standing to do so ensures that only relevant before it. Therefore, the High Court cannot create laws to
cases, often requiring High Court interpretations of the further protect representative government outside the case.
Constitution, are brought before it. • High Court judges are appointed by the government of the
day, which may lead to the appointment of judges who are
sympathetic towards the government’s position, rather than
being impartial.
• As the cost and time associated with bringing a case to the
High Court are significant, this decreases the number of
cases initiated in the High Court. Thus, the Court’s ability
to act as a check on parliament in law-making is limited.
Lesson summary
The principle of representative government is established and protected by ss 7 and 24
of the Constitution. To ensure the principle of representative government is upheld, the
High Court of Australia may be required to:
• give meaning to the words in the Australian Constitution and, if necessary, declare
a law, or part of a law, invalid if it infringes upon the democratic principles and system
of government the Constitution establishes.
• interpret the Australian Constitution and recognise an implied right that, whilst not
explicitly stated in the Constitution, is fundamental in upholding the principle
of representative government.

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7I Questions
7I QUESTIONS

Question 1
The principle of representative government ensures members of parliament are elected by the Australian
people to make laws on their behalf.
A. True
B. False
Question 2
House of Representatives Senate
Section 7 of the Australian Constitution requires members of the to be directly chosen by the
people, whilst section 24 requires members of the to also be directly chosen by the people.
Question 3
The High Court of Australia may be required to give meaning to words in the Australian Constitution and,
if necessary, declare any law invalid that infringes upon the democratic principles and system of government
the Constitution establishes.
A. True
B. False
Question 4
Tick the box to indicate whether the following statements are strengths or limitations of the role of the High
Court in protecting the principle of representative government.

I. High Court judges are appointed by the government of the day, which may lead to the
appointment of judges who are sympathetic towards the government’s position, rather than
being impartial.
II. The High Court can only interpret the Constitution and declare a law invalid for breaching the
principle of representative government if a case is brought before it.
III. If a case is brought before it, the High Court can declare a law invalid if it has been made
beyond the law-making powers of parliament.
Question 5
The High Court can declare laws that infringe upon ss 7 and 24 of the Australian Constitution to be invalid,
and create new laws to further protect the principle of representative government.
A. True
B. False

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Preparing for exams

Standard exam-style
7I QUESTIONS
Explain the role of the High Court in protecting the principle of representative government.
Describe how ss 7 and 24 of the Australian Constitution protect the principle of representative government.
Analyse how the High Court, in protecting the principle of representative government, acts as a check on
parliament in law-making.
In Roach v Electoral Commissioner (2007), the High Court declared Commonwealth legislation was invalid
as it banned all prisoners from voting in Commonwealth elections. Before this new law was passed, the law
prevented those serving a prison term over three years from voting. The High Court stated that a complete ban
on all prisoners from voting was unconstitutional as it was inconsistent with the protection of representative
government under ss 7 and 24 of the Constitution.
With reference to Roach v Electoral Commissioner, analyse how ss 7 and 24 of the Australian Constitution have
protected the principle of representative government.
Extended response
Question 10
Tick the box to indicate whether the following statements are strengths or limitations of the role of the High
Court in acting as a check on parliament by protecting the principle of representative government.

I. The High Court can only interpret the Constitution and declare a law invalid on the basis that
it breaches the principle of representative government if a case is brought before it.
II. The High Court can declare a law invalid if it has been made beyond the law-making powers of
parliament, meaning it has unconstitutionally breached the principle of representative government.
III. When interpreting the Australian Constitution, the High Court may recognise implied rights,
such as the freedom of political communication.
IV. High Court judges are appointed by the government of the day, which may lead to the appointment
of judges who are sympathetic towards the government’s position, rather than being impartial.
V. As the cost and time associated with bringing a case to the High Court are high, this decreases
the number of cases initiated in the High Court.
Evaluate how the High Court, in protecting the principle of representative government, acts as a check
on parliament in law-making.

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7I QUESTIONS
Following criticism of Australia’s voting system, a law has been passed that bans all people under the
age of 30 from voting in elections. Sally, who is 25 years old, believes this is in breach of her right to vote,
which is protected by sections 7 and 24 of the Australian Constitution. She is therefore thinking of taking
the matter to the High Court.
Question 12
Tick the box to indicate whether the following statements are strengths or limitations of the ability of the
High Court to act as a guardian of the Australian Constitution in its interpretation of ss 7 and 24.

I. The High Court can declare the law banning all people under the age of 30 from voting
in elections invalid if it is found to breach ss 7 and 24 of the Australian Constitution.
II. The High Court can only interpret ss 7 and 24 of the Constitution and declare the law banning
all people under the age of 30 from voting in elections invalid if the case is brought before it.
III. As the High Court is an independent judiciary and is not subject to the influence of parliament,
it can interpret ss 7 and 24 of the Constitution and declare the law invalid without being influenced
by political considerations.
IV. Sally may not wish to spend money and time bringing her case to the High Court, therefore
it may not be determined if the law banning those under 30 from voting is unconstitutional.
With reference to Sally, discuss the role of the High Court in acting as a guardian of the Australian Constitution
in its interpretation of ss 7 and 24.

Describe one role of the House of Representatives in upholding the principle of representative government.

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7J The Constitution as a check on

parliament – the separation of powers

government
– the separation of the legislative, executive and judicial powers Image: aleks333/Shutterstock.com
– the express protection of rights If you could have any superpower,

what would it be? Maybe invisibility or
teleportation, or perhaps mind reading?
7A 7B 7C 7D 7E 7F 7G 7H 7I 7J 7K
In any case, every superhero has unique
powers that enable them to do certain
things. Likewise, those who have the
power to govern society by making or
4.1.10.1 administering the laws have distinct
The separation of powers powers and responsibilities to ensure
society functions in a cohesive and
democratic manner.
Lesson introduction
The Australian Constitution outlines three distinct branches of power within the
KEY TERMS
parliamentary system. This distinction is known as the separation of powers, and
ultimately ensures there is no abuse of powers within the parliamentary or judicial Separation of powers a principle
system by defining which bodies have the power to perform certain functions. established by the Australian
Although the separation of powers, according to the Australian Constitution, only Constitution that ensures the
applies to the federal level of parliament, the states and territories have also adopted legislative, executive, and judicial
powers remain separate.
the same mechanism in their parliamentary and judiciary bodies.
Legislative power the power vested in
parliament that enables it to make laws.
The separation of powers 4.1.10.1 Executive power the power, vested

in the King and exercised by the
The three powers contained in the separation of powers include legislative power, Governor-General, to maintain and
executive power, and judicial power. administer the law and the business
of government.
Legislative power resides with the parliament and allows it to make laws. Executive
Judicial power the power vested
power refers to those that belong to the Governor-General. This branch of power in courts and tribunals that enables
administers laws and manages the business of government. In practice, the executive them to enforce laws and resolve
power is primarily exercised by Cabinet, which includes the prime minister and senior legal matters.
ministers, and more broadly by the government and public servants employed by the
government, such as the police. Finally, the judicial power allows the courts and LEGAL VOCABULARY
tribunals to apply the laws to cases before them and resolve legal matters. Governor-General the representative
of the monarch in the Commonwealth
Key reasons for the separation of powers include: Parliament.
• preventing any abuses of power by bodies involved in the creation of laws Cabinet a central decision-making
and the administration of justice body consisting of the prime minister,
in the federal context, and the premier,
• upholding the rule of law and ensuring one body cannot simultaneously make,
in the state context, alongside senior
administer, and apply the law
members of government, including
• ensuring parliament cannot prosecute and adjudicate legal matters, the same ministers, who are responsible for
way judges cannot hold seats in parliament where the laws are being made. developing government policy and
addressing issues of concern.

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USEFUL TIP
Remember the division of powers and the separation of powers are two distinct and
separate concepts. The division of powers, being exclusive, concurrent, and residual, are
7J THEORY
the different powers distributed between the Commonwealth and the states that allow
them to make laws in different areas. On the other hand, the separation of powers, being
legislative, executive, and judicial, refers to the three branches of power that ensure a
proportionate distribution of power amongst the parliament and the courts.
Table 1 The separation of powers
Relevant section
The party that exercises
Power Explanation of the Australian
the power
Constitution
CONSTITUTION Legislative The power vested Section 1 • The Commonwealth

power in parliament Parliament can exercise
Section 1 that enables it to legislative powers.
Section 61 make laws. • This includes
Section 71 the House of
Representatives and
the Senate.
Executive The power, vested Section 61 • This power is

power in the King and technically vested
exercised by the in the Crown and
Governor-General, exercised by the
to maintain and Governor-General,
administer the law but in practice, it
and the business is exercised by the
of government. prime minister,
senior ministers,
and government
departments.
• For example, the
Department of Foreign
Affairs is part of the
executive branch.
Judicial The power vested Section 71 • Courts and tribunals

power in courts and can exercise this power.
tribunals that
enables them
to enforce laws
and resolve
legal matters.
In theory, all three powers are separate. However, in Australia, the legislative and
executive powers are combined and operate together. This is because the power
to manage the business of government and administer the law (executive power)
resides with Cabinet, which is also involved in creating legislation (legislative
power). Therefore, it is Cabinet, composed of the prime minister and senior ministers
at the Commonwealth level, that exercises executive powers, as opposed to the
Governor-General. These ministers also contribute to exercising legislative power
by making laws.
However, the judicial powers must operate independently. Judges and the courts
LEGAL VOCABULARY
are completely separate from the parliamentary process of making legislation and
Member of parliament (MP) cannot exercise legislative or executive powers. Similarly, a member of parliament
an elected, political representative (MP) must also not exercise judicial powers.
such as a district or state.

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Legislative
The power to ‘make’ laws.
• Members of the Senate
7J THEORY
Judiciary • Members of the House
The power to ‘adjudicate’ of Representatives
via the application of laws. • The King, represented
• The courts, including by the Governor-General
magistrates, judges
and justices • The prime
• Tribunals minister.
• Ministers
• Cabinet
Executive
The power
to ‘administrate’ laws.
• Government agencies
• Members of public service,
such as police officers
Figure 1 The relationship between legislative, executive, and judicial powers
WANT TO KNOW MORE?

The unprecedented nature of the COVID-19 pandemic led to the executive branch
of government utilising emergency powers and bypassing the standard protocols of
operation for the executive and legislative branches, in order to enact lockdown laws.
You can find out more about the influence of the pandemic on the separation of powers
by searching ‘Who is making our laws? The separation of powers in 2020’ and clicking
the ‘LSJ’ (Schwarz, 2020) webpage.
DEEP DIVE
Comparing the judicial selection process in the United States and Australia
Whilst there are various processes utilised globally to select judges, the United States
and Australia both use a method of appointment. This process grants the executive
branch of government, or other relevant judiciary councils, the responsibility of
appointing judges.
According to the US Constitution, the power to nominate judges resides with the President.
After nominating a candidate, the Senate Judiciary Committee will conduct an interview
process in what is known as a ‘confirmation hearing’. Finally, the entire Senate votes
to either accept or reject the President’s nominee. Notably, at the state level, judicial
selection processes vary with some states in the US choosing to follow an appointment
method, whilst other states use an election process whereby citizens are involved in the
selection of judges.
Australia employs an appointment process at both the federal and state level. Section 72 CONSTITUTION
of the Constitution states that the Governor-General is responsible for appointing
federal judges on the advice of Cabinet and according to a range of criteria. Unlike Section 72
the United States, parliament is rarely involved in the process of judicial selection.
Additionally, the specific details of judicial appointment vary across jurisdictions and
courts at the state level.
Adapted from ‘Judicial appointments: US and Australia’ (Rule of Law Education Centre, 2016) and ‘Judicial
Selection in the United States – A Special Report’ (Office of Justice Programs, 1980)

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You learnt about exclusive and Australian Communist Party v Commonwealth (1951) 83 CLR 1
concurrent powers in 7C The division
7J THEORY
of powers. Facts
In October 1950, the Commonwealth Parliament passed the Communist Party Dissolution
Act 1950 (Cth), banning the Communist Party of Australia and taking possession of all
its property. The legislation included passages outlining why communism presented
a threat to Australia and therefore, deserved to be banned. It also sought to prevent
members of the Communist Party from being employed in any Commonwealth
government department.
The government of the day had been elected on the promise of introducing and passing
this legislation, and it was very popular with a majority of voters.
Legal issue
The Communist Party, and various other individuals and trade unions affected by the law,
challenged the validity of this legislation in the High Court, arguing the Commonwealth
did not have the authority to pass laws banning a political party.
Decision
The High Court upheld this challenge, ruling the legislation was invalid. The Court stated
LEGAL VOCABULARY its role was not to decide whether this was a good law or a bad law as that is the role
Ultra vires a Latin term meaning of the elected members of parliament. Rather, the Court’s role was to decide whether
‘beyond the powers’; used in law to the Commonwealth had the power to make the law as per the Australian Constitution.
describe an act by a government body The Court decided neither the exclusive nor the concurrent powers enabled the
or corporation that requires legal Commonwealth Parliament to pass this law.
authority but is done without it. Significance
Standing the requirement that, in order This case exemplifies the importance of independent courts under the separation
to bring a case to court, an individual of powers principle. Despite the political popularity of this law at the time, the
or group must be affected by, or have a independent court ruled it unconstitutional, providing a check on the law-making
special interest in, the issues involved in power of the parliament. Without the separation of the judicial power, this check
the case. may not have been possible.
Table 2 Evaluating the separation of powers as a check on parliament in law-making
• The separation of powers ensures there is a constitutional • In practice, legislative and executive powers overlap and
check and balance that minimises the possibility of an operate together, which can limit the ability of parliament
abuse of powers. to act as a check on itself internally.
• The independence of the judiciary ensures legal matters • Though the judiciary must remain completely
can be determined without the influence of external independent, judges are appointed by the executive.
factors, such as political pressures, given judges cannot Consequently, the composition of the judiciary may be
be associated with political parties. somewhat influenced by the political motivations and
• The legislative branch acts as a check on the power of the values of the executive of the day.
executive as bills introduced by members of the executive, • The composition of MPs from each party within the
such as Cabinet MPs, may still be scrutinised and not Houses of Parliament can influence the effectiveness of the
passed if parliament does not agree with its purpose. legislature in acting as a check on the executive and laws
• The judiciary can declare laws created by parliament in general. For example, where the government holds a
‘ultra vires’ the Commonwealth Parliament has breached majority in both houses, the bills introduced by members
its law-making powers according to the Constitution. of the executive may not be challenged sufficiently by
This restricts the Commonwealth Parliament’s legislative members of the legislature, resulting in less scrutiny and
power, ensuring it cannot legislate outside the scope of its debate on proposed legislation.
exclusive and concurrent powers. • In order to challenge a law in the High Court, a person
• The separation of powers is constitutionally guaranteed, must have standing. Laws created by parliament that are
meaning it must be upheld and cannot be removed without invalid may therefore, remain in force if no one has the
a referendum. standing or financial means to bring an allegedly invalid
law before the court and have it deemed ultra vires.
• The Australian Constitution ensures the separation
of powers at the Commonwealth level but does not
guarantee the separation of powers at the state level.
However, most states have embedded this principle in
their state constitutions.

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The separation of powers operates as a constitutional check on parliamentary An important key skill in Area of
7J QUESTIONS
law-making and ensures abuses of power do not occur. The powers are separated
is ‘evaluate the means by which the
into three branches: the executive, legislative, and judiciary. These powers are Australian Constitution acts as a
explicitly laid out in the Australian Constitution. check on parliament in law-making’.
The separation of powers is one of
Table 3 Sections of the Constitution that establish the separation of powers these means. Therefore, the table
showing strengths and limitations of
Power Section of the Constitution
the separation of powers as a check
Legislative Section 1 on parliament in law-making can help
you complete this evaluation.
Executive Section 61
Judicial Section 71
In practice, the people comprising the executive and legislative branches overlap,
whilst the judiciary must remain completely independent.
Legislative power • House of Representatives

(making the law) • Senate
• Governor-General
The separation Executive power • Prime Minister
of powers (administering the law) • Cabinet
Judical power • The courts

(applying the law) • Tribunals
Figure 2 A summary of the separation of powers
7J Questions
Question 1
The separation of powers refers to:
A. the exclusive, concurrent, and residual law-making powers that allow the Commonwealth and state
parliaments to legislate in different areas.
B. a principle whereby the Constitution establishes three branches of power that must remain separate.
C. the divide between the power of the parliament and the power of the people.
Question 2
executive judicial legislative
The is the branch with the power to administer laws and conduct the business of the government,
whereas the power is exercised to create laws in Australia. Finally, the power
ensures the independent application of laws to resolve legal matters.

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Question 3
Which of the following are members of the executive branch? (Select all that apply)
7J QUESTIONS
A. A judge of the Federal Court of Australia.

B. Government departments.
C. The prime minister.
D. The Governor-General.
Question 4
The section of the Australian Constitution relating to judicial powers is:
A. section 1.
B. section 61.
C. section 71.
Question 5
In practice, executive and legislative powers overlap and are not completely separate.
A. True
B. False
Question 6
Key reasons for the separation of powers include:
A. preventing any abuses of power by bodies involved in the creation of laws and the administration of justice.
B. ensuring the prime minister has enough power to govern the country.
C. upholding the rule of law and ensuring one body cannot simultaneously make, administer, and
apply the law.
D. ensuring parliament cannot prosecute and adjudicate legal matters, the same way judges cannot hold
seats in parliament where laws are being made.
Preparing for exams

Standard exam-style
Outline the executive power under the separation of powers.
Explain how the separation of powers acts as a check on the law-making of parliament.
Distinguish the legislative power and judicial power.
‘In practice, the executive power is always exercised by the Governor-General.’
Is this statement true? Justify your response.

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Extended response
7J QUESTIONS
Question 11
Tick the box to indicate whether the following statements are strengths or limitations of the separation
of powers as a check on parliamentary law-making.

I. The judiciary can declare laws created by parliament as ‘ultra vires’ if the Commonwealth
Parliament has breached its law-making powers according to the Constitution. This restricts
the Commonwealth Parliament’s legislative power to ensure it cannot legislate outside the
scope of its exclusive and concurrent powers.
II. Although the judiciary must remain completely independent, judges are appointed by the
executive. Consequently, the composition of the judiciary is influenced by the political
motivations and values of the executive.
III. The independence of the judiciary ensures cases can be determined without the influence
of external factors, such as political pressures, given judges cannot be associated with
political parties.
IV. In practice, legislative and executive powers overlap as members of parliament may also
be ministers that form part of the executive. This can limit the ability of each branch of
government to act as a check on each other.
Evaluate the extent to which the separation of powers acts as a check on parliament in law-making.

Federal MP, Duncan Anderson, wishes to introduce a bill, the Mandatory Education Material Bill 2084
(Cth), mandating all schools to use Edrolo products. He believes that if the law was passed and a parent
sued the government for mandating certain educational material, he would be entitled to be the judge
determining the case.
a. Justify whether MP Anderson has the ability to introduce a bill regarding education. 3 MARKS
b. With reference to the separation of powers, explain whether MP Anderson would be entitled to be the
judge determining the court case involving the Mandatory Education Material Act 2084 (Cth). 4 MARKS

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7K The Constitution as a check on

parliament – express protection of rights

government
– the separation of the legislative, executive and judicial powers
– the express protection of rights
Image: Arthimedes/Shutterstock.com
7A 7B 7C 7D 7E 7F 7G 7H 7I 7J 7K
In Australia, there are various national public
holidays, such as Christmas, New Year’s
Day, and the King’s birthday. Yet, what
would happen if the government suddenly
4.1.11.1
declared that all national public holidays no
longer exist…. do they have the power to do The express protection of rights
so? Or do citizens have a fundamental right 4.1.11.1.1 Acquisition of property on ‘just terms’
to public holidays? Even though it would be
highly unlikely to occur, public holidays are 4.1.11.1.2 Trial by jury for Commonwealth indictable offences
not protected by the Australian Constitution, 4.1.11.1.3 Interstate trade and commerce
meaning they are not a guaranteed right
4.1.11.1.4 Freedom of religion
and parliament has the power to erase
public holidays. However, other key rights, 4.1.11.1.5 No discrimination based on your state of residence
known as express rights, are afforded to all
Australian citizens and are protected by the
KEY TERM Lesson introduction

The Australian Constitution explicitly establishes five rights that are afforded to
Express rights the five human
rights that are explicitly stated every Australian citizen. These rights are entrenched in the Constitution, meaning
and entrenched in the Australian they cannot be removed or changed by parliament alone, unlike other legal rights,
Constitution. which may be altered. Express rights can act as a check on parliament’s law-making
by ensuring it cannot pass laws that restrict or infringe certain core rights.
LEGAL VOCABULARY
vote in which members of the electoral The express protection of rights 4.1.11.1
Australian Constitution. Express rights are human rights or legal entitlements specifically stated and
Standing the requirement that, in entrenched in the Australian Constitution. Given such rights are entrenched in
order to bring a case to court, an the Constitution, they can only be amended or removed through the process of a
individual or group must be affected by, referendum. A referendum requires a compulsory, national vote and is the only
or have a special interest in, the issues mechanism by which the Constitution’s wording can be changed. Express rights
involved in the case. are legally enforceable, meaning if legislation is created by parliament that a person
or organisation believes breaches a certain express right, the law’s validity can be
challenged in the High Court by a person with standing.
LESSON LINKS
You will learn more about referendums
in 10B Referendums.
You will learn more about standing in
8D Courts’ ability to make law
- costs, time, and the requirement
for standing.

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The right to the acquisition The right to a trial by jury The right to interstate The right to freedom The right to not be
of property on ‘just terms’ for Commonwealth trade and commerce of religion discriminated against
indictable offences based on your state
of residence
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$
Figure 1 The five express rights established in the Constitution
Acquisition of property on ‘just terms’ 4.1.11.1.1

According to section 51(xxxi) of the Constitution, the Commonwealth Parliament CONSTITUTION
has the right to legislate about and acquire ‘property on just terms from any State or
person’ for any purpose that is within the scope of its law-making powers. Section Section 51 (xxxi)
52(i) of the Constitution states that the Commonwealth has the power to make
laws regarding land acquired for public purposes. Therefore, the Commonwealth
Parliament may acquire land for public purposes, such as building an airport or
erecting a public office. If the Commonwealth enacts this power, it must provide
‘just terms’ to the owner of the property, such as fair and reasonable compensation.
Limitations of the right to acquisition of property on ‘just terms’:

• There is no specification on what constitutes ‘just terms’. Therefore, the
compensation provided by the Commonwealth Parliament may be disputed and
perceived as unjust depending on the subjective circumstances.
• This section does not apply to the states. There is no right enshrined in the
Constitution ensuring states provide just terms when acquiring property from
a person or business. Although many states have created legislation ensuring
the acquisition of property is on ‘just terms’, this legislation can be repealed.
However, this is unlikely to occur therefore this limitation is minor.
LEGAL CASE
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140

Facts
In 2004, the National Water Commission Act 2004 (Cth) established an independent LEGISLATION
statutory body called the National Water Commission. The commission was designed to
assess the progress of the states and territories in relation to the National Water Initiative’s National Water Commission Act
objectives and provide advice to governments on national water issues. The commission 2004 (Cth)
was also able to create funding agreements. One of these agreements was with New South
Wales (NSW), where the state agreed to reduce its citizens’ entitlements to groundwater
under NSW legislation in exchange for funding that would provide payments to those
affected by this change.
Prior to the legislative changes and under previous water boring licences, two of the
plaintiffs (who united to form ‘ICM’) were entitled to access 70% more water, whilst
the third plaintiff (Hillston) was entitled to access 66% more water. The NSW state
government offered the plaintiffs $818,730 and $93,830 in compensation, respectively.
However, the plaintiffs claimed these payments were inadequate and did not comply with
the meaning of ‘just terms’ as per s 51(xxxi) of the Constitution. The Commonwealth
conceded that the making of these payments would not amount to ‘just terms’ but
disputed that there had been an ‘acquisition’ of property under s 51(xxxi).
Legal issue
One key issue in this case was whether the state’s regulation of water was considered
an ‘acquisition’ of property as per s 51(xxxi). The plaintiffs argued the new legislation
did amount to acquisition and, therefore, the provision of ‘just terms’ to the plaintiffs
was necessary.
Continues →

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LEGAL CASE
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 –Continued
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Decision
The High Court held there had been no acquisition of the plaintiffs’ property under
s 51(xxxi) as the legislation that reduced the plaintiffs’ water entitlements conferred
no identifiable benefit to NSW. NSW always had the power to limit the volume of water
usage by the plaintiffs and had, in the past, restricted the plaintiffs’ access to and use
of this natural resource. Although the new legislation limited the plaintiffs’ use of water,
it did not constitute ‘acquisition’.
Significance
The scope of ‘acquisition’ was explained by the High Court to be the ‘obtaining of
at least some identifiable benefit or advantage relating to the ownership or use of
property’. Therefore, since NSW obtained no benefit from owning the property,
acquisition was not made out. Furthermore, the court distinguished between the
concepts of ‘acquisition’ and ‘deprivation’, suggesting the extinguishment, modification,
or deprivation of property rights does not amount to acquisition, rather an identifiable
benefit is required for acquisition. This decision may influence the validity of any
legislative provisions relating to a potential acquisition as per the meaning of s 51(xxxi),
where there is a dispute about whether an acquisition has occurred.
REAL WORLD EXAMPLE
Federal fumble – the Leppington Triangle

In 2018, the Federal government bought a plot of land, known as the Leppington Triangle,
from the Leppington Pastoral Company (LPC), for $29.8 million. The land was purchased
as part of a development plan for a second runway at the Western Sydney Airport, which is
not expected to be built until 2050. However, an investigation conducted by the Australian
National Audit Office (ANAO) less than one year after the purchase revealed the land was
only worth just over $3 million.
Hence, whilst the Commonwealth Parliament must acquire property on ‘just terms’, there has
been much backlash and inquiry into how the sale of the land, which was purchased for
Image: MC MEDIASTUDIO/Shutterstock.com
10 times its actual value, was agreed upon and finalised.
Figure 2 In 2018, the Federal government
purchased land for 10 times its value Adapted from ‘Government paid 10 times what Western Sydney Airport land was worth, audit finds’ (Doran, 2020)
Trial by jury for Commonwealth indictable

offences 4.1.11.1.2
CONSTITUTION According to section 80 of the Constitution, ‘the trial on indictment of any
offence against any law of the Commonwealth shall be by jury’. This means for all
Section 80 Commonwealth indictable offences, such as trafficking commercial quantities of
drugs or slavery, the accused person who committed the offence must be tried by
jury. In Commonwealth trials by jury, the decision of the jurors must be unanimous
in order for the accused to be found guilty, meaning all jurors must believe, beyond
reasonable doubt, the accused committed the alleged offence.
As s 80 only guarantees a trial by jury for Commonwealth indictable offences, it
is up to individual states and territories to uphold this right for their respective
indictable offences by passing relevant legislation. For example, in Victoria the
rights of an accused include the right to a trial by jury, which is protected by the
LEGISLATION Criminal Procedure Act 2009 (Vic).
Criminal Procedure Act 2009 (Vic) Limitations of the right to a trial by jury for Commonwealth indictable offences:
• Most criminal offences are created by state laws, not Commonwealth law.
• Section 80 does not prevent state parliaments from passing laws to have serious
LESSON LINK offences tried by judges alone.
You learnt about the right to a trial • Section 80 only applies to those charged with an indictable offence and is not
by jury in Victoria in 1B Rights of an applicable to summary offences.
accused.

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WANT TO KNOW MORE?

Just as each state has its own Acts in criminal law, such as the Victorian Crimes Act
1958 (Vic) and Summary Offences Act 1966 (Vic), the Commonwealth also has a Criminal
7K THEORY
Code Act 1995 (Cth). You can find out more about crimes that are Commonwealth
offences by searching ‘Commonwealth criminal offences’ and clicking the Slades
& Parsons (2018) webpage.
LEGAL CASE
Brown v R (1986) 160 CLR 171

Facts
Mr Brown was charged with an indictable offence under the Customs Act 1901 (Cth) and LEGISLATION
requested to be tried by a judge alone, without a jury. The Juries Act 1927 (SA) stipulates
that an indictable offence may be tried by a judge alone if the court and the prosecution Customs Act 1901 (Cth)
consent. However, the trial judge ruled that even if the court consented to a judge-alone Juries Act 1927 (SA)
trial, s 80 of the Constitution does not allow a person charged with a Commonwealth
offence to be tried by a judge alone, and hence a jury trial is the only option.
Following the trial, the accused appealed the case on multiple grounds, one reason being
USEFUL TIP
that the trial judge ruled against a trial by judge alone and this was contrary to s 7(1) of
the Juries Act 1927 (SA). This section of the Act stipulated an accused could elect to be Remember, the Constitutional right
tried by judge alone and, if the accused received legal advice to be tried by judge alone, the to a trial by jury only applies to
judge must allow the trial to proceed without a jury. Therefore, Mr Brown contended the Commonwealth indictable offences.
trial judge should have allowed his trial to proceed without a jury since he had requested Therefore, if you are asked in an exam
a judge-alone trial. or SAC whether an individual has the
constitutionally guaranteed right to a
Legal issue
trial by jury, the answer is usually ‘no’,
The High Court was required to determine whether s 80 contains an ‘imperative and unless they have been charged with
indispensable requirement’ that there must be a trial by jury if an accused is charged a Commonwealth indictable offence.
with a Commonwealth indictable offence, or whether a trial by jury is a privilege an However, this does not mean the
accused can waive if permitted. accused does not have the right to a
Decision trial by jury, as states have created
their own laws that establish which
The High Court held an accused charged with a Commonwealth indictable offence must
offences require a trial by jury.
be tried by jury and there cannot be a trial by judge alone. Therefore, s 7 of the Juries
Act 1927 (SA) was held to not apply to Commonwealth indictable offences, but was
still valid for criminal offences regulated under South Australian legislation. Therefore,
Mr Brown could not be exempt from a trial by jury as his crime was a Commonwealth
indictable offence.
Significance
This case demonstrates that the express right to a trial by jury cannot be waived
when an accused is charged with a Commonwealth indictable offence. Though state
legislation may exist that permits trial by judge alone for indictable offences, this is only
applicable to cases where the individual has been charged with an indictable offence
under state law, not Commonwealth law.
Money, money, money, it’s a rich man’s world

Gio was arrested for operating a lucrative money laundering scheme to fund his dance
studio and new astrology business. His scheme involved importing mutilated coins that
cannot be easily identifiable as coins, and depositing them into various ATMs across a
six-month period. Damaged coins are not considered valid currency in Australia. Gio’s
scheme produced over $1 million, some of which was seized from his property at the
time of his arrest. He is set to face court in three months and will be tried by jury as
money laundering is a Commonwealth indictable offence. This means a 12-person group
of randomly selected members from the electoral roll will listen to evidence and facts
presented at trial before delivering a verdict as to whether Gio is guilty or not guilty of Figure 3 Gio’s groovy dreams were funded
money laundering. by fraud

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Interstate trade and commerce 4.1.11.1.3
CONSTITUTION According to section 92 of the Constitution, ‘trade, commerce, and intercourse

7K THEORY
among the States, whether by means of internal carriage or ocean navigation, shall
Section 92 be absolutely free’. This means the Commonwealth or state parliaments cannot
restrict the flow of trade and movement of goods between states. For example, taxes
that are protectionist in nature, in that they seek to put one state in a better position
than another, cannot be introduced on items that are transported between states.
Additionally, in practice, this right generally relates to the movement of individuals
between states, which cannot be restricted by law. However, as demonstrated by
the Palmer v Western Australia (2021) 274 CLR case, where the plaintiff argued
Western Australia’s border closures were unconstitutional during the COVID-19
pandemic, the High Court ruled that border closures were constitutionally valid in
these circumstances. This was because such restrictions were not discriminatory on
interstate trade and commerce. Hence, laws that seek to restrict interstate trade and
commerce can still exist as long as they are not discriminatory.
Limitations to the right to interstate trade and commerce:

• It is not an absolute right and laws can still exist that restrict interstate
movement as long as they are not deemed ‘discriminatory’.
LEGAL CASE
Cole v Whitfield (1988) 165 CLR 360

Facts
David Whitfield, a Tasmanian citizen, was charged with unlawfully possessing
undersized crayfish. The crayfish had been purchased from South Australia and shipped
to Tasmania. According to South Australian laws, the crayfish was a legal size, however,
this was not the case according to Tasmanian law. Inspector Robert Cole charged
LEGISLATION Whitfield under the Sea Fisheries Regulations 1962 (Tas) for possessing the illegal-sized
crayfish. Whitfield argued that according to s 92 of the Australian Constitution, he had
Sea Fisheries Regulations 1962 (Tas) the right to freedom of interstate trade and to import the crayfish from South Australia.
Legal issue
The court was required to determine whether the Sea Fisheries Regulations 1962 (Tas)
breached the constitutional express right to interstate trade and commerce.
Decision
The court determined that the Sea Fisheries Regulations 1962 (Tas) did not breach the
constitutional express right of free interstate trade and commerce as the purpose of
the Tasmanian legislation was not discriminatory or protectionist, rather the legislation
sought to encourage the conservation of the species. Therefore, the law was not
discriminatory as it applied to all imported crayfish.
Significance
Although interstate trade and commerce must remain ‘absolutely free’ according to s 92,
this express right does not guarantee that trade and commerce must always be absolutely
free from restriction. The court held that the restriction on selling undersized crayfish did
not have a discriminatory purpose and was in the interest of protecting natural resources.
The case highlighted that laws can still exist that restrict interstate movement as long as
they are not deemed ‘discriminatory’ or have a protectionist purpose.
Freedom of religion 4.1.11.1.4
CONSTITUTION According to section 116 of the Constitution, the ‘Commonwealth shall not make
any law for establishing any religion, or for imposing any religious observance,
Section 116 or for prohibiting the free exercise of any religion, and no religious test shall be
required as a qualification for any office or public trust under the Commonwealth’.
This means the Commonwealth Parliament cannot pass laws that restrict religious
practice, impose a religion on an individual, or promote discrimination against an
individual on the basis of religion.

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Limitations of the right to freedom of religion:

• Section 116 limits the Commonwealth’s law-making powers, but does not apply
to the state parliaments. That is, it does not stop states from passing laws to limit
7K THEORY
the freedom of religious practices.
• A law that has the effect of forcing a person to do something their religion
prohibits does not necessarily breach s 116. For example, the Commonwealth
Parliament can pass a law conscripting individuals to fight in a war, even though
it may be contrary to some individuals’ religious beliefs about protecting life,
and this would not be invalid under s 116.
REAL WORLD EXAMPLE
Queensland court rules that Sikh ceremonial knives are permitted on school
grounds
According to Sikh religious practices, Sikhs are required to wear five articles of faith
at all times, known as the five Ks, one of which is a curved blade known as a kirpan.
However, Queensland legislation banned the carrying of knives in public places and
schools. Ms Athwal, who practises the Sikh religion, took the government to court in
2022, claiming the legislation was discriminatory against people of the Sikh faith.
The Court of Appeal found that the Weapons Act 1990 (Qld) was inconsistent with the LEGISLATION
Racial Discrimination Act 1975 (Cth) and, as a result, s 51(5) of the Weapons Act 1990
(Qld) was deemed invalid as per s 109 of the Constitution. The court held that Sikhs are Weapons Act 1990 (Qld)
legally permitted to carry the Kirpan in schools, however, this does not extend to other Racial Discrimination Act 1975 (Cth)
individuals carrying knives in a school environment.
This case demonstrates how a parliament’s law-making can be restricted by express
rights. The express right to the freedom of religion does not explicitly apply to states,
meaning states could pass legislation that restricts religious practices. However, s 116
can still be impactful if the state legislation conflicts with a Commonwealth Act that
seeks to protect an express right. Ultimately, this case protected freedom of religion
and reiterated the right for individuals to freely practise religion.
Adapted from ‘Sikh Queenslanders allowed to carry ceremonial knives in school after court ruling’ (Roberts, 2023)
Image: Marygrace_97/Shutterstock.com
Figure 4 The kirpan is a ceremonial Sikh knife that may need to be carried by members of the
religion according to its practices
No discrimination based on your state

of residence 4.1.11.1.5
According to section 117 of the Constitution, Australian Citizens of ‘any State, shall CONSTITUTION
not be subject in any other State to any disability or discrimination which would
not be equally applicable to [them] if [they] were... resident in such other State’. Section 117
In practice, this means a state cannot create or apply laws in a discriminatory
manner based on an individual’s state of residence. For example, it would be invalid
according to s 117 to pass a Victorian law that specifically prohibits South Australian
residents from travelling to Victoria without paying an extra $5,000 to enter
the state.

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Limitations of the right to protection from discrimination based on one’s state

of residence:
• Some laws that legislate upon residents of different states in a restrictive manner
7K THEORY
may be acceptable. For example, a Victorian law that prevents residents of NSW
from voting in Victorian elections would not breach s 117.
LEGAL CASE
Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463

Facts
Ms Goryl, the plaintiff, was a New South Wales (NSW) resident who was injured whilst
travelling on a tourist bus in NSW after the bus veered off the road and collided with a
LEGISLATION paddock fence. The tourist bus was registered in Queensland under the Motor Vehicles
Insurance Act 1936 (Qld). Ms Goryl commenced legal action against the owner of the
Motor Vehicles Insurance Act 1936 (Qld) vehicle, Greyhound Australia Pty Ltd. She sought damages for her injuries from Suncorp
Insurance and Finance and the owner of the bus in Queensland.
Legal issue
Under s 20 of the Motor Vehicles Insurance Act 1936 (Qld), a person injured in
connection with a Queensland motor vehicle could not recover more damages in
Queensland than what would be recoverable in the injured party’s principal state of
residence. Therefore, Ms Goryl would be limited to claiming damages recoverable
under NSW’s law considering NSW was her primary state of residence. The amount Ms
Goryl could recover under the law of NSW was less than the amount she was entitled
to under the Queensland law governing damages, as different limitations to damages
applied in NSW. Therefore, Ms Goryl argued the law breached s 117 of the Constitution
as it discriminated against her based on her state of residence by preventing her from
obtaining the damages she was entitled to under Queensland law, solely on the basis of
being a NSW resident.
Decision
The majority held that the Motor Vehicles Insurance Act 1936 (Qld) imposed a disability
and discrimination on non-Queensland residents on the basis of their state of residence
and was, therefore, invalid under s 117 of the Constitution. In Dawson and Toohey JJ’s
joint judgment, the Justices found the Act resulted in ‘a non-resident being afforded
under Queensland law different and less advantageous treatment than she would be
afforded if she were a resident of Queensland’. Thus, s 117 applied to invalidate the law
so Ms Goryl was entitled to recover a full amount of damages in Queensland, without
restriction from NSW’s limitations on damages.
LEGAL VOCABULARY Significance
Ultra vires a Latin term meaning This case affirmed that a wide interpretation of s 117 of the Constitution should be adopted.
‘beyond the powers’; used in law to This means state laws cannot discriminate or impose a disability against other states’
describe an act by a government body residents unless such laws are required to maintain the structure of the federal system.
or corporation that requires legal For example, voting laws can discriminate against another state’s residents, in that a NSW
authority but is done without it. resident cannot vote in Victorian elections, as such restrictions are necessary.
Beach house battle

Kristen is a NSW resident who wishes to purchase a beach house in Victoria’s Mornington
Peninsula. However, when inspecting the properties, the real estate agent informs her that
the Victorian Parliament has recently passed a law that prohibits interstate residents from
purchasing only one property, meaning Kristen would need to purchase two or more beach
houses at the same time if she wishes to acquire property in Victoria. Enraged by this law,
Kristen takes the matter to the High Court, suing the Victorian Government for breaching
s 117 of the Australian Constitution. Kristen was successful in her case and the High Court
deemed that the Victorian law breached s 117 of the Constitution as it discriminated against
residents of other states and prohibited them from purchasing one property merely because
Figure 5 Kristen sued the Victorian
Government for discriminatory property of their state of residence. Therefore, the law was declared ‘ultra vires’ and Kristen was able
purchasing laws to purchase the home in Mornington without having to purchase a second.

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Five express rights, afforded to every Australian citizen, are explicitly stated and An important key skill in Area of
7K THEORY
entrenched in the Constitution. These rights are:
is ‘evaluate the means by which the
• acquisition of property on ‘just terms’ Australian Constitution acts as a
• trial by jury for Commonwealth indictable offences check on parliament in law-making’.
The express protection of rights is one
• interstate trade and commerce of these means. Therefore, this table
• freedom of religion showing strengths and limitations of
the express protection of rights as a
• no discrimination based on your state of residence.
check on parliament in law-making
can help you complete this evaluation.
Table 1 Evaluating the express protection of rights as a check on parliament
in law-making
• Express rights are enshrined in the • The High Court has interpreted
Constitution and can only be modified some of the express rights narrowly.
or removed through a referendum, Therefore, certain laws can be
meaning they cannot be changed created by parliament that may
by parliament alone. A referendum appear to breach an express right.
is a national vote that requires the However, the court can still find
majority of Australians to agree such a law to be valid.
with the proposed change to the • There is no mechanism preventing
Constitution, as well as a majority parliament from passing laws that
of people in the majority of states. are constitutionally invalid or breach
• Express rights are fully enforceable the express rights in the first place.
by the High Court, meaning if Therefore, laws can be established
legislation is created that breaches that infringe on express rights
an express right, an individual and will be enforced until a case is
with standing can take the case brought before the High Court, where
to the High Court, where it may be the Act may be deemed invalid.
deemed invalid, otherwise known • In order to challenge a law in the High
as ‘ultra vires’. Court, a case must be brought by an
• The High Court is independent individual with standing. Considering
of the executive and legislature, this requirement, in addition to the
meaning it is not politically affiliated cost and time-consuming nature
with any party and can rule against of initiating legal action, legislation
a law breaching an express right breaching one of the express rights
even if breaching the right is desired may continue to remain in force,
by parliament. preventing parliament’s law-making
powers from being checked.
• Relatively few rights are protected
by and entrenched in the Constitution
as there are only five express rights.
This means there are no significant
limits on parliamentary law-making
in regards to legislating on the core
rights of each citizen, and there are
few rights that are constitutionally
protected.
• Given a referendum is required
to add new express rights to the
Constitution, it is unlikely more rights
will be introduced to further limit
parliament’s law-making powers,
as referendums are very costly and
time-consuming.

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7K Questions
7K QUESTIONS

Question 1
In Australia, there are five express rights that are constitutionally entrenched.
A. True
B. False
Question 2
Senator Rodrigo believes the express right to a trial by jury for Commonwealth indictable offences should
be extended to cover the right to a trial by jury for any Commonwealth summary offence. She believes it will
be simple to amend and can be done by passing a bill in parliament.
Which of the following statements is correct in relation to Senator Rodrigo?
A. Ms Rodrigo has the power to introduce bills and therefore, can change the wording of the Constitution.
B. As express rights are protected by statutes they can be amended through the usual process of
amending a law.
C. The wording of the Constitution, and hence the express rights, cannot be modified without a referendum
which would require the amendment to occur by a bill being passed in parliament, and then put to the
Australian people to vote on.
D. Senator Rodrigo does not sit in the House of Representatives and therefore, cannot introduce a bill to change.
Question 3
limited free inapplicable applicable
According to section 92 of the Constitution, ‘trade, commerce, and intercourse among the States, whether by means of
internal carriage or ocean navigation, shall be absolutely ’. On the other hand, according to section 117
of the Constitution, Australian Citizens of ‘any State, shall not be subject in any other State to any disability or discrimination
which would not be equally to [them] if [they] were... resident in such other State’.
Question 4
Which of the following statements are correct about the express right of freedom of religion?
A. The express right to freedom of religion enables the Commonwealth Parliament and state parliaments
to pass laws that mandate religious practices in all work industries.
B. Commonwealth laws restricting religious practice are prohibited according to s 116.
C. An individual cannot be discriminated against by the Commonwealth Parliament based on their
association with a religion.
D. An individual cannot be subject to a religious test in order to qualify for a position in office or as a public
servant under the Commonwealth Parliament.
Question 5
Nora has received a letter from the government stating that her property will be acquired by the government
and demolished as part of a new airport construction project. According to s 51(xxxi), in this scenario,
Nora is entitled to:
A. nothing, as the government has the ultimate power to obtain any property it wishes if it is in the interest
of the broader community.
B. 50% compensation of the property’s value and a new house in another suburb.
C. ‘just terms’, meaning the Commonwealth Parliament must provide fair compensation for taking
her property.

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Question 6
If the Commonwealth Parliament passes a law that infringes upon an express right, it can only be deemed
7K QUESTIONS
invalid if:
A. it is challenged in the High Court by an individual with standing.
B. a Justice in the High Court notices the law infringes upon the express rights.
C. a referendum is held and the majority of the nation agrees the Commonwealth Parliament has breached
the express rights.
Preparing for exams

Standard exam-style
Outline one express right entrenched in the Australian Constitution.
Explain how the express protection of rights acts as a check on parliament in law-making.
It is the year 2056, and Jorja is a South Australia resident who has applied for a job in Victoria. She has been
told she has been successful and can begin the position in a month’s time. However, in order to begin her
employment, Jorja’s employer has told her she must pay $500 to the state, as per the newly introduced
Interstate Employee Fee Act 2056 (Vic).
Would the Interstate Employee Fee Act 2056 be valid? Justify your answer.
Extended response
Question 10
Tick the box to indicate whether the following statements are strengths or limitations of the express rights
as a constitutional check on parliamentary law-making.

I. Relatively few rights are protected by and entrenched in the Constitution as there are only
five express rights. This means there are no significant limits on parliament in law-making
with regard to legislating on the core rights of each citizen, and there are few rights that are
constitutionally protected.
II. Express rights are enshrined in the Constitution and can only be modified or removed through
a referendum, meaning they cannot be changed by parliament alone.
III. There is no mechanism preventing parliament from passing laws that are constitutionally
invalid or breach the express rights in the first place. Therefore, laws can be established that
infringe on express rights and will be enforced until a case is brought before the High Court
where the Act can be deemed invalid.
IV. In order to challenge a law in the High Court, a case needs to be brought by an individual with
standing. Considering this requirement, in addition to the cost and time-consuming nature of
initiating legal action, legislation breaching one of the express rights may continue to remain
in force, preventing parliament’s law-making powers from being checked.
V. Express rights are fully enforceable by the High Court, meaning if legislation is created that
breaches an express right, an individual with standing can take the case to the High Court
where the legislation may be deemed invalid, otherwise known as ‘ultra vires’.

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Evaluate the express protection of rights as one way in which the Australian Constitution acts as a check
7K QUESTIONS
on parliament in law-making.
A new law, Mandatory Religion Classes Act 2075 (Cth), has been passed by the Commonwealth Parliament
and requires all public high schools to integrate religion classes that teach students about a new emerging
religion known as ‘Edroloism’.
Jacey is a VCE 3/4 Legal Studies student attending a public high school and believes the Commonwealth
Parliament has breached its law-making powers by forcing students to learn about a certain religion. She
believes s 116 of the Constitution ensures the right to freedom of religion and therefore, the Commonwealth
law should be deemed invalid.
Question 12
Tick the box to indicate whether the following statements are strengths or limitations of the Constitution
in acting as a restriction on the Commonwealth Parliament’s ability to make laws about religion.

I. The right to freedom of religion, as an express right, is fully enforceable by the High Court.
Therefore, if an individual with standing, like Jacey, takes the case to the High Court, the
legislation may be deemed invalid.
II. The High Court is independent of the executive and legislature. This means it can deem the
Mandatory Religion Classes Act 2075 (Cth) ultra vires, even if the majority of parliament
wishes to enforce it.
III. There is no mechanism preventing parliament from passing laws that are constitutionally invalid
in the first place. Therefore, the Mandatory Religion Classes Act 2075 (Cth) has been passed,
despite infringing on an express right, and will continue to operate until it is deemed invalid by the
High Court.
IV. In order to challenge a law in the High Court, a case needs to be brought forward by an individual
with standing. Though Jacey can prove she has a ‘special interest’ in the case, as she is directly
impacted by the legislation as a high school student, there are significant cost and time factors
associated with bringing a case to court. Therefore, if she does not have the means to take the
case to court, the legislation will remain in force preventing parliament’s law-making powers
from being checked.
With reference to the scenario, discuss the extent to which the Constitution can restrict the Commonwealth
Parliament’s ability to make laws on religion that may infringe upon the express right to freedom of religion.

Ceci has been charged with murder in Victoria under the Crimes Act 1958 (Vic) and has pleaded not guilty,
therefore they will be tried for their offence in the Supreme Court of Victoria. They believe they have the right
to a trial by jury because it is an express right entrenched in the Constitution.
a. Explain whether Ceci is correct about having the right to a trial by jury. 3 MARKS
b. Describe two roles of the jury in Ceci’s case. 4 MARKS

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8
CHAPTER 8
The Victorian courts and the High Court
in law-making
8A Statutory interpretation The Victorian courts and the High Court in law-making
• the reasons for, and effects of, statutory interpretation
8B The doctrine of precedent
• features of the doctrine of precedent including binding
8C Courts’ ability to make law precedent, persuasive precedent, and the reversing,
– judicial conservatism and activism overruling, distinguishing, and disapproving of precedent
8D C
ourts’ ability to make law – costs, time, and the • factors that affect the ability of courts to make law,
requirement for standing including:
– the doctrine of precedent
8E he relationship between courts and parliament
T – judicial conservatism and judicial activism
in law-making
– costs and time in bringing a case to court
– the requirement for standing.
Image: Greg Brave/Shutterstock.com
• features of the relationship between courts and
parliament in law-making, including:
– the supremacy of parliament
– the ability of courts to influence parliament
– the codification of common law
– the abrogation of common law.
353
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8A Statutory interpretation
• the reasons for, and effects of, statutory interpretation
8A 8B 8C 8D 8E
Image: clkraus/Shutterstock.com
‘The panda eats shoots and leaves. 4.1.12.1 4.1.12.2 4.1.12.3

The panda eats, shoots and leaves. Statutory Reasons for statutory Effects of statutory
The panda eats shoots, and leaves.’ interpretation interpretation interpretation
—Lynne Truss (English novelist,
broadcaster, and journalist, 2003) 4.1.12.2.1 The specific 4.1.12.3.1 Creation of
meaning precedent
Words and their meaning can change of words
due to punctuation, context, and reader 4.1.12.3.2 Broadening
interpretation. Therefore, it is important 4.1.12.2.2 The changing and narrowing
nature of words statutes
that laws are written in a clear manner
so that they are not open to unreasonable 4.1.12.2.3 Unforeseen 4.1.12.3.3 Prompting
interpretations that change the legislation’s circumstances legislative
intended meaning. change
Lesson introduction
Parliament makes laws ‘in futuro’, meaning laws are created for the purpose of
applying to future events. The main role of the courts is to settle legal disputes
by interpreting existing legislation and applying it to the facts of the case before
them. In doing so, judges can give meaning to words in legislation. Whilst statutes
often provide definitions, some words remain ambiguous and subject to evolving
meanings. Therefore, judges must determine the meaning of these ambiguous
phrases or words in statutes and apply them to the case before them.
Statutory interpretation 4.1.12.1

Statutory interpretation occurs when the courts interpret and apply legislation to
KEY TERM
the case presented before them. When determining cases, the courts may be required
Statutory interpretation a process to clarify the meaning of legislation in order to resolve disputes and provide justice.
whereby the courts give meaning to When judges undertake this interpretation, an area of law may be inadvertently
the words in legislation when applying developed, and courts can continue to interpret these words in legislation over time
the legislation to a case.
to modify established areas of law. A court’s interpretation of words and phrases
in legislation forms a precedent, a principle of law that can be applied in similar
LEGAL VOCABULARY
cases in the future. However, judges cannot choose which laws to interpret. Rather,
Precedent a legal principle or decision
a person with standing must bring a case before the court which requires legislation
established by a court in a previous
to be interpreted to enable the judge to apply it.
case that is used as a guide or authority
in subsequent cases with similar facts
or legal issues.
Standing the requirement that,
in order to bring a case to court,
an individual or group must be
affected by, or have a special interest
in, the issues involved in the case.
354 CHAPTER 8: The Victorian courts and the High Court in law-making
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HYPOTHETICAL SCENARIO LESSON LINK
What does ‘use’ really mean? You will learn more about precedent
8A THEORY
in 8B The doctrine of precedent.
Alex has been charged with breaking a law by ‘using’ a Quantum Translocator, which is
a teleportation device, without a permit. The specific provision of the Act that he has
been accused of contravening states:
‘any person who uses a Quantum Translocator without proper authorisation USEFUL TIP
shall be subject to fines and imprisonment’. The terms ‘statute’, ‘Act’, and
Judges must determine the meaning of the word ‘uses’ as Alex alleges that he never ‘legislation’ all refer to laws
actually activated the device, he merely possessed it. Therefore, the judges need made by parliament. They are
to consider the plain language of the statute and examine its surrounding context, interchangeable terms.
legislative history, and the purpose behind the enactment of the law.
Some judges argue that ‘uses’ should be interpreted broadly, encompassing the mere
possession and intent to utilise the device. On the other hand, opposing judges adopt
a narrower interpretation, contending that ‘uses’ should be restricted to the physical
activation and transportation function of the Quantum Translocator.
Ultimately, the judges rule in favour of the narrower interpretation, concluding that for
someone to be deemed to have ‘used’ a Quantum Translocator, they must have actively
triggered its transportation function. This decision sets a precedent for future cases
involving Quantum Translocators.
Reasons for statutory interpretation 4.1.12.2

Judges interpret statutes to apply the legislation to resolve the case before them.
By adding to or clarifying the meaning of ambiguous words or phrases in the statute
through their statutory interpretation, judges may consequently resolve any drafting
issues that exist in the legislation. The courts’ interpretation often serves to clarify:
• the specific meaning of words
• the changing nature of words
• unforeseen circumstances.
The specific meaning of words 4.1.12.2.1

Judges may be required to interpret the specific meaning of words or phrases to
identify the scope of the statute and determine whether it extends to certain areas.
Where words or phrases are not defined in the legislation, the court may add
meaning to the words and phrases of the Act through their interpretation.
LEGAL CASE
Deing v Tarola [1993] 2 VR 163

Facts
Deing was wearing a belt with raised metal studs and was arrested, charged, and found
guilty in the Magistrates’ Court for possessing a ‘regulated weapon’. Deing appealed
the conviction in the Supreme Court.
Legal issue
Deing was charged under s 6 of the Control of Weapons Act 1990 (Vic), which states LEGISLATION
that it is illegal to ‘possess, carry or use any regulated weapon without lawful excuse’.
Section 5 of the Act outlined a list of weapons that are considered ‘regulated’. The court Control of Weapons Act 1990 (Vic)
had to interpret the words ‘regulated weapon’, as written in the Control of Weapons Act
1990 (Vic), and determine if studded belts were included in that category.
Decision USEFUL TIP
The term ‘regulated weapon’ is a broad term covering a wide range of items. Justice When providing reasons for statutory
Beach determined that a ‘regulated weapon’ should be defined as anything that is interpretation, you need to provide a full
‘not commonly used for any other purpose than as a weapon’. response. It is not enough to mention
that ‘judges need to clarify the specific
Continues →
meaning of words’. A brief example,
such as mentioning Deing v Tarola or
the ‘Studded Belt Case’, is one way
of strengthening your answer.

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LEGAL CASE
Deing v Tarola [1993] 2 VR 163 – Continued

8A THEORY
Significance
Deing’s belt was found not to fall within the definition of a weapon and his conviction
was overturned. The judge narrowed the definition of ‘weapon’ by excluding items,
such as studded belts, thus clarifying the specific meaning of the words in the Act.
Image: Bussakorn Ewesakul/Shutterstock.com

Figure 1 The case of Deing v Tarola found a studded belt did not constitute a ‘weapon’
The changing nature of words 4.1.12.2.2

As society progresses, the meaning of words and how they are used reflects these
changes. Judges may interpret the meaning of words to align with society’s values.
LEGAL CASE
to discrimination based on gender.
Attorney-General (Cth) v Kevin and Jennifer (2003) 172 FLR 300
Facts
Kevin was born biologically female but identified as a male. As an adult, he underwent
gender-affirming surgery. Kevin married Jennifer in 1999 and applied for a declaration
of the validity of their marriage.
Legal issue
The marriage was challenged by the Attorney-General who argued Kevin was not a man
LEGISLATION for the purpose of the definition of a marriage. At the time the Marriage Act 1958 (Vic)
was written, ‘marriage’ was defined as the ‘union of a man and a woman’, but the Act
Marriage Act 1958 (Vic) did not include a definition of ‘man’. The Family Court was therefore asked to decide
whether Kevin was legally a ‘man’ at the time of the marriage. That is, the court had
to assess what criteria should be applied in determining whether a person is a ‘man’
or a ‘woman’ for the purpose of the law of marriage.
Decision
The Family Court held the marriage was valid as Kevin was considered a man in the
everyday sense.
Significance
The court determined the word ‘man’ should be given a contemporary, normal,
and everyday meaning, which in the 21st century was held to include those who
are transgender.
Image: Ink Drop/Shutterstock.com

Figure 2 The court declared transgender men fell within the definition of the term ‘man’
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Unforeseen circumstances 4.1.12.2.3

Laws are drafted with the intention to cover future legal issues. There are many
8A THEORY
instances where legislative drafters have not taken into account all possible
circumstances where the statute could apply. The court must interpret the
legislation and apply it to unforeseen circumstances that were not anticipated
by parliamentarians when drafting legislation.
HYPOTHETICAL SCENARIO USEFUL TIP

When considering reasons why courts
Uncharted laws of Chat GPT
interpret statutes, be mindful of a
Imagine a legal case that requires judges to apply an existing law to an unforeseen few common misconceptions. Judges
circumstance involving the widespread availability of ChatGPT, an advanced AI will not interpret a statute because
language model, to the general public. The case brings to light the need for judges society’s values change or because
to use statutory interpretation to address a situation that could not have been they have identified a need to narrow
anticipated at the time the law was enacted. or expand the meaning of words.
Rohan has been charged with copyright infringements after he published information Judges can only interpret laws relevant
developed by ChatGPT. The provision he was charged under criminalises the use to the case before them. They cannot
of ‘automated tools’. The law was intended to target software programs and automated create precedent of their own volition,
systems that facilitate criminal activities. rather, a person with standing must
The judges face the challenge of interpreting the law in light of the unforeseen bring a case before them.
circumstances presented by the existence of ChatGPT. They recognise that the
traditional application of the law to automated tools may not adequately address
the unique features and capabilities of this language model.
The court determined that whilst ChatGPT may have the potential for misuse,
the current language of the law does not clearly encompass or address its unique
characteristics. Consequently, it found that the charges against Rohan cannot
be criminalised under the existing statute.
Effects of statutory interpretation 4.1.12.3

Through statutory interpretation, judges give meaning to the words in legislation
and are able to resolve disputes in the cases before them. The interpretation of
legislation in a particular case can also have broader implications, including:
• the creation of precedent
• broadening the operation of a statute
• narrowing the operation of a statute
• prompting legislative change.
Creation of precedent 4.1.12.3.1

Judges’ interpretation of statutes establishes a precedent for the cases that follow.
By interpreting laws and making decisions about the meaning of words in legislation,
all future cases with similar material facts heard in the lower courts must abide by this
interpretation. This creates consistency between cases with similar facts and ensures
they are treated the same before the law.
High heels = High crime

Samantha was wearing high heels on her way to work and was charged with carrying
a ‘weapon’. The police officer who saw her wearing them declared ‘you are under arrest
for possessing a weapon’. The officer explained that reports of high heels being used
as weapons have led police to believe her heels could be dangerous.
Samantha’s case was heard in the Magistrates’ Court, where her lawyer cited the
precedent of Deing v Tarola and argued that, like a studded belt, high heels should not
Figure 3 The Magistrates’ Court utilised
be considered weapons. The court accepted this line of reasoning and ruled in Samantha’s precedent in order to determine if Samantha’s
favour, declaring that her high heels were not weapons. shoes were a weapon

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Broadening and narrowing statutes 4.1.12.3.2

When the courts interpret laws, they can broaden the meaning of legislation,
8A THEORY
thereby expanding its scope. This can result in the statute applying more frequently.
LEGAL CASE
Carr v State of Western Australia (2007) 232 CLR 138

Facts
Carr was suspected of armed robbery and was questioned by police. During the interview,
he made no admission of guilt. In the police cells, he admitted to participating in the
armed robbery. This was captured on the police station’s video surveillance and used
as evidence in Carr’s trial. He was found guilty and appealed unsuccessfully to the Western
Australia (WA) Court of Appeal, then appealed again to the High Court of Australia.
Legal issue
Section 570D(2) of WA’s Criminal Code requires that when a person is tried for a
serious offence, evidence of any admission of guilt can only be admissible evidence
if the admission is videotaped. In s 570D(1), ‘videotape’ is defined as ‘any videotape
on which an interview is recorded’. The word ‘interview’ is critical here. Carr argued
an ‘interview’ requires a degree of formality and a question-answer approach. He stated
the conversation in his cell was not an ‘interview’ as it lacked this formality.
Decision
The majority of justices in the High Court rejected Carr’s argument. The court defined
LEGAL VOCABULARY ‘interview’ as any conversation between police and a suspect, therefore the video
Admissible evidence evidence that recording of the conversation in the cell was admissible evidence in a trial and his
abides by the rules of procedure, that conviction was upheld.
is therefore allowed to be presented to Significance
the court.
This broad interpretation of ‘interview’ in this example of High Court statutory
interpretation means in future cases any video recording of a conversation between
police and a suspect will be admissible evidence, as long as new precedent is not
established to alter this.
The court can also narrow the meaning of provisions and restrict the scope of the
law through their interpretation.
LEGAL CASE
Palmer v State of Western Australia (2021) 272 CLR 505

Facts
In 2021, Clive Palmer took a case to the High Court in which he challenged the validity
of Western Australia’s border closures during the COVID-19 pandemic in 2020.
Legal issue
CONSTITUTION Palmer argued that the border closures violated s 92 of the Constitution, which
guarantees freedom of movement between states.
Section 92
Decision
The High Court Justices unanimously rejected Palmer’s argument, stating the border
closures were justified due to a legitimate purpose. They believed the restrictions on
movement were reasonably necessary given the circumstances of the pandemic.
Justice Gageler emphasised the ‘reasonable necessity’ of the lockdown measures,
whilst Justice Kiefel and Justice Keane concluded there were no effective alternatives
to general entry restrictions, which were necessary for public health and safety.
Significance
As a result of this case, the Justices provided a narrower interpretation of s 92 of the
Constitution, clarifying that it does not apply to border restrictions during a pandemic.
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Prompting legislative change 4.1.12.3.3

Parliament may amend legislation in response to statutory interpretation. If the
8A THEORY
courts interpret the law in a way that parliament disagrees with, they may decide
to amend the legislation in order to provide clarity and override the court decision.
Parliament may also wish to confirm a decision made by the courts and create
legislation to institutionalise the court’s decision.
LEGAL CASE
CONTENT WARNING Aboriginal and/or Torres Strait Islander readers should be aware
references to people who have passed.
Mabo v Queensland (No. 2) (The Mabo Case) (1992) 175 CLR
Facts
Before European settlement in 1788, it was believed that Australia was ‘terra nullius’,
meaning it was legally the ‘land of no-one’. This was a long-standing principle in Australia
until Eddie Mabo, an Indigenous activist from the Torres Strait Islands, among others,
argued the legal assumption of ‘terra nullius’ was incorrect as First Nations people had
lived on the land for tens of thousands of years prior to colonisation. Mabo claimed he
had ownership rights over the land in the Murray Islands, within the Torres Strait.
Legal issue
The issue was whether First Nations Australians had ‘native title’ to the land of Australia.
Decision
In 1992, the High Court held ‘terra nullius’ was a legal fiction and found that native title
could exist if it could be proved that:
• there is a strong connection between the people and the land.
• the Indigenous connection to the land had not been extinguished by a transaction
since European settlement, such as the land being bought and sold.
The High Court decided the law’s previous assumption that Australia was a ‘land of
no-one’ was racist and discriminatory.
Significance
As a result of this case, the court’s decision became part of Australian legislation.
The Native Title Act 1993 (Cth) was created by the Commonwealth Parliament in order LEGISLATION
to confirm the decision of the High Court.
Native Title Act 1993 (Cth)
Lesson summary
Statutory interpretation refers to the process of the courts giving meaning to the
USEFUL TIP
words in legislation when resolving a dispute.
Be sure to read the question carefully.
Reasons for statutory interpretation include: It is important not to confuse the
• clarifying the specific meaning of words ‘reasons for statutory interpretation’
with the ‘effects of statutory
• reflecting the changing nature of words
interpretation’. Think about ‘reasons
• applying legislation to unforeseen circumstances. for statutory interpretation’ meaning
the ‘why’ and ‘effects of statutory
Effects of statutory interpretation include:
interpretation’ as the ‘consequence’.
• creation of precedent
• broadening and narrowing statutes
• prompting legislative change.

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8A Questions
8A QUESTIONS

Question 1
Judges can interpret all statutes regardless of the case presented before them.
A. True
B. False
Question 2
Which of the following statements best describes why judges need to interpret legislation to reflect
society’s values?
A. The meaning of words never changes, but society’s views do. Therefore, judges may interpret the meaning
of words to reflect societal shifts.
B. Society’s values rarely change, so judges rarely need to change their interpretation of statutes.
C. As society progresses, the meaning of words and how they are used reflects these changes.
Judges may interpret the meaning of words in line with society’s values.
Question 3
Which of the following are not effects of statutory interpretation? (Select all that apply)
A. Broadening the application of laws.
B. Altering laws, as judges can change the current legislation.
C. Clarifying the meaning of words.
D. Narrowing the application of laws.
Question 4
in the future in futuro in futiem
Parliament makes laws , meaning laws are created that will apply to future events.
Question 5
One reason for statutory interpretation in the Deing v Tarola case was:
A. clarifying the specific meaning of words.
B. reflecting the changing nature of words.
C. applying legislation to unforeseen circumstances.
Question 6
When judges interpret statutes, parliament amends them accordingly.
A. True
B. False
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Preparing for exams
8A QUESTIONS
Standard exam-style
Explain one reason why a court may need to interpret a statute.
Lily has been charged with fraud after they utilised ChatGPT to impersonate their friend JT in order to
purchase a property in Melbourne. In their defence, Lily’s legal representation raised that the current fraud
statute required ‘human interference’ and, therefore, Lily’s use of ChatGPT as an impersonator of JT was not
fraud as no ‘human interference’ had occurred. The judges must determine if Lily actually ‘humanly interfered’,
as it is not defined in the legislation.
Explain why the phrase ‘human interference’ may require statutory interpretation.
Outline two effects of interpretation of statute by judges.
Finn was charged with armed robbery. Finn had nail clippers in their pocket, and the prosecution argues this
constitutes an ‘offensive weapon’.
Explain the reason and effect of statutory interpretation in Finn’s case.
Extended response
Question 11
Tick the box to indicate whether the following statements are strengths or limitations of statutory interpretation.

I. Judges are not elected and do not represent the people when interpreting statutes.
II. Judges can fill in the gaps in legislation and ensure it is tailored to the current societal standards.
III. Parliament has no obligation to consider the decisions made by judges when creating legislation.
IV. Judges can account for circumstances that drafters may not have foreseen.
In 1993, the Native Title Act 1993 (Cth) was created by the Commonwealth Parliament in response
to a ground breaking judgment by the High Court justices in the Mabo Case.
Discuss the extent to which statutory interpretation is an effective way to make law.

Explain the role of the judge with regard to statutory interpretation.

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8B The doctrine of precedent

• features of the doctrine of precedent including binding precedent, persuasive

precedent, and the reversing, overruling, distinguishing, and disapproving
of precedent
8A 8B 8C 8D 8E
Image: Konstantin Korobeinikov/Shutterstock.com
The doctrine of precedent is like a sturdy

bridge across a river of legal uncertainty. 4.1.13.1 The doctrine of precedent 4.1.13.4 Reversing a precedent
Each precedent laid down acts as a
supporting pillar, providing a solid 4.1.13.2 Binding precedent 4.1.13.5 Overruling a precedent
foundation for future cases. Just as a bridge
ensures safe passage across turbulent 4.1.13.3 Persuasive precedent 4.1.13.6 Distinguishing a precedent
waters, precedent guides the legal system,
offering stability and predictability. Every
4.1.13.7 Disapproving a precedent
new decision strengthens the structure,
forming a reliable path that upholds justice
and promotes consistency in the law.
Lesson introduction
The common law system is based upon the doctrine of precedent whereby courts
lower in the court hierarchy follow the decisions of the courts higher in the hierarchy
to provide consistency, predictability, and in turn, justice.
KEY TERM The doctrine of precedent 4.1.13.1

Doctrine of precedent a rule in which When adjudicating cases with similar circumstances, judges must adhere to the
judges must follow the reasons for doctrine of precedent and follow the decisions made by higher courts within the
decisions given by superior courts in same court hierarchy. The doctrine of precedent is based upon the principle of
the same court hierarchy when deciding
‘stare decisis’, meaning ‘to stand by what has been decided’. Therefore, cases with
a case before them with similar facts.
similar facts are decided in a similar manner to ensure consistency, predictability,
LEGAL VOCABULARY and justice. In order to uphold this principle, the courts are arranged in a hierarchy
according to their jurisdiction. Lower courts in the hierarchy must follow the
Stare decisis the legal principle to
stand by what has been decided and reasoning for decisions made by the higher courts in the same court hierarchy.
follow the decisions of previous cases. A judge’s written reasons for their decisions are divided into two parts:
Ratio decidendi a judge’s reason for
• Ratio decidendi, meaning ‘the reason for the decision’. This is the legal reason
a decision in a case, which establishes
a new legal precedent. for the decision. It is the binding part of the judgment, that is, the ratio is the
Obiter dictum a Latin term meaning ‘it principle of law that must be followed by courts lower in the hierarchy.
was said by the way’; refers to a judge’s • Obiter dictum, meaning ‘by the way’. These are comments made by the judge to
comments made in passing to provide provide context to the judgment or legal suggestions. This is the persuasive part
context to a legal decision. of the judgment, that is, it does not have to be followed, but can provide guiding
principles for judges in future cases.
LESSON LINKS
You learnt about court hierarchy in
criminal cases and 5C The Victorian
court hierarchy and civil disputes.
362 Chapter 8: The Victorian courts and the High Court in law-making
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Rocking the rules – from classrooms to society
8B THEORY
Michael rocks on his chair at school and Lauren reports Michael to her teacher, as she is No rocking!
worried about his safety. There are no firm rules about rocking on chairs in the classroom,
so the teacher decides to create a new rule that students are not allowed to rock on his
chair. Three days later, Lauren reports that another student, Scarlett, is rocking on her
chair, so the teacher advises Scarlett she is not permitted to do so.
In all future cases, the teacher should apply the same rules to all students, so they are
treated fairly. All students should be treated equally by the rules, and should know the
rule that they are not allowed to rock on the chairs. Just like in this classroom, laws within
Figure 1 Precedent provides consistency
society should be equally applied to all citizens, providing certainty and predictability and predictability as the law is applied equally
in the way cases are decided. to everyone
Binding precedent 4.1.13.2

Binding precedent is a previous court decision that lower courts within the same
KEY TERM
court hierarchy are obligated to abide by when the facts of a case are similar. If a
precedent is binding, a judge must follow it, regardless of whether they agree with Binding precedent legal reasoning
the legal reasoning behind the decision or not. This ensures that cases with similar of a higher court that must be followed
facts are heard in the same way, therefore providing predictability in the legal system. by all lower courts in the same court
hierarchy where the material facts
are similar.
Most superior High Court of Australia

Court House
County Court
Figure 2 The Victorian court hierarchy
USEFUL TIP
It is really important to correctly memorise the Victorian court hierarchy as some
questions may provide you with a case study and require you to indicate whether
the precedent will be persuasive or binding.
A common area of confusion is the Supreme Court of Victoria. The Victorian Supreme
Court is split into two parts: the Supreme Court – Trial Division and the Supreme Court –
Court of Appeal. The Court of Appeal sits above the Trial Division, therefore, the Supreme
Court- Trial Division must follow binding precedent from the Court of Appeal.
Persuasive precedent 4.1.13.3

Persuasive precedent refers to decisions that are not binding, but can be used as a
KEY TERM
tool to help judges determine an outcome for the case before them. When deciding
on a case, judges may look at precedents they are not required to follow to help Persuasive precedent legal reasoning
guide their decisions. If there is no law applicable to a particular case, the parties that can act as a guide for judges even
can utilise persuasive precedents to persuade the judge to make a judgment in their though they are not bound to follow it.
favour. For example, persuasive precedent can include:
• comments that are obiter dictum
• decisions made by the same court or courts at a lower level in the hierarchy
• decisions made by a court in a different hierarchy, such as NSW or England.

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DEEP DIVE
English law roots

8B THEORY
England’s legal system was brought to Australia due to Britain’s colonisation of Australia
since 1788, and therefore, Australia’s legal system is largely influenced by British systems
and laws. Even in modern law-making Australia has looked to Britain and its court decisions
to inform its own legal decisions, despite Australian judges not being bound by them.
For example, the ‘finders keepers’ rule from Parker v British Airways Board [1982] 1 QB 1004,
is a UK precedent that has been adopted into Australian law.
Parker, a passenger in an airline lounge, found a gold bracelet. They handed the bracelet to the
staff and asked to be contacted if the owner could not be found. Eventually, the airline sold
the bracelet and Parker sued them. The Court held that the airline did not show an intention
to control all items in the lounge, which meant the passenger had better rights to the bracelet
than the airline as he had claimed it before them.
Image: Michelle Bean/Shutterstock.com The principle employed in Parker v British Airways Board was adopted in Australian law in
Figure 3 Australian law stems from National Crime Authority v Flack (1998) 86 FCR 16, demonstrating how legal decisions from
English laws different countries can influence Australian judges and their decisions.
KEY TERM Reversing a precedent 4.1.13.4

Reversing a precedent an act whereby Reversing a precedent occurs when a case is appealed and the superior court
a superior court changes a precedent changes the precedent set by a lower court. As a result of reversing the precedent
set by a lower court in the same case
set by the lower court, a new precedent is established by the superior court and
on appeal.
must now be followed by all future cases.
LEGAL CASE
Google Inc v Australian Competition and Consumer Commission (ACCC) (2013)

249 CLR 435
Facts
When conducting a Google search, two types of search results appear: organic results, which
are based on relevance, and sponsored results, which companies pay for as advertisements.
In 2013, Google was tried in the Federal Court by the Australian Competition and Consumer
Commission (ACCC) after it claimed Google’s sponsored links were misleading consumers.
This is because businesses were able to pay to have their website links appear when a
consumer searched online for a competitor’s website. Google claimed the appearance of
sponsored links was determined by its AdWords program, a software that uses a keyword
algorithm to associate businesses and products with Google searches.
Legal issue
Image: Rawpixel.com/Shutterstock.com
The issue was whether Google should be held responsible for the misleading or deceptive
Figure 4 The High Court reversed the
decision that Google misled or deceived conduct that was created through the AdWords program.
customers through sponsored links Decision
The Federal Court initially found that Google was liable for misleading or deceptive
conduct as it had acted to mislead or deceive customers through its sponsored links.
However, Google appealed this decision in the High Court, which ultimately reversed
the outcome because Google did not actually author or endorse the sponsored links.
Significance
This case highlights the ability of superior courts to change the previous decisions made
by inferior courts. The High Court set a precedent in this case, and all other cases with
similar facts will therefore be decided in the same way in Australia. The original decision
from the Federal Court was reversed and therefore is not a precedent other courts are
bound to follow.
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Overruling a precedent 4.1.13.5

Overruling a precedent occurs when a superior court invalidates a previous
KEY TERM
8B THEORY
decision made by a lower court by setting a new precedent in a new case with
similar facts. Courts can also overrule their own past decisions. Overruling a precedent an act
whereby a superior court changes
a previous decision made by a lower
LEGAL CASE
court, when ruling on a different case.
Imbree v McNeilly [2008] 236 CLR 510
Facts
USEFUL TIP
In 1986, the High Court made a ruling in the case of Cook v Cook (1986) 162 CLA 376,
stating an inexperienced learner driver owed a lower standard of care to their instructor The difference between reversing and
compared to an experienced driver. overruling a precedent is that reversing
a precedent refers to a decision that
Legal issue
is changed on appeal in the same case.
In 2002, Imbree allowed McNeilly, a 16-year-old learner driver, to drive his car while he Contrastingly, overruling a precedent is
supervised from the front seat. An accident occurred, causing Imbree to suffer spinal when a different case is brought before
injuries. Imbree sued McNeilly, and both the original trial court and the appellate court the courts at a later date and they
upheld the principle established in Cook v Cook [1986]. Following this precedent, there change the precedent, set by a lower
was a reduction of the compensation awarded to Imbree on the grounds that McNeilly court or one of the same standing, that
owed a lower standard of care to Imbree as a learner driver. Imbree took the case to was established in an earlier case.
the High Court, however, believing McNeilly’s standard of care should not be lowered
simply due to his inexperience with driving.
Decision
USEFUL TIP
Following another appeal, the High Court overturned the ruling in Cook v Cook. The Court
held that learner drivers should be held to the same standard of care as all other road Be mindful of your use of terminology,
users. The reversal of the previous decision created a new precedent. especially concerning the word
‘binding’.
Significance
If something is ‘binding’ then by
The High Court’s decision in this case established a new principle of law, stating learner definition it cannot be avoided. For a
drivers should be held to the same standard of care as other drivers on the road. This precedent to be binding, the facts of
ruling overturned the previous understanding established in Cook v Cook, which had the previous case and the current case
stated that learner drivers owed a lower standard of care to their instructors. must be the same, or materially similar.
If the judge can distinguish between the
current case and the case in which the
precedent was established, then the
precedent is not binding on the case
at hand. To summarise, it is correct to
say judges can distinguish a precedent,
rather than judges ‘avoid a binding
precedent’.
Image: James Bowyer/Shutterstock.com

Figure 5 Learner drivers were held to the same standard of care as experienced drivers
Distinguishing a precedent 4.1.13.6

Distinguishing a precedent occurs when a lower court refrains from applying a prior
KEY TERMS
ruling. Since lower courts are bound by precedent where the facts of the case they
are hearing are similar to the case where the precedent was established, these lower Distinguishing a precedent an act
courts are only able to not abide by precedent by demonstrating the current case has whereby a lower court avoids applying
dissimilar facts compared to the case in which the precedent was established. a precedent by demonstrating that
the case before it has different
material facts to the case in which the
Disapproving a precedent 4.1.13.7 precedent was established

Disapproving a precedent an act
Disapproving a precedent occurs when a lower court acknowledges its disagreement whereby a lower court expresses its
or lack of approval towards a binding precedent, whilst still being obliged to follow it. disapproval of a precedent established
These expressions of disapproval are obiter dictum. Disapproving a precedent does not by a higher court through its written
judgment, but is still bound to follow it.
change it, it merely shows the judge deciding upon the present case does not agree.
If the judge is in a court lower in the hierarchy, they are still required to follow it.

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Lesson summary
• The doctrine of precedent describes the legal principle whereby judges apply the
8B QUESTIONS
legal reasoning of decisions made by superior courts, in the same court hierarchy,
to cases before them with similar material facts.
• There are two main types of precedent:
– binding precedent
– persuasive precedent.
• Judges are able to interpret past decisions and use them to inform current
decisions. However, they may be able to:
– create their own precedents by reversing or overruling precedent
– avoid abiding by past decisions by distinguishing precedent
– express their disapproval for a past decision by disapproving precedent.
8B Questions
Question 1
superior lower
The doctrine of precedent requires judges in courts to follow the reasons for the decisions given
by courts in the same court hierarchy when deciding on cases before them with similar material facts.
Question 2
The ratio decidendi is the legal reasoning for the decision of a case that must be followed by courts lower
in the same court hierarchy in cases with similar facts, whereas obiter dictum is legal reasoning that helps
the judge in a higher court reach a decision, but does not have to be followed. Rather, it can provide guiding
principles for judges in future cases.
A. True
B. False
Question 3
Tick the box to indicate whether each of the following statements refers to binding precedent
or persuasive precedent.
Statement Binding precedent Persuasive precedent

I. All lower courts in the same hierarchy must follow the ratio decidendi of superior
courts’ decisions in cases with similar material facts.
II. All courts can consider decisions from other court hierarchies to help guide
their decisions.
III. Even if the judge disagrees with the reasoning of a previous decision, they are
still bound to follow it.
IV. If the judge disagrees with the reasoning of a previous decision, they are not
bound to follow it.
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Question 4
Which of the following statements is correct?
8B QUESTIONS
A. A superior court can reverse a precedent set by a lower court in the hierarchy in the same case on appeal.
B. Overruling a precedent is when a superior court changes a previous decision made by a lower court
in a later case with different facts.
Question 5
Which of the following statements most accurately describes the concept of distinguishing a precedent?
A. Where the material facts of two cases are the same, but the judge decides to use persuasive precedent.
B. Where the facts are similar, but have material differences that allow the judge to avoid using precedent,
and enables them to make their own decision.
C. Where the material facts are so different that another precedent applies.
Question 6
Disapproving a precedent occurs when the judges:
A. decide not to use a precedent they disagree with.
B. disapprove of a precedent in the obiter dictum of the case they are deciding upon and do not use
the precedent.
C. disapprove of a precedent in the obiter dictum of the case they are deciding upon but are still bound
to follow it.
Question 7
Once a precedent has been set, it cannot be changed by any court and must be followed by lower courts
in all jurisdictions in future cases where material facts are similar.
A. True
B. False
Preparing for exams

Standard exam-style
Outline one reason why the Magistrates’ Court of Victoria may not be bound by a decision of the County
Court of Victoria.
Distinguish between binding precedent and persuasive precedent.
Priya is a famous actress who has been defamed online. A similar case has recently been heard in the Supreme
Court of Victoria – Court of Appeal in which the celebrity lost the case. Priya’s lawyers warn her that this recent
case has set a precedent where the decision is unlikely to be in her favour for her own case. Priya’s case is set
to be heard in the County Court of Victoria.
Explain one reason why the court may not be able to change the law in this case.

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Lily was convicted of murder in the Victorian Supreme Court – Trial Division and she appealed the decision
8B QUESTIONS
to the Supreme Court – Court of Appeal. The decision is overruled on appeal and the Supreme Court
– Court of Appeal explains it is bound to follow a decision from the House of Lords, a court in England.
A case with similar facts comes before the Supreme Court – Trial Division three years later. The Supreme
Court – Trial Division follows every part of the Supreme Court – Court of Appeal’s judgment as it is binding
precedent. It is bound by all parts of the judgment made by the Supreme Court – Court of Appeal, including
the obiter dictum of this decision.
Identify three errors in the scenario above and, for each error, explain the correct process or procedure that
Extended response
Question 12
Which of the following statements are correct about the doctrine of precedent? (Select all that apply)
A. An appellate court can reverse the decision of the original court when deciding on the same case.
B. Judges are only bound by persuasive precedent.
C. Judges are able to avoid being bound by precedent where they can distinguish the current facts in the
case they are deciding upon from the facts of the previous case that created the binding precedent.
D. Judges in a superior court can overrule a previous decision made by a lower court to avoid using precedent.
‘Judges are always bound to follow an existing precedent’.

‘The Victorian court hierarchy is an important part of the legal system. It allows the doctrine of precedent
to operate and it establishes the jurisdiction of courts.’
Outline one reason why a precedent established in the Victorian Supreme Court – Court of Appeal
may be followed in the Victorian Supreme Court – Trial Division.
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8C Courts’ ability to make law –

judicial conservatism and activism
• factors that affect the ability of courts to make law, including:

– judicial conservatism and judicial activism
– the requirement for standing
Image: Monkey Business Images/Shutterstock.com

8A 8B 8C 8D 8E Imagine your old legal studies teacher
retired and was replaced with a young, new
teacher. The new teacher is considering
whether or not to abolish the long-standing
4.1.14.1 4.1.14.2 4.1.14.3 rule that students who do not hand in their
The impact of the Judicial conservatism Judicial activism homework on time must stay after school
doctrine of precedent to complete it. She thinks this rule is unfair
and is considering making homework
optional. Will she act conservatively and
leave the rule as is, or progressively and
create a new, potentially controversial rule?
Lesson introduction
Whilst the main role of the courts is to apply the law and resolve cases before them,
judges may also be required to develop new laws when existing laws are not directly
applicable to the case at hand. Some judges may believe that a change in existing
common law is urgent and necessary, consequently making their own significant
and potentially controversial changes to such law. On the other hand, other judges
may avoid making such changes and leave law-making to parliament as it is the
supreme law-making body.
The impact of the doctrine

of precedent 4.1.14.1
As the doctrine of precedent requires judges to follow the decisions made by
KEY TERM
superior courts within the same court hierarchy where material facts are similar,
this legal principle impacts the court’s ability to create new laws. The primary role Doctrine of precedent a rule in which
of the courts is to resolve legal issues that arise out of both criminal cases and civil judges must follow the reasons for
disputes. They do this by interpreting legislation or common law and applying decisions given by superior courts in
the same court hierarchy when deciding
the legal principles to the matters before them, throughout which they must also
a case before them with similar facts.
follow any relevant principles established by existing precedent. Therefore, the
courts play an important role in law-making and will only create new laws when the
relevant legislation is unclear, or there is no common law applicable to the case they
are resolving. When making law, the doctrine of precedent can both enhance and LESSON LINK
restrict law-making by the courts. You learnt about the doctrine
of precedent in 8B The doctrine
of precedent.

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Table 1 Evaluating the effect of the doctrine of precedent on the ability of courts
LEGAL VOCABULARY
to make law
Standing the requirement that, in order
to bring a case to court, an individual Strengths Limitations
8C THEORY
or group must be affected by, or have • If no statute or common law exists, • In civil disputes, judges must wait
a special interest in, the issues involved or it is not clear how the law should for an individual with standing to
in the case. be applied to the case before them, bring a civil case to court before they
Ex post facto a Latin term meaning judges are able to create a precedent, can establish a new law. Similarly,
‘from a thing done afterwards’, which thereby developing the law. in the context of criminal law, the
refers to a situation in which a law is courts must wait for an accused to
• Judges on the same hierarchical level
created or amended in relation to an be brought to court before they can
or from superior courts can overrule
act, after that act has taken place. establish new law. Courts cannot
or reverse a decision made by lower
courts in the hierarchy, therefore develop laws whenever they wish.
developing the common law. • Judges make law ex post facto,
LESSON LINKS • Judges can distinguish a precedent meaning they make laws
by demonstrating the current case retrospectively only after a case
has different material facts to the is brought before them.
requirement for standing in 8D Courts’
ability to make law – costs, time, and case in which the precedent was • Courts can only develop new law
the requirement for standing. established. The court can then where no law currently exists,
You will learn more about the develop new precedents if necessary. or it is not clear how the law applies
supremacy of parliament and the • Courts can disapprove of a precedent to the case before them. This means
abrogation of common law in by expressing their objection to an the courts cannot make laws on
8E The relationship between courts existing precedent. These comments the basis that they disagree with
and parliament in law-making. may persuade parliament or existing legislation.
superior courts to create new laws in • Even if judges are in a position to
future cases. change the law, some may be hesitant
• The doctrine of precedent enables or unwilling to do so.
courts to fill in the gaps of existing • Whilst the courts can create new
legislation when interpreting statutes. laws, parliament can still pass
This allows judges to create and legislation that abrogates these laws
apply legal principles that specifically due to the supremacy of parliament.
address the matters in the case by
considering issues that have not been
accounted for by the legislation.
LEGAL CASE
Donoghue v Stevenson [1932] AC 562

Facts
May Donoghue met a friend at a cafe who ordered her a ginger beer. Mrs Donoghue was
pouring the ginger beer from a dark, opaque bottle into a glass. After she drank half the
contents of the bottle, a decomposed snail was poured into her glass. Diagnosed with
severe gastroenteritis and shock, she alleged the presence of the snail caused her illness.
As a result, Donoghue sued Mr Stevenson, the manufacturer of the ginger beer, seeking
compensation for her injuries.
Legal issue
The main issue for the court to determine was whether Mr Stevenson owed a duty of care
Image: Oleg Troino/Shutterstock.com
to Mrs Donoghue. At the time, there was no established legal precedent on a manufacturer’s
Figure 1 The UK ‘snail in the bottle’
case established one of the most
duty of care towards their consumers. The court had to decide whether a manufacturer was
famous precedents under a duty of care to the end users of its products.
Decision
The court ruled in favour of Mrs Donoghue, affirming that Mr Stevenson owed her, and
all other consumers of their ginger beer, a duty of care. This established the ‘neighbour
principle’, stating that one must owe a duty of care to those directly affected by their
actions. The court also established the principle of negligence, holding that breaching this
duty of care and causing harm to the person you owed a duty to makes an individual liable
to pay compensation to the injured party.
Significance
Although this case was heard in the United Kingdom, it demonstrates the ability of the
courts to make law where no principle of law previously existed. Many courts in Australia,
including Victorian courts, treated this legal principle as a persuasive precedent and chose
to adopt it into civil law. It now forms the foundation of modern negligence law and ensures
manufacturers remain liable for injuries resulting from their products.
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Judicial conservatism 4.1.14.2

Some judges may be reluctant to develop new laws as they believe it is parliament’s
KEY TERM
8C THEORY
responsibility to make laws as the supreme law-making body. This caution or restraint
adopted when approaching issues that may require establishing new precedents Judicial conservatism a judicial
or changes to common law is known as judicial conservatism. To avoid making approach where a judge is reluctant
substantial changes to the law, conservative judges tend to interpret legislation to develop new law as they feel it is
the role of parliament, as the elected
narrowly, focusing only on the case before them. Conservative judges aim to ensure
representative body, to do so.
they do not base their decisions on their own political views or opinions to make
controversial changes to the law. Instead, these judges demonstrate restraint and
develop case-specific judgments rather than creating precedent. Hence, judges
leave this responsibility of creating new laws to parliament. Furthermore, judicial USEFUL TIP
conservatism may result in judges in superior courts applying outdated precedents, It is important to provide explanations
even in circumstances when the court is not bound to follow these existing laws. in your answers. It is not enough to
mention the features of the doctrine of
Table 2 Evaluating the effect of judicial conservatism on the ability of courts to make law precedent, being reversing, overruling,
distinguishing, and disapproving.
Strengths Limitations Rather, you need to explain how the
doctrine of precedent can impact the
• Conservative judges show restraint • Conservative judges tend to interpret
ability of the courts to make law.
in making decisions that could the law narrowly, which restricts
significantly change the law, ensuring courts from making substantial
the law remains stable. changes to the law.
• Judicial conservatism prevents the • Judicial conservatism may result
LEGAL VOCABULARY
creation of controversial laws as in judges in superior courts Question of law an issue of law that
judges do not base their decisions on applying outdated precedents is resolved by a judge, often concerning
their own political views and opinions. rather than creating new ones, the interpretation and application
even in circumstances when the of legal principles or legislation.
• Judicial conservatism means courts
will not make radical and controversial court is not bound to follow the
changes in the law, reducing the existing precedent. This may
likelihood of appeals being made mean that relevant community
on a question of law, whereby the views and values are no longer
precedent may be reversed. reflected in the existing precedent.
LEGAL CASE
State Government Insurance Commission v Trigwell [1979] HCA 40

Facts
Mr and Mrs Trigwell were injured in a car accident when a vehicle collided with their
car after attempting to avoid a collision with sheep that had roamed onto the road.
The Trigwells sued the owners of the sheep, arguing they were negligent by not taking
substantial measures, such as putting up fencing, to prevent their sheep from escaping
onto the highway.
Legal issue
The High Court was required to determine whether it should follow an old common law
principle established in Searle v Wallbank [1947] AC 341. The principle asserted that
landowners are not responsible for damage caused by their livestock wandering off
their property and onto highways.
Decision
As the highest court in the hierarchy, the High Court had the ability to overrule the
old precedent and create new law, but chose not to and took a conservative approach.
The court upheld the existing precedent and deemed that the owners of the sheep
should not be held responsible for the damage caused by their livestock.
Significance
Justice Mason suggested in his judgment that if a change to this law is required, LEGISLATION
it should come from parliament, stating ‘the court is neither a legislature nor a law
reform agency. Its responsibility is to decide cases by applying the law to the facts Wrongs Act (Animals Straying on
as found’. This is an example of courts adopting a conservative approach in developing Highways) Act 1984 (Vic)
the law. The Victorian Parliament later passed the Wrongs Act (Animals Straying on
Highways) Act 1984 (Vic), abolishing the outdated common law principle.

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Judicial activism 4.1.14.3

Unlike judicial conservatism, judicial activism is an approach to law-making where
KEY TERM
8C THEORY
judges act progressively to consider a range of social and political factors when
Judicial activism a judicial approach interpreting the law and making decisions. Judges who take an activist approach
where a judge takes into account feel that, whilst they have a primary role in resolving cases before them, they also
numerous social and political factors have a responsibility to undertake a secondary role in developing common law,
when interpreting the law and
where it is necessary to do so.
deciding cases.
Judges may take an activist approach and change the law in areas where parliament
is hesitant to do so. Unlike parliament, judges are not elected by the people and are,
therefore, free from political influences. This means they can make controversial
changes in the law without needing to consider their prospects of re-election.
Therefore, judges may interpret the law in a way that protects the interests or
rights of minority groups. However, those who disapprove of judicial activism
argue that judges should not make substantial changes to the law as they are not
democratically elected to create laws on behalf of a nation’s people.
USEFUL TIP
Remember, judicial activism does not enable progressive judges to simply change
an area of law when they want to or solely according to their personal views and values.
The court must:
• wait for a case to come before them by a person with standing or by an accused
charged with a crime involving particular facts where the current laws does not
cover the issues at hand
• have no other law they can apply, or have no law that clearly applies to the case.
Table 3 Evaluating the effect of judicial activism on the ability of courts to make law
USEFUL TIP Strengths Limitations

An important key skill in Area of • Judges who take an activist approach • Courts must still wait for a relevant
Study 1 of Unit 4 VCE Legal Studies is feel their role extends beyond merely case before actively changing the law.
‘discuss the ability of parliament and applying legal principles to the case • Judges are not elected by the wider
the courts to make law.’ These tables before them and therefore, undertake community meaning that the common
throughout this lesson evaluating the a secondary role in developing law created may not actually reflect
effect of the doctrine of precedent, common law where necessary. the views and values of the majority.
judicial conservatism, and judicial
• Unlike parliament, judges are not • The High Court is the only court
activism on the ability of the courts to
make law can help you in discussing elected by the people and can, that is not bound by the doctrine
the court’s ability to make laws. therefore, make controversial of precedent. Therefore, courts
changes in the law without the lower than the High Court are still
‘Strengths’ of the effect refer to
fear of not being re-elected. restricted from making new law,
factors that can strongly influence
the courts’ ability to make law and/or • Judges can develop laws that put where there is existing precedent
the effectiveness of that law-making, pressure on parliament to make set by a higher court.
whereas ‘limitations’ are factors legislative changes. • If a judge, aside from justices in
that limit the influence of the factor • As the High Court is not bound by the High Court, seeks to radically
on law-making by parliament, or its any previous decisions, judges in this change the law, a party may appeal
effectiveness in law-making. court are able to engage in judicial this decision on the basis that it
activism and radically change the law. is an incorrect interpretation and
application of the law. This could
possibly result in the new precedent
being overruled, reversing the change.
• Parliament is the supreme law-making
body and can, therefore, abrogate any
radical common law created by the
courts as legislation will prevail over
such law.
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LEGAL CASE
CONTENT WARNING This example contains references to deceased persons
8C THEORY
of Aboriginal and/or Torres Strait Islander descent
Mabo v Queensland (No. 2) (The Mabo Case) (1992) 175 CLR 1
Facts
Before European settlement in 1788, it was believed Australia was ‘terra nullius’, meaning
it was legally the ‘land of no-one’. This was a long-standing principle in Australia until
Eddie Mabo, an Indigenous activist from the Torres Strait Islands, among others, argued
the legal assumption of ‘terra nullius’ was incorrect as First Nations peoples had lived on
the land for tens of thousands of years prior to colonisation. Mabo claimed First Nations
peoples had ownership rights over the land in the Murray Islands, within the Torres Strait.
Legal issue
The issue was whether Aboriginal and Torres Strait Islander peoples had ‘native title’
to the land of Australia. Native title is the legal recognition of the rights and interests
of First Nations people in the land and waters based on their traditional ownership
of the land which existed prior to British colonisation of Australia.
Decision
could exist if it could be proven that:
• there is a strong connection between the people and the land.
Significance
As a result of this case, the court’s decision was later codified and became part of
Australian legislation. The Native Title Act 1993 (Cth) was created by the Commonwealth LEGISLATION
Parliament in order to confirm the decision of the High Court.
The judges in this case took an activist approach as the judgment declaring ‘terra nullius’ Native Title Act 1993 (Cth)
as a legal fiction was progressive and regarded by many as controversial. The precedent
had a significant impact on Australian property law. Justice Brennan stated that the courts
‘cannot unquestionably adhere to earlier decisions if they lay down a rule that seriously
offends the values of justice and human rights..which are aspirations of the contemporary
Australian legal system’.
Lesson summary
Whilst the courts serve an important role in law-making, certain factors both
enhance and constrain their ability to do so, including:
• the doctrine of precedent, which requires judges to adhere to reasons given
by superior courts when deciding a case with similar facts.
• judicial conservatism, whereby judges only make minor changes to common law,
leaving it to parliament to make any significant changes to the law.
• judicial activism, whereby judges make radical changes to the law to reflect the
political and social progression of society.

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8C Questions
8C QUESTIONS

Question 1
The courts play an important role in law-making and will only make new common law when the current law
is unclear, or there is no law applicable to the dispute they are resolving.
A. True
B. False
Question 2
Tick the box to indicate whether the following statements are strengths or limitations of the effect of the
doctrine of precedent on the ability of the courts to make law.

I. Judges must wait for an individual with standing to bring a civil case to court before they can
make law. Alternatively, they must wait for an accused to be charged and brought to trial
before the law can be interpreted and potentially changed. Therefore, courts cannot develop
laws whenever they wish.
II. Courts can only develop new law where no law currently exists, or it is not clear how the law
may be applied to the case before them. This means the courts cannot make laws on the basis
that they disagree with existing legislation.
III. Judges from the same hierarchical level or superior courts can overrule or reverse a decision
from lower courts in the hierarchy, therefore developing common law.
IV. Judges can distinguish a precedent by demonstrating the current case has different material
facts to the case in which the precedent was established. The court can then develop new
precedent if necessary.
Question 3
Even if judges are able to establish a new law, they may take a conservative approach and feel it is not their
role to do so.
A. True
B. False
Question 4
conservatism activism
Judicial involves judges taking into account social and political factors to interpret the law broadly and,
in turn, create new legal principles. Alternatively, judicial involves judges interpreting the law narrowly
to avoid making controversial changes to the law.
Question 5
A possible way judicial activism limits the law-making powers of the courts is that:
A. courts must still wait for a relevant case before actively changing the law.
B. unlike parliament, judges are not elected by the people. Therefore, they can make controversial changes
in the law without the fear of not being re-elected.
C. justices in the High Court are able to engage in judicial activism and radically change the law as this court
is not bound by any previous decisions.
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Question 6
Which of the following statements describes ways judicial conservatism limits law-making?
8C QUESTIONS
A. Judicial conservatism may result in judges in superior courts applying outdated precedents rather than
creating new ones, even in circumstances where the court is not bound to follow the existing precedent.
B. Conservative judges tend to interpret the law narrowly, restricting courts from making substantial
changes to the law.
C. Judicial conservatism means courts will always make radical and controversial changes in the law,
reducing the likelihood of appeals being made on a question of law whereby the precedent may
be reversed.
Question 7
The courts always leave law-making to parliament as it is composed of elected representatives who are best
suited to make laws reflecting society’s views and values.
A. True
B. False
Preparing for exams

Standard exam-style
Explain how the doctrine of precedent influences the courts’ ability to make law.
Distinguish between judicial conservatism and judicial activism.
Nick was a DJ at a restaurant owned by Sam. While working at the restaurant, Nick claims he was constantly
criticised by Sam who said his DJ tracks were ‘less than adequate’ and defamed him on multiple social media
platforms. As a result, Nick has suffered emotional trauma and has lost work opportunities and is now suing
Sam in the Supreme Court of Victoria. There is an old-standing principle that impacts Nick’s case. Nick’s
lawyer has advised him that when resolving the dispute, the Supreme Court may act as both a law-maker
and a dispute resolver.
Explain one reason why the court may not change the law in this case.
Extended response
Question 11
courts to make law.

I. Judges are not elected by the people and may create laws that do not reflect the views and
values of the majority of society.
II. The doctrine of precedent enables courts to fill in any gaps in legislation when interpreting
statutes in order to resolve the case before them. When doing so, they can consider a range
of issues that have not been considered by parliament.
III. Judges must wait for an individual with standing to bring a case to court before they can create
law. Unlike parliament, courts cannot develop laws whenever they wish.
IV. Judges are not elected by the people and are free from political influences. This means they
can make progressive and controversial changes to the law without considering their prospects
of re-election.

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‘Judges are effective law-makers because, unlike parliament, they do not have to worry about being re-elected.’
8C QUESTIONS


CONTENT WARNING Aboriginal and Torres Strait Islander readers should be aware that some material in this textbook, and their associated
online resources, may be culturally sensitive. Examples of this include references to and/or images of people who have passed, inappropriate
language terms or distressing events.
In 1992, the High Court made a ruling in the Mabo Case which acknowledged the land rights of Aboriginal
and Torres Strait Islander peoples, including the right to assert their claims over their ancestral lands,
known as ‘native title’. This decision was significant because it overturned the longstanding common law
notion that Australia was terra nullius, or unowned land, prior to British colonisation. The outcome of the
High Court’s decision meant that the land rights of Aboriginal and Torres Strait Islander peoples were
acknowledged by Australia’s legal system.
Adapted from VCAA 2021 exam Section B Q1
Question 13
Which of the following statements are correct about how judicial activism is a strength of the law-making
process in relation to the Mabo judgment? (Select all that apply)
A. The judges in the Mabo Case were able to radically reform the law and develop the law in relation to the
land rights of Aboriginal and Torres Strait Islander peoples.
B. The High Court justices are unlikely to be re-elected as the decision in the Mabo Case was controversial
at the time and may not have reflected the views and values of the majority of society.
C. The Mabo Case illustrates how the courts are limited in their law-making ability and can only change
the law when a case is brought before them by an individual with standing, as Eddie Mabo did not
have standing.
D. As judges are free from political influence, the court could recognise ‘native title’ without being concerned
about whether it aligns with the views and values of the majority of society.
Referring to the Mabo judgment, analyse how judicial activism is a strength of the law-making process.
Provide two reasons in your response.

Describe how judicial conservatism upholds the principle of representative government.
Back to contents
8D Courts’ ability to make law – costs,

time, and the requirement for standing
• factors that affect the ability of courts to make law, including:

– judicial conservatism and judicial activism
– the requirement for standing
Image: Dean Drobot/Shutterstock.com
At school, if you witnessed two students

8A 8B 8C 8D 8E from different year levels arguing, both
of whom you did not know, it is unlikely
you would get involved. Not only do the
matters being discussed not concern you,
4.1.15.1 4.1.15.2 4.1.15.3 but why would you want to waste your time
Costs in bringing Time in bringing The requirement engaging in an argument that has nothing
a case to court a case to court for standing to do with you? Likewise, the courts will not
allow individuals with no connection to or
interest in a case to initiate legal proceedings,
ensuring their time and money are not
unnecessarily wasted.
Lesson introduction
In order for the courts to adjudicate a case and subsequently create law, they must
LESSON LINK
wait for a case to be brought before them. However, a party must be affected by, or
have a sufficient interest in, the matters involved in the case to bring it to court. In You learnt about the impact of costs and
addition, a party may not be able to afford, nor have the time to bring their case to time in civil disputes in 5K The impact
of costs and time – civil disputes.
court due to the costs and time involved in such proceedings. As a result, cases that
require clarifications or modifications of the law may not come before the courts as a
portion of society may be unable to initiate court proceedings. Naturally, when there
is no case before them, the courts cannot establish common law. Therefore, there are
systems in place to reduce the costs and time associated with bringing a case to court.
Costs in bringing a case to court 4.1.15.1

The costs involved in bringing a case to court can be a significant burden for
KEY TERM
many parties. Some of the costs involved in pursuing a matter through the courts
can include: Costs the amount of money,
• fees for legal representation, such as paying a solicitor and a barrister including court fees and fees for legal
representation, that has to be paid to
• court fees to commence and progress a court proceeding, such as court resolve a legal dispute.
filing fees
• jury fees if one or both of the parties request one
• some or all of the other parties’ fees, depending on the outcome of the case. LESSON LINKS
Whilst Victoria Legal Aid’s (VLA) financial support, advice, and low-cost legal You learnt about solicitors and
barristers in 5F Legal practitioners
representation is available to some, it is generally limited to criminal matters and is
in a civil dispute.
not an exhaustive resource. Therefore, a potential plaintiff may not be able to afford
You learnt about Victoria Legal Aid
or may be deterred by these costs, choosing to not initiate civil proceedings in the
(VLA) in 2B Victoria Legal Aid and
courts. As courts are only able to make law when a case is brought before them, this
community legal centres.
limits the courts’ ability to create new legal principles that can apply in future cases.
You learnt about the role of case
management in 5D Judges, magistrates,
and juries in a civil dispute.
Back to contents
WANT TO KNOW MORE?

When paying fees for legal representation, this is split into two parts:
8D THEORY
1. Fees for professional services

2. Other expenses, such as court filing fees.
You can find out more about how lawyers charge clients for their services by searching
‘How do lawyers charge for their services?’ and clicking the ‘Victorian Legal Services
Board’ (2022) webpage.
Table 1 Evaluating the effect of factors relating to costs on the ability of courts
to make law
• Victoria Legal Aid (VLA) is available • The eligibility criteria for VLA is
for some civil matters, meaning strict for civil cases, as it is generally
parties may be able to access limited to criminal matters and is not
resources that can assist them in an exhaustive resource. Therefore,
pursuing their case through the parties who are ineligible for VLA
courts. This can provide more assistance or legal representation
opportunities for the courts to may be unable to afford the costs
make law. involved in bringing their case
• Judges often give directions to to the courts, reducing the ability
parties, such as limiting the number of the courts to make law.
of witnesses or topics that they may • The reluctance of parties to pursue
be questioned about, with the aim a matter through the courts, due to
of reducing the costs associated the high costs, means there are fewer
with a trial. As a result, the time opportunities for judges to develop
a court proceeding takes is lessened, common law. Consequently, outdated
and hence, the costs are reduced. precedents can remain binding
Therefore, having a case heard in the courts.
in the courts may be more affordable
for parties, ultimately providing
greater opportunities for the courts
to make law.
CONTENT WARNING This example explores content that is sensitive in nature, relating
to anti-disability.
FlyMe Airlines
FlyMe Airlines escapes legal battle
Sally wants to bring a case against FlyMe Airlines as she believes the airlines’ travel
Figure 1 Sally cannot afford to initiate requirements, that apply to her, are discriminatory. The travel requirement in question is that
proceedings against FlyMe Airlines,
preventing law from being developed all passengers must be capable of reaching for and pulling down the overhead oxygen mask
in relation to this subject matter in the case of an emergency. If this is not possible, passengers must travel with a carer
or a person who can assist them. As she is travelling alone, FlyMe prevents Sally from
boarding the plane as she is disabled and would be unable to reach for the mask herself.
Sally sought legal representation for advice and her lawyer stated that the courts would likely
have to establish new legal principles in this case as no common law relevant to this issue
currently exists.
After receiving a bill of $2,000 for a three-hour meeting with her lawyer, Sally decided not
to initiate proceedings against FlyMe Airlines as she could not afford to pay these legal
fees. Therefore, as a result of these high legal costs, the courts would not hear this case
and would be unable to develop law in this area.
Back to contents
DEEP DIVE LESSON LINKS
High Court fees You learnt about administrative
8D THEORY
convenience in civil disputes in
As the most superior court in the hierarchy, the High Court has the power to establish
5C The Victorian court hierarchy
new precedents that are binding in all lower courts. In the High Court, different rates
and civil disputes.
apply to parties depending on whether they are:
You learnt about mediation in
• a publicly listed company, which pays the highest rate of fees 5B Methods of resolving civil disputes.
• a corporation or a public authority, which pays the next highest rate
• an individual, a small business, a not-for-profit association, or any other case,
which pays the lowest rate.
For example, as of 1 July 2023, the filing fees associated with an application for
constitutional or other writs are:
• $17,705 for a publicly listed company.
• $11,795 for parties falling under the ‘corporate’ category.
• $3,910 for parties falling under the ‘individuals or other’ category.
Adapted from ‘Party category information’ (High Court of Australia, n.d.) and ‘High Court of Australia (Fees)
Regulations 2022’ (High Court of Australia, n.d.)
USEFUL TIP
Try to always provide evidence to support your statements. Simply stating that the
court process is time-consuming or costly is not enough. Provide evidence of this and
explain why it is costly or time-consuming, such as due to the high costs of legal
representation or due to court delays. Try re-reading your answers and if you can ask
‘Why…?’ or ‘How…?’ you may need to add more!
Time in bringing a case to court 4.1.15.2

Pursuing a claim in court can be very time-consuming. There is a significant backlog
of cases in the justice system, which means individuals may have to wait months,
or even years, to have a matter heard before the courts. Other reasons for court
delays include:
• the significant amount of time it takes for parties to gather evidence and prepare
for a trial
• lengthy trial procedures, such as the time spent hearing the oral arguments
of legal practitioners and examining witnesses
• delay tactics by parties to avoid proceeding to trial.
Therefore, a potential litigant may be deterred by these various delays and choose
to not initiate proceedings in court. As courts are only able to make law when a case
is brought before them by an individual or group, this limits the courts’ ability
to create new legal principles and participate in law-making.
Table 2 Evaluating the effect of factors relating to time on the ability of courts
to make law
• Judges will often give directions • The reluctance of parties to pursue
to parties, such as limiting the a matter through the courts due
number of witnesses or topics they to the time it takes for a case to be
are questioned on, with the aim of resolved means there are fewer
reducing the length of a trial. As a opportunities for judges to develop
result, the parties may be able to have common law. Consequently, this may
their case heard in a timely manner, result in outdated and ineffective
providing more opportunities for precedents remaining binding as they
the courts to make law as a greater are not challenged for long durations.
number of cases per year can come
before the courts.
Continues →
Back to contents
Table 2 Continued
Enhances Restricts
8D THEORY
• The existence of the Victorian court • Judges in superior courts need to

hierarchy enables administrative wait for a case to come before them
convenience to be achieved, separating before they can develop law. The time
disputes across the courts, thereby taken to appeal to the higher courts
minimising delays. This permits the slows the development of the law as
courts to hear more cases each year, precedent is generally set on appeal.
likely increasing their capacity to • Some cases in higher courts can take
create or amend common law. months to be determined, resulting in
• For a bill to successfully pass through delays to the law being amended.
parliament and become a law, • Judges often give directions to parties
a proposed amendment to the law that encourage them to resolve the
must first be introduced, both houses dispute themselves outside of a
must support the law, and then royal courtroom, such as ordering parties
assent must be provided. Contrary to to attend mediation. Therefore, the
this, the courts’ law-making is instant. court’s ability to make laws is reduced
From when the decision is handed when parties reach an out-of-court
down to the parties, the precedent settlement.
is established and will then become
binding in future cases heard in lower
courts, or those of equal superiority,
in the same hierarchy.
The requirement for standing 4.1.15.3

In order for an individual or group to bring a case to court, they must have standing,
KEY TERM
meaning they are affected by, or have a special interest in, the issues involved in the
Standing the requirement that, in order case. It is based upon the legal principle of locus standi, meaning ‘place to stand’.
to bring a case to court, an individual The requirement for standing prevents individuals who have a general interest in the
or group must be affected by, or have case, and simply want to prove a certain point, from bringing a case to court. Generally,
a special interest in, the issues involved to establish standing, a party must demonstrate to the courts that one of the following
in the case.
situations apply:
LEGAL VOCABULARY • they are an aggrieved party, that is, a person whose interests are, or would be,
Locus standi a Latin term meaning adversely affected by the matters involved in the case.
‘place to stand’, which refers to the • their private rights have been directly affected by a legal issue.
right to initiate legal proceedings
• the action of another party and the infringement would continue unless the
in court.
court provided relief.
Alternatively, a party may have standing if it can demonstrate ‘special interest’ in a legal
matter. A ‘special interest’ can include:
• a public interest group challenging a government decision that could be a
public concern.
• a trade union challenging a government decision that may impact its members.
• a business challenging a government decision that may be favourable to a
commercial rival.
• a member of the public who challenges a government decision that directly
affects them.
The ‘special interest’ test was developed by the High Court. In the case of Australian
Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, a special interest
test was established, which does not need to involve legal or financial rights, but must
be more than a ‘mere intellectual or emotional concern’. The ‘special interest’ test
requires a party to show that their interests are adversely affected by the action
or decision of another party beyond that of any other member of the public.
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Digiwat’s dissatisfaction regarding data collection
8D THEORY
Suppose the Commonwealth Parliament passed new legislation regarding the collection
of electronic data that has meant customers’ metadata from phone calls, text messages,
emails, and internet activity will be stored indefinitely and be able to be accessed by the
government. Whilst exemptions have been made for some social media platforms, the
users’ data of DigiWat, a social media platform, will be collected and stored.
DigiWat feels this is unfair to its users and has challenged the validity of this legislation,
claiming it has a special interest in the outcome of the case. DigiWat asserted that
it is a commercial entity challenging a government decision that may be favourable
to a commercial rival. Furthermore, it feels its interest in this matter is beyond that
of any other member of the community.
Figure 2 DigiWat has standing to bring
DigiWat has demonstrated it has a ‘special interest’ in the case beyond that of any other a case to court by demonstrating it has a
member of the community. Therefore, a court would likely allow DigiWat to challenge ‘special interest’ in the case beyond that
the validity of the legislation in court. of any other member of the community
Table 3 Evaluating the effect of the requirement for standing on the ability of courts
USEFUL TIP
to make law
Strengths Limitations 1 of Unit 4 VCE Legal Studies is ‘discuss
the ability of parliament and the courts
• The requirement for standing reduces • The requirement for standing limits
to make law’. The tables throughout this
the number of frivolous claims being the ability of individuals with a
lesson evaluating the effect of costs,
made in court by individuals who general interest to change the law
time, and the requirement for standing
merely have a general interest in the as they will be unable to pursue the
on the ability of the courts to make law
matters involved in a case. In turn, matter through the courts. This can help you in discussing the courts’
this reduces delays in the court system slows the development of the law as ability to make law.
and allows more opportunities for individuals who do not have standing,
‘Strengths’ of the effect refer to
genuine cases to be pursued through but wish to bring a case to court,
factors that can strongly influence
the courts. cannot do so.
the courts’ ability to make law and/or
• Individuals with standing may still the effectiveness of that law-making,
be unable to bring their case to the whereas ‘limitations’ are factors
courts if they do not have the time that limit the influence of the factor
or money to do so. In these instances, on law-making by parliament, or its
the courts will miss out on law-making effectiveness in law-making.
opportunities.
LEGAL CASE
Kinglake Friends of Forest Inc. v VicForests (No 4) [2021] VSC 70

Facts
Kinglake Friends of the Forest Inc (Kinglake FF) initiated proceedings against VicForests in the
Supreme Court of Victoria. KingLake FF alleged that VicForests conducted unlawful timber
harvesting. It sought a declaration and permanent injunction against VicForests in relation
to timber harvesting, to stop cutting trees. One of the arguments put forth by VicForests was
that Kinglake FF did not have standing in the case. Kinglake FF organised a range of public
events, such as wildlife spotting nights, carried out five flora and fauna surveys in various
logging coupes, and lodged 18 breach reports regarding logging in forests.
Legal issue
The court was required to determine whether Kinglake FF had standing in the case.
Decision
The court held that Kinglake FF did have standing. It was satisfied that Kinglake FF had
a ‘special interest in the preservation of the native forests of Kinglake and the Central
Highlands, beyond a mere intellectual or emotional concern’. Additionally, this interest
was greater than that of the general public.
Significance
Image: Viktor Sergeevich/Shutterstock.com
As a result of satisfying the requirement for standing, Kinglake FF was able to bring its case Figure 3 Kinglake FF met the requirement for
against VicForests. Additionally, the court granted the injunction requested by Kinglake FF. standing in its case against VicForests
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Lesson summary
8D QUESTIONS
Whilst the courts are able to develop the law in cases before them by declaring
legislation invalid or by setting precedent where no law exists, or where the law
is unclear, there are factors that may prevent this from occurring:
• A potential plaintiff may be unable to bring their case to court due to the costs
and time involved in court proceedings. Consequently, the courts will not be able
to make law in such cases where parties cannot overcome these barriers.
• A potential plaintiff must have standing and cannot bring a claim to court out
of general interest or to prove a legal point. As a result, this reduces the number
of cases initiated in the courts, subsequently limiting the number of opportunities
for the courts to make law.
8D Questions
Question 1
A court’s ability to make law is restricted when:
A. a party has standing and has demonstrated they have a special interest in a legal matter.
B. a party is reluctant to pursue a matter through the courts due to the costs and delays.
Question 2
The costs involved in bringing a case to court do not affect the courts’ ability to make law as parties can apply
for assistance from Victoria Legal Aid.
A. True
B. False
Question 3
Which of the following statements are correct about how the costs and time in bringing a case to court may
restrict the ability of the courts to make law? (Select all that apply)
A. VLA is available for some civil matters, meaning parties may be able to pursue their case through the
courts. Thus, providing more opportunities for the courts to make law.
B. Judges in superior courts need to wait for a case to come before them before they can develop law.
The time taken to appeal to the higher courts slows the development of the law.
C. The eligibility criteria for VLA is strict for civil cases, as it is generally limited to criminal matters and is not
an exhaustive resource. Therefore, parties who are ineligible for VLA assistance or legal representation
may be unable to afford the costs involved in bringing their case to the courts, reducing the ability of the
courts to make law.
D. The existence of a Victorian court hierarchy enables administrative convenience to be achieved,
separating disputes across the hierarchy, thereby minimising delays. Therefore, the ability of the courts
to make law may increase as they can hear more cases.
Question 4
deterred encouraged
A potential party to a legal dispute may be by court delays, such as delays caused by lengthy trial
procedures. As a result, they may choose to not initiate proceedings in the court.
Back to contents
Question 5
Which of the following statements demonstrates that a party has standing? (Select all that apply)
8D QUESTIONS
A. The party’s interests are adversely affected by the matters involved in the case.
B. The party has a general interest in the issues involved in the case.
C. The party has a special interest in the legal matter by having more than a ‘mere intellectual
or emotional concern’.
D. The party wants to prove a point by bringing the case but is otherwise unrelated to the case’s issues.
E. The party’s private rights have been directly affected by a legal issue.
Question 6
courts to make law in relation to the requirement for standing.

I. The requirement for standing reduces the number of frivolous claims being made in court
by individuals who merely have a general interest in the matters involved in a case. In turn,
this reduces delays in the court system and allows more opportunities for genuine cases
to be pursued through the courts.
II. The requirement for standing limits the ability of individuals with a general interest in the case
to change the law as they are unable to pursue the matter through the courts.
III. Individuals with standing may still be unable to bring their case to court if they do not have
the time or money to do so.
Question 7
The costs and time required in bringing a case to court and the requirement of standing are the only factors
affecting the ability of the courts to make law.
A. True
B. False
Preparing for exams

Standard exam-style
Describe one way the costs and time associated with bringing a case to court may restrict the ability
of the courts to make law.
Explain why the requirement for standing is important for a court to be able to make law.
Kirby’s neighbour recently built a new boundary fence over two metres high, which caused Kirby to lose significant
sunlight in the part of her garden where she grows her vegetables. Whilst the neighbours indicated they had
a building permit from the local council, Kirby believes the council failed to consider her interests in its decision.
Describe the requirement for standing and advise Kirby as to whether she might be able to meet the standing
requirement.
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Ahmet is an unemployed university student who is studying constitutional law. The Commonwealth Parliament
8D QUESTIONS
passed the Religion Prohibition Act 2056 (Cth) which prohibits the exercise of religion in public places. Ahmet
believes this breaches s 116 of the Australian Constitution, which prevents the Commonwealth from making
laws that prohibit the free exercise of any religion. Ahmet is considering pursuing action in court against
the Commonwealth Parliament for this law, believing it violates his religious rights, but is unsure if he can
afford to do so.
Explain one reason why the court may not be able to change the law in Ahmet’s case.
Extended response
Alex purchased a can of Betty’s Beans from his local supermarket. Halfway through eating the beans,
he discovered a maggot and threw the tin out in disgust. Alex did not become sick from the incident
but still wants compensation for the trauma of finding a maggot in his beans. Currently, a precedent
established in the 1920s will apply in this case as it suggests if a person does not become sick from
a manufacturer’s error, the manufacturer can never be found liable for that error. Therefore, Betty’s Beans
would not be found liable for the maggot incident since Alex did not get sick. This is an outdated principle
yet no case relating to this precedent has come before the courts in over a century. Alex wants to bring
a case in the High Court against Betty’s Beans yet, as a university student, does not have the funds or time
to do so. He is considering reaching out to Victoria Legal Aid (VLA) for help.
Question 12
courts to make law in relation to Alex’s case.

I. If Alex is unable to bring the case to the High Court against Betty’s Beans due to the high costs
and time involved, the High Court will be unable to change the law and the outdated principle
will remain binding.
II. The eligibility criteria for VLA is strict for civil cases, as it is generally limited to criminal
matters and is not an exhaustive resource. Therefore, Alex may be ineligible and thus, unable
to bring his case to the High Court.
III. Judges often give directions to parties aimed at reducing the costs and time associated with
a trial, such as limiting the number of witnesses or topics that witnesses may be questioned on.
As a result, the amount of time Alex’s court proceedings take may be lessened and the costs may
be reduced.
IV. The existence of a Victorian court hierarchy enables administrative convenience, therefore
Alex’s case would be heard by a suitable court, minimising delays across the courts as different
courts are allocated cases according to their capacity and jurisdiction.
Referring to Alex’s case, discuss the extent to which courts are able to overcome the limitations of costs and
time in making laws.
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8D QUESTIONS
Question 14
Tick the box to indicate whether the following statements are strengths or limitations of the role of the
Victorian courts in law-making.

I. The Victorian courts have a role in setting precedents that allow them to establish legal
principles in circumstances where no statute or common law exists, or it is not clear how
the law should be applied to the case before them.
II. Judicial activism involves a judge considering social and political factors to interpret the law
broadly and, in turn, create new legal principles.
III. Judges make law ex post facto, meaning they make laws retrospectively only after a case
is brought before them.
IV. The requirement for standing means judges must wait for an individual who is affected by,
or has a special interest in, the issues involved in the case to bring it to court before they
can establish a new law.
V. Judicial conservatism is an approach to law-making where a judge is reluctant to develop

new law as they feel it is the role of parliament, as the elected representative body, to do so.
Evaluate the role of the Victorian courts in law-making.
Back to contents
8E The relationship between courts

and parliament in law-making
• features of the relationship between courts and parliament in law-making,

including:
– the supremacy of parliament
– the ability of courts to influence parliament
– the codification of common law
Image: Maxx-Studio/Shutterstock.com
– the abrogation of common law
In the study of chemistry, scientists combine
elements in order to create reactions as
specific elements, when under certain 8A 8B 8C 8D 8E
conditions, can create a unique product.
Consider the courts and parliament as major
elements of law-making in Australia. The
two have a unique relationship and can be 4.1.16.1 The supremacy of parliament 4.1.16.3 The codification of common law
thought of as forming a compound, like how
hydrogen and oxygen form H2O. Therefore,
4.1.16.2 The ability of courts 4.1.16.4 The abrogation of common law
when both the courts and parliament come to influence parliament
together to create law, there are certain
reactions and outcomes that occur.
Lesson introduction
The parliament and courts both have the ability to create law independently.
However, the legal system is constructed in a way that permits them to interact with
one another to reform laws and respond to changing societal conditions. At the centre
of the relationship is the notion of parliamentary supremacy, meaning the parliament
ultimately has the final say in law-making. Despite this, the courts can still have
considerable influence on this process.
Relationship between the courts and parliment in law-making
The supremacy The ability of courts

Codification Abrogation
of parliment to influence parliment
Figure 1 The relationship between courts and parliament in law-making
KEY TERM The supremacy of parliament 4.1.16.1

Parliamentary supremacy the legal Parliamentary supremacy refers to the fact that parliament is the superior
concept that parliament has the law-making body, meaning it can make and alter any law within its constitutional
freedom to make, amend, or abolish power. For example, parliament can override the laws of other law-making bodies,
laws, subject to limitations outlined
such as the courts.
in the Australian Constitution,
and is supreme over other arms of As parliament is comprised of members elected by the people, its primary role is
government, such as the executive to create legislation that reflects the views of society and promotes social cohesion.
and the judiciary. On the other hand, the primary role of the courts is to apply legislation to resolve
matters before them.
LEGAL VOCABULARY
Social cohesion the presence
of strong relationships and bonds
that unite society and encourage
cooperation, alongside an absence
of war and conflict.
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As a component of this supremacy, the functions of the courts are established by LEGISLATION
parliament. Chapter III of the Constitution establishes the High Court of Australia
as the most superior court in the country. All other courts were created by an Act County Court Act 1958 (Vic)
8E THEORY
of parliament. Each of these Acts establishes a particular court and sets out the Family Violence Protection Amendment
jurisdiction of this court. As an example, the County Court Act 1958 (Vic) establishes Act 2017 (Vic)
the County Court of Victoria and sets out the kinds of trials and appeals it can hear.
However, whilst parliament has a significant role in creating the courts and their
jurisdictions, it must also adhere to the limitations to its power protected by the LEGAL VOCABULARY
Constitution, such as the separation of powers at the Commonwealth level. This High Court of Australia the most
means the courts must be independent, impartial, and not forced to serve roles that superior court in Australia that hears
require political biases. Therefore, the courts cannot act as merely a servant of matters of federal significance and
parliament’s wishes. appeals from federal, state, and
territory courts.
As a result of parliament establishing the courts, aside from the High Court Jurisdiction the legal power of a court
of Australia, there is a strong connection between the two in law-making. or other authority to make decisions.
Separation of powers a principle
REAL WORLD EXAMPLE established by the Australian
Constitution that ensures the
Koori Court expansion legislative, executive, and judicial
powers remain separate.
The Koori Court is an alternative sentencing court that operates in Victoria, assisting
Aboriginal offenders who committed a criminal act in Victoria to access culturally Koori Court an alternative sentencing
appropriate outcomes in the criminal justice system. court for First Nations offenders who
have pleaded guilty to their criminal
Following the Victorian Royal Commission into Family Violence completed in 2015, one
offence, developed to take into
of the 227 recommendations was to ‘extend the jurisdiction of the Koori Magistrates’
account the different cultural values
and County Courts’. This recommendation meant the Koori Court would be able to hear
of Aboriginal and Torres Strait
offences where the accused has allegedly contravened a family violence intervention
Islander peoples.
order (FVIO).
In 2019, led by Court Services Victoria, the Department of Justice and Community
Safety consulted with the Aboriginal Justice Forum to develop the necessary
amendments to the Family Violence Protection Amendment Act 2017 (Vic) in order LESSON LINKS
to alter the jurisdiction of the Koori Court. In May 2019, in Mildura, the Koori Court You learnt about the separation of
division of the County Court heard its first hearings of FVIO contraventions. powers in 7J The Constitution as a
This process outlines how, ultimately, it is at the parliament’s discretion, as the supreme check on parliament – the separation
law-making body, to manage aspects of the courts, such as their jurisdiction. of powers.
Adapted from ‘Extend the jurisdiction of the Koori Magistrates and County Courts’ (State Government You learnt about the Koori Court in
of Victoria, 2020) 2I The impact of cultural differences
– criminal cases.
Image used with permission from Peter McManus of Yard Furniture

Figure 2 The Koori Court jurisdiction was expanded by the Victorian Parliament in 2019
The ability of courts

to influence parliament 4.1.16.2
When handing down their final judgment, judges and magistrates may make remarks
LEGAL VOCABULARY
in obiter dictum, which often involves sharing an opinion on the current state of
the law that applied to the case. These comments have proven to be influential on Obiter dictum a Latin term meaning
parliament as their aim is to create laws that suit the conditions of current-day ‘it was said by the way’; refers to a
judge’s comments made in passing
society and improve the justice system for the better. However, parliament is never
to provide context to a legal decision.
under any obligation to follow and adopt the issues raised in such statements.

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In some cases, a judge may indicate in their written judgment that they think the
LESSON LINKS common law established in this area should be changed, but leave it to parliament to
You learnt about judicial conservatism abrogate this common law. A court may also remark that a particular legal principle
8E THEORY
in 8C Courts’ ability to make law is confusing or poorly drafted when interpreting or applying a statute. In cases of
– judicial conservatism and activism.
judicial conservatism, judges choose to apply existing precedent instead of changing
You will learn more about the role this precedent, even if they believe the law should change, as they prefer to leave the
of the public in influencing law reform
law-making responsibility to parliament. However, when delivering their judgment,
in 9B Influences on law reform.
they may remark on their grievances with the statute or common law they applied
to the case at hand.
The courts may also indirectly influence parliament through a combination of both
their decisions and the public. If the courts hand down a particular decision that
highlights an issue with the current law, public unrest and community feedback
can then spur law-making and reform.
LEGAL CASE
State Government Insurance Commission v Trigwell (1979) 142 CLR 617

Facts
Members of the Trigwell family were seriously injured in a car accident caused by
roaming sheep on the road. They decided to commence legal action against the farmer
who owned the sheep.
Legal issue
The Trigwells argued the farmer who owned the sheep should be responsible for their
sheep’s actions, especially in preventing them from roaming onto a public road.
Decision
The case was heard on appeal in the High Court. The court found that the farmer was
not responsible for their sheep and therefore, not liable for the accident and injuries.
The court decided to follow old common law, originating in Britain, that suggested
farmers were not responsible for their roaming livestock. This principle existed
at a time when people riding horses and carriages could easily avoid livestock.
Significance
In the obiter dictum of Justice Mason’s judgment, he stated that ‘such law-making
should be left to parliament’. Five years later, influenced by the courts, the Victorian
LEGISLATION Parliament passed the Wrongs (Animals Straying on Highways) Act 1984 (Vic). This,
consequently, abrogated the common law and meant that farmers and landowners
Wrongs (Animals Straying on Highways) were now responsible for their livestock and any damage they may cause.
Act 1984 (Vic)
Image: Nataliia Melnychuk/Shutterstock.com

Figure 3 The courts did not want to change the law in the Trigwell case after the family was
injured in a car accident involving wandering sheep
The codification of common law 4.1.16.3

When parliament incorporates and confirms legal principles established by a court
KEY TERM
through the process of enshrining these principles into legislation, this is known
Codification the process of parliament as codification. This usually occurs because parliament agrees with a principle of
confirming common law precedent by common law established by judges from a particular case and wants to incorporate
enacting legislation to give effect to the the legal principle into legislation so that it becomes more solidified and protected
legal principles.
statute law. Following the codification of common law, judges cannot change their
minds and reverse the common law principle they initially established, meaning
they must follow this codified law in future cases. However, the law can be reformed
if parliament decides to amend or repeal the legislation.
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The process of codification also allows parliament to consolidate common law

principles that were established under similar circumstances into one piece of
legislation, improving the consistency and predictability of the law in certain areas.
8E THEORY
Without codified legislation, parties may struggle to understand the relevant legal
principle that applies to their case, and such application may differ depending on
the court that hears their case due to differing interpretations of existing precedent.

CONTENT WARNING Aboriginal and/or Torres Strait Islander readers should be aware You learnt about the Mabo case
that some material in this section may be culturally sensitive. Examples of this include in 8A Statutory interpretation and
references to people who have passed. 8C Courts’ ability to make law
– judicial conservatism and activism.
Mabo v Queensland (No. 2) (The Mabo Case) (1992) 175 CLR 1
You learnt about the Trigwell case in
Facts 8C Courts’ ability to make law
Before European settlement in 1788, it was believed Australia was ‘terra nullius’, – judicial conservatism and activism
meaning it was legally the ‘land of no-one’. This was a long-standing principle in and you will learn more about it in
Australia until Eddie Mabo, an Indigenous activist from the Torres Strait Islands, 9B Influences on law reform.
among others, argued the legal assumption of ‘terra nullius’ was incorrect as
First Nations peoples had lived on the land for tens of thousands of years prior to
colonisation. Mabo claimed Torres Strait Islander peoples had ownership rights over
the land in the Murray Islands, within the Torres Strait.
Legal issue
The issue was whether Aboriginal and Torres Strait Islander peoples had ‘native title’
to the land of Australia. Native title is the legal recognition of the rights and interests
of First Nations peoples to the land and waters based on their traditional ownership
of the land.
Decision
could exist if it could be proven that:
• there is a strong connection between the people and the land
Significance
Justice Brennan stated that the courts ‘cannot unquestionably adhere to earlier
decisions if they lay down a rule that seriously offends the values of justice and human
rights… which are aspirations of the contemporary Australian legal system’. The newly
established precedent had a significant impact on Australian property law.
As a result of this case, the Commonwealth Parliament codified the precedent into
Australian legislation, demonstrating that members of parliament supported the court’s
decision. Within a year of the case’s conclusion, the Native Title Act 1993 (Cth) was LEGISLATION
created by the Commonwealth Parliament as a confirmation of the High Court’s decision.
Native Title Act 1993 (Cth)
The abrogation of common law 4.1.16.4

As opposed to codification, parliament may undertake abrogation of a legal
KEY TERM
principle developed by a court, rendering the common law invalid by passing
legislation that overrides it. In this situation, the common law is superseded by Abrogation the process of parliament
legislation passed by parliament, due to its supremacy, whereby it is the superior overruling common law by creating
law-making power capable of overriding the court’s laws. a statute contrary to a decision of
the courts.
There are a few potential reasons as to why this may occur, with the most common
being that the parliament disagrees with the principle established in the courts.
This disagreement may be due to a perceived statutory misinterpretation by the
courts, meaning a judge has applied a statute in a way that was not aligned with the
intended purpose of the Act and its associated outcomes.

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USEFUL TIP HYPOTHETICAL SCENARIO

Parliament cannot abrogate common Festival fiasco!
law in cases where the High Court
8E THEORY
of Australia has ruled on a matter In 2050, the number of people attending festivals has declined in Victoria due to the
relating to the Australian Constitution. heat of these events and the lack of well-known artists performing at them. To combat
The High Court has ultimate authority this issue, the Victorian Parliament passed the Festival Incentive Act 2050 (Vic). Under
regarding the interpretation of the section 5 of the Act, a person can receive a $100 payment for attending a festival in
Constitution. an effort to increase the number of patrons, thus boosting the economy in the areas
hosting these festivals. However, s 5 has restrictions on who can access this payment,
stating:
‘In order to access the festival payment, a person must have:
• residency in Victoria
• attended a Victorian festival before
• a bachelor’s degree from an Australian university.’
Otto sought to receive a payment under the Act to attend ‘Camp’, a festival in regional
Victoria. However, he was rejected on the basis he did not have a house in Victoria. He
brought an action against the State of Victoria claiming it was incorrect for the state to
refuse giving him a payment on the basis that he did not meet the residency criteria, as
he did meet the ‘residency’ criteria by living in Victoria for the past nine months, even
though he was living in a hotel during this time. The judge had to interpret the meaning
of ‘residency’, deciding it required a person to have been living primarily in Victoria for
the past 12 months, but did not require that the person was living in a permanent home
or apartment, meaning living in Victoria was sufficient. Therefore, even if someone had
a home in Victoria, but had been overseas or in a different state for the past six months or
more, they would not meet the ‘residency’ requirement and could not receive the funding.
The Victorian Parliament believed this to be an incorrect interpretation of ‘residency’.
Parliament amended the Festival Incentive Act 2050 (Vic) to include a definition of
‘residency’ in section 3 of the Act, which stated:
‘Residency in Victoria requires a person to have a permanent property in Victoria,
either an apartment or house. The amount of time a person spends in Victoria shall
not be considered when determining if a person is a resident.’
By adding this section to the Act, parliament abrogated the court’s interpretation
of ‘residency’ so Victorians living in hotels in the future would be unable to claim the
festival payment under the Act.
Figure 4 Parliament ruled against the court’s decision on the definition of ‘residency’ after Otto
could not attend the festival for a cheaper rate
Lesson summary
• There are four features of the relationship between courts and parliament
in law-making, which are the:
– supremacy of parliament
– ability of courts to influence parliament
– codification of common law
– abrogation of common law.
• Each of these features of the relationship between parliament and the courts
demonstrates the constant link between these institutions, not just in law-making,
but in the legal system overall.
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8E Questions
8E QUESTIONS
Question 1
The parliament and courts are completely separate in law-making and are largely independent of each other.
A. True
B. False
Question 2
When a judge wishes to make a statement of opinion that does not inform their final decision on the case
at hand, they may make these comments as:
A. final notes.
B. mens rea.
C. obiter dictum.
D. ratio decidendi.
Question 3
Parliament cannot alter or introduce a law if the Constitution prohibits it from doing so. It does not have
supremacy over the Constitution.
A. True
B. False
Question 4
Tick the box to indicate whether each of the following statements are true or false about codification
and abrogation.

I. The parliament demonstrates its approval of a common law principle through abrogation.
II. The parliament demonstrates its disapproval of a common law principle through codification.
III. The parliament demonstrates its approval of a common law principle through codification.
IV. The parliament demonstrates its disapproval of a common law principle through abrogation.
Question 5
Parliament is always bound to listen to the comments of judges.
A. True
B. False
Preparing for exams

Standard exam-style
Outline one feature of the relationship between the courts and parliament in law-making.
Describe one way the courts may be able to influence parliament in law-making.

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Distinguish between the codification and abrogation of common law.
8E QUESTIONS
A legal critic once said, ‘Parliament is less powerful than the Supreme Court of Victoria in law-making’.
Is this statement correct or incorrect? Explain your answer.
Imagine that in the year 2078, a case comes before the High Court of Australia, relating to holographic
advertising. The plaintiff, Ms Ashton, was disturbed by a holographic billboard emitting excessive light
next to her property. The High Court rules in Ms Ashton’s favour and against the advertising company,
PG Inc. In doing so, it creates the ‘holo-limits’ principle, which becomes binding precedent.
Explain how the common law principle of ‘holo-limits’ might influence parliament.
Extended response
A complex criminal case is heard in the Supreme Court in regard to assault using electric scooters.
The ruling judge acknowledges that the circumstances of the crime are not specifically defined in the relevant
statute law and therefore, through their interpretation, creates a new common law principle. Following the
resolution of the case, another case of a similar nature comes before the Supreme Court and the ruling judge
decides to follow the recently established common law principle. However, in their judgment, through obiter
dictum, they note that they do not believe this common law establishes the best resolution for such cases
involving electric scooters. Parliament is unhappy and decides to take action by creating legislation that goes
against the common law principle made by the first, Supreme Court judge.
Question 11
Tick the box to indicate whether each of the following statements are true or false about the relationship
between parliament and the courts in relation to assault using electric scooters.

I. Parliament has taken note of the judge’s obiter dictum and acted accordingly in law-making.
II. Parliament has demonstrated its disapproval of the common law created by the first judge,
through the creation of new legislation.
III. Parliament has demonstrated its approval for the common law principle applied by the
Supreme Court judge through creating legislation enshrining this principle in statute.
IV. Parliament is able to overrule the decision of the Supreme Court as it is the supreme
law-making body.
Analyse the relationship between parliament and the courts in relation to assault using electric scooters.

‘Statutory interpretation and the doctrine of precedent are the only ways that courts can influence law-making.’
Is this statement correct? Justify your response.
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Question 14
8E QUESTIONS
Tick the box to indicate whether each of the following statements would enhance or limit the effectiveness
of law-making by parliament or the courts.
Statement Enhance Limit

I. The bicameral structure of parliament ensures that legislation is scrutinised by all members
of parliament.
II. If the parliament consisted of only one house in which the government of the day had a majority,
the government in power could influence changes in legislation that align solely with its political
agenda rather than enacting statute that reflects the views and values of all constituents.
The requirement for legislation to pass through a second house of parliament can prevent
this from happening.
III. Where the government of the day has a majority in both the lower and upper house of
parliament, the upper house may ‘rubber stamp’ bills, whereby it passes legislation with
little scrutiny. In these circumstances, a bill may undergo little to no consideration.
IV. The Commonwealth Parliament may be more inclined to introduce or modify legislation to
ensure it upholds human rights since if Australia is found to be in breach of human rights
treaties it is a signatory to, parliament will likely face criticism from other countries.
V. Judges can create new legal principles or interpret existing legislation. This allows judges
to create and apply legal principles that specifically address the matters in the case by
considering issues that have not been accounted for by legislation.
VI. The reluctance of parties to pursue a matter through the courts due to the costs and time
required for a case to be resolved means that some cases are not heard in court.
VII. The requirement for standing limits the ability of individuals with a general interest in an issue to
change the law as they are unable to pursue the matter through the courts if they have not been
directly affected by the matter or do not have a special interest in the case.
VIII. Unlike members of parliament, judges are not elected by the people and may, therefore, be
more inclined to make progressive changes to the law without the fear of not being re-elected.
This can result in the courts more easily altering common law principles in Australia to better
align with progressive shifts in society’s values.

‘Parliament will always be more effective in law-making when compared to courts. Therefore, it is best
for courts to leave the duty of creating and amending laws to parliament.’

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UNIT 4 AOS 2
The people and reform
Laws should reflect the needs of society, but they can reform bodies. Students examine the relationship between
become outdated. Individuals and groups can actively the Australian people and the Australian Constitution, the
participate to influence change to laws, and law reform reasons for and processes of constitutional reform, the
bodies (including the Victorian Law Reform Commission, successful 1967 referendum and calls for future constitutional
parliamentary committees, and Royal Commissions) reform, such as that articulated by the 2017 Uluru Statement
can investigate and make recommendations for change. from the Heart.
Laws can be changed by parliament and the courts, while
constitutional reform requires a referendum.
Outcome 2
On completion of this unit the student should be able to explain
In this area of study, students investigate the need for law the reasons for law reform and constitutional reform, discuss
reform and the means by which individuals and groups can the ability of individuals to change the Australian Constitution
influence change in the law. Students draw on examples of and influence a change in the law, and evaluate the ability of
individuals, groups and the media influencing law reform, as law reform bodies to influence a change in the law.
well as examples from the past four years of inquiries of law
KEY SKILLS
• define and use legal terminology • discuss the ability of the Australian people to change the
• discuss, interpret and analyse legal principles and Australian Constitution, including in relation to the 1967
information referendum about First Nations people and possible future
• explain the reasons for law reform and constitutional constitutional reform
reform, using examples • evaluate the ability of law reform bodies to influence a
• analyse factors affecting the success of a referendum change in the law, using recent examples
• analyse the role of the media in law reform using examples • synthesise and apply legal principles to actual and/or
• discuss the means by which individuals or groups can

hypothetical scenarios.
influence law reform, using examples
394
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9
CHAPTER 9
Parliament and the Australian Constitution
9A Reasons for law reform Law reform

• reasons for law reform
9B Influence on law reform
• the means by which individuals or groups can influence
9C The role of media in law reform law reform including through petitions, demonstrations
and the use of the courts
9D The Victorian Law Reform Commission
• the role of the media, including social media, in law reform
9E Royal Commissions • the role of the Victorian Law Reform Commission and
its ability to influence law reform
9F Parliamentary committees
• one recent Victorian Law Reform Commission inquiry
relating to law reform in the civil or criminal justice system
Image: Ground Picture/Shutterstock.com • the role of Royal Commissions or parliamentary
committees in law reform and their ability to influence
law reform
• one recent Royal Commission inquiry or one recent
parliamentary committee inquiry.
395
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9A Reasons for law reform

• reasons for law reform
9A 9B 9C 9D 9E 9F
Image: MsDianaZ/Shutterstock.com
Imagine being bound by law that existed 4.2.1.1

100 years ago. Completing secondary Reasons for law reform
school was a foreign concept for most,
there was no minimum legal working age, 4.2.1.1.1 Shifts in community values
and instead of reading this textbook, you 4.2.1.1.2 Advances in technology
would most likely have been labouring in the
4.2.1.1.3 Changes to economic conditions
fields. This is one of the reasons why the
law must adapt; to suit the period of time 4.2.1.1.4 Protection of society
for which it is being made. 4.2.1.1.5 Improving the legal system
Lesson introduction
Parliament, as the supreme law-making body, monitors when laws require change
and makes modifications accordingly. Laws need to be relevant to the particular social,
political, and economic climate of the day.
Given members of parliament are elected representatives, they should seek to
develop laws that are in the best interests of the people. This can be achieved through
consultation with the community, responding to recommendations from law reform
bodies and inquiries, monitoring opinion polls, and observing social behaviours
and events.
Reasons for law reform 4.2.1.1

Society is constantly changing and it is important that the law reflects these changes.
KEY TERM
For laws to be effective, it is crucial that people are willing to be bound by them. Thus,
Law reform the amendment, it is essential for law reform to occur in accordance with shifts in community values,
progression, and/or modernisation advances in technology, and changes in economic conditions. Laws must also be
of law by aligning it with societal modified to protect society and holistically improve the legal system. Moreover,
attitudes, removing defective elements,
international pressures can also be a catalyst for law reform as Australian laws
and improving its effectiveness.
may also need to be reflective of broader international agreements and the global
LEGAL VOCABULARY sociopolitical climate. There are many reasons why law reform might become
necessary, including the examples shown in Figure 1.
International pressures the influence
that other countries and international
organisations exert on parliaments to Shifts in Advances in Changes to Protection Improving the
ensure the laws created comply with community values technology economic of society legal system
conditions
international standards.
LESSON LINK
You learnt about international
pressures in 7G Parliament’s ability to
make law – international pressures.
Figure 1 Examples of reasons for law reform
396 CHAPTER 9: Law reform

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Shifts in community values 4.2.1.1.1

The shared beliefs of the local, state, and national communities are always changing.
9A THEORY
Therefore, laws must adapt to suit these changing beliefs, so that citizens are more
likely to respect and obey the law. Parliament can become aware of shifts in community
values by observing opinion polls, hosting consultations with the community,
and observing major events, such as demonstrations. Recent examples of shifts
in community values include changing views in relation to smoking, religion, and
gender equality. When the widespread beliefs relating to these social issues change
over time, new laws may need to be created to reflect newly updated and commonly
accepted values.
REAL WORLD EXAMPLE
A shift in community values regarding climate change

In a 2012 survey by the Lowy Institute, 36% of Australian people expressed that climate
change was a serious and pressing issue. This number rose to 60% in 2022. Therefore,
in recognition and acknowledgment of the shift in societal attitudes about this significant
matter, parliament passed the Safeguard Mechanism (Crediting) Amendment Act 2023 (Cth) LEGISLATION
in April 2023.
The Act seeks to reduce emission intensity by 4.9% annually to help achieve Australia’s Safeguard Mechanism (Crediting)
targets under the Paris Climate Agreement, among other purposes. Furthermore, the Act Amendment Act 2023 (Cth)
will repeal the objectives of the National Greenhouse and Energy Reporting Act 2007 (Cth) National Greenhouse and Energy
under subsection 3(2), instead aiming to achieve a series of alternative objectives. These Reporting Act 2007 (Cth)
objectives include decreasing net safeguard emissions to a maximum of 100 million
tonnes of carbon dioxide in 2029, and zero from 2049 onwards. Therefore, the Act seeks
to assist the government’s 2030 objective of reducing emissions by 43% and ultimately
ensures better alignment with shifts in community values.
Adapted from ‘Climate Change’ (Lowy Institute Poll, 2023) and ‘Review of the National Greenhouse and Energy
Reporting Legislation Final Report’ (Australian Government Climate Change Authority, 2018)
Image: Leonid Sorokin/Shutterstock.com

Figure 2 The Australian Parliament has implemented new legislation to reduce gas emissions
by corporations
Advances in technology 4.2.1.1.2

Technology is becoming increasingly widespread and essential to the everyday
lives of humans. Advances in technology have numerous implications for many
different areas of law. Whilst physical stalking has been an area of law tackled
for decades, issues such as cyberstalking and online scams are relatively new
and require updated legislation to appropriately address any potential harm.
Furthermore,the language of law may become outdated, which has prompted
parliamentto adopt technology-neutral phrasing in some areas of law to allow for
a wide interpretation. Overall, with these new developments in technology, there
aremore scenarios in which laws need to be created to ensure their relevance.
For example, in 2022, the Commonwealth Parliament passed the Corporations LEGISLATION
Amendment (Meetings and Documents) Act 2022 (Cth). This Act allows companies
to now validly use technology to execute documents, instead of having to sign Corporations Amendment (Meetings and
Documents) Act 2022 (Cth)
such documents in person. It was introduced during the COVID-19 pandemic
as companies were having difficulties meeting in person to execute documents.

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REAL WORLD EXAMPLE
Archaic Acts?
9A THEORY
LEGISLATION The Electronic Transactions Act 1999 (Cth) aims to facilitate peoples’ use of technology in
conducting business, such as the signing of contracts via electronic devices. The last time
Electronic Transactions Act 1999 (Cth) it was amended to reflect technological advances was in 2011. Since then, technology has
rapidly evolved with new technologies being invented and great progressions occuring in
the field of artificial intelligence.
However, given that the Act was last updated just over a decade ago, it is a key example of
legislation that is likely in need of an update to ensure it remains relevant to new situations
that may arise as a result of swift advances in technology.
Adapted from ‘It’s official: Virtual meetings and e-signing are here to stay’ (Khong et al., 2022)
Image: Leonid Sorokin/Shutterstock.com

Figure 3 The latest iPhone model from when the Electronic Transactions Act 1999 (Cth) was
last amended
Changes to economic conditions 4.2.1.1.3

Due to the cyclical nature of Australia’s economy, economic conditions are constantly
changing. Therefore, legislation must be created or amended to reflect the economy’s
needs throughout various stages of its cycle. For example, in periods of recession,
it may become apparent that amendments to legislation are needed to cater for the
adverse economic conditions occurring at that time. Legislation must also reflect the
consequences of unusual economic events, such as global supply shocks or pandemics,
due to the effects of these occurrences on peoples’ income, employment, and spending.
REAL WORLD EXAMPLE
As COVID-19 cases rose, so too did the unemployment rate

During the COVID-19 pandemic, economic conditions worsened as lockdowns
progressed. Many people were let go from their jobs and unable to find new work, with the
unemployment rate reaching 7.5% in July 2020 (Australian Bureau of Statistics, 2023).
In order to stimulate the economy, a $550 fortnightly Coronavirus Supplement for new
and existing members of the JobSeeker payment, a welfare program for those seeking
Image: Chansom Pantip/Shutterstock.com
employment, was introduced via amendments to existing social security legislation.
Figure 4 Many businesses were not
This law reform aimed to adequately react to the change in economic conditions.
permitted to trade during Victorian
COVID-19 lockdowns Adapted from ‘Labour Force, Australia’ (Australian Bureau of Statistics, 2020)
Protection of society 4.2.1.1.4

Our society is comprised of various different groups and communities, many of whom
are vulnerable to harm. Parliament must change the law when it is clear that existing
laws do not adequately protect these particular groups, especially when these groups
cannot prevent or control the harm that is occurring. Often, these sources of harm can
develop and change over time. Therefore, new legislation must be created to address
these new harms.
For example, in May 2023, the Victorian Government announced an importation
ban on non-prescription vaping products, with only pharmacies being able to access
certain vapes with minimum branding, flavouring, and coloured advertising.
This law reform aims to protect the general population, particularly teenagers,
from accessing vaping products that cause harm to their physical health.

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REAL WORLD EXAMPLE
Jail time for harm to emergency workers
9A THEORY
In 2020, the Sentencing Act 1991 (Vic) was amended by the Sentencing Amendment LEGISLATION
(Emergency Worker Harm) Act 2020 (Vic). The purpose of the Amendment Act was
to protect emergency workers from harm on the job. For example, the Amending Act Sentencing Act 1991 (Vic)
requires courts to impose a sentence of imprisonment in all cases where an offender Sentencing Amendment (Emergency
recklessly or intentionally injures an emergency worker on duty, except in circumstances Worker Harm) Act 2020 (Vic)
of mental impairment.
Adapted from ‘Protecting Emergency Workers From Harm’ (Premier of Victoria, 2020)
Image: Ann Kosolapova/Shutterstock.com

Figure 5 Emergency workers are particularly exposed to the possibility of harm in their course
of work
Improving the legal system 4.2.1.1.5

Sometimes, the structure and systems of the legal system require updating to
LESSON LINK
better achieve justice for parties. For example, solicitors typically charge hundreds
of dollars per hour for their time, leaving those who cannot afford such fees to You learnt about the impacts of costs
in criminal and civil cases in 2H The
rely on self-representation. Consequently, parties in a case may not be equally
impact of costs and time - criminal
represented. To help rectify the inequalities that exist, law reform has occurred
cases and 5K The impact of costs and
in the past to enable all people in the community to have better access to legal time - civil disputes.
information and advice. For example, in 2022, the Victorian Parliament passed
legislative amendments requiring courts to regard additional considerations when
determining whether to allow the pre-trial cross-examination of a witness with
a cognitive impairment.
REAL WORLD EXAMPLE
Unscrambling 1,000 eggs: Structurally reforming the family law system

A culmination of many factors led to a backlog of over 20,000 family law cases before
the courts in 2017. Moreover, amendments to the Family Law Act 1975 (Cth) resulted in LEGISLATION
further rights being stripped from children, which legal professor Camila Nelson noted
as a ‘matter of public shame’ (Nelson, 2023). Family Law Act 1975 (Cth)
Consequently, the Australian Law Reform Commission (ALRC) was tasked with Family Law Amendment Act 2023 (Cth)
undertaking a review of the entire family law system, producing a report in 2019 with
over 60 recommendations. The report outlined that an entire overhaul of the system
was required, which critics dubbed an insurmountable task, akin to ‘unscrambling
1, 000 eggs (Lorimer, 2022).
Following this, in 2023, the Commonwealth Parliament passed the Family Law
Amendment Act 2023 (Cth). The Act adopts some of the ALRC’s recommendations,
as well as elements of a joint select committee report. The Act aims to simplify and
streamline the legislative framework of the family law system in order to reduce delays.
The Act also proposes children be at the centre of every legal determination, with the
aim of upholding their rights. However, children are yet to be given material legal rights
in family disputes.
Adapted from ‘Reform of family law’ (Lorimer, n.d.), ‘Labor’s proposed family law overhaul makes some important
changes but omits others’ (Nelson, 2023), and ‘Family Law Amendment Bill 2023: Explanatory Memorandum’
(Parliament of Australia, 2023)

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USEFUL TIP
In past VCAA Legal Studies exams, questions about the reasons for law reform have
9A QUESTIONS
asked students to reflect on stimulus to determine why law reform has occurred. In the
examiner comments for VCAA 2022 exam Q1b, the examiners wrote: ‘meaningful use
of the stimulus material was required’. When tasked with a stimulus question, remember
to always refer back to the scenario or example given in order to obtain full marks.
Not all reasons for law reform addressed in this lesson will apply to certain scenarios,
so it is also important to talk about reasons for law reform that relate most closely
to the scenario.
Lesson summary
Table 1 Summary of the reasons for law reform
Reason for law reform Example

Shifts in community values Legislation requiring companies to reduce
carbon emissions in order to reflect community
values about climate change.
Advances in technology Amendments to legislation allowing corporations

to execute documents using technology.
Changes to economic conditions $550 Coronavirus Supplement.
Protection of society Broadening offences relating to harm against

emergency workers.
Improving the legal system The ALRC review of the Australian family
law system.
9A Questions
CONTENT WARNING These questions mention content that is sensitive in nature, relating to sexual offences.

Question 1
Which of the following is the most appropriate way parliamentarians can monitor the need for law reform?
A. Consult the community.
B. Read history books.
C. Have a team lunch.
D. Ask artificial intelligence.
Question 2
Which of the following statements explain why advances in technology are a reason for law reform?
A. To ensure the language of the law does not become outdated.
B. New technology creates scenarios not previously covered by the law.
C. Technology is becoming less widespread.
D. Technology has few implications for existing legislation.

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Question 3
Why does the law have to reflect community values? (Select all that apply)
9A QUESTIONS
A. So that people obey the law.
B. So that people will protest the law.
C. So that people respect the law.
D. So that people will not want to follow the law.
Question 4
Which of the following examples of law reform is a response to changing economic conditions?
A. The Safeguard Mechanism (Crediting) Amendment Bill 2022 (Cth).
B. The Victorian Law Reform Commission report into stalking.
C. The $550 Coronavirus Supplement.
D. Tasking the Australian Law Reform Commission with undertaking a review of the family law system.
Question 5
obey suit ignore
The shared beliefs of the local, state, and national communities are always changing. Therefore, laws must adapt to
these changing beliefs, so that citizens are more likely to respect and the law.
Question 6
Which of the following are reasons why parliament may seek to improve the legal system?
A. To increase accessibility to the legal system.
B. To reduce costs.
C. To reduce delays.
D. To increase delays.
Preparing for exams

Standard exam-style questions
Outline one reason for law reform.
In 2021, the Victorian Law Reform Commission (VLRC) investigated why many people are hesitant
to report sexual violence, based on the fact that 87% of victims do not report instances of sexual assault
to the police. Some commentators have called for parliament to change the law to make it easier for victims
to report sexual crimes.
Why might law reform be necessary in relation to sexual offences? Justify your response.
It is the year 3024, and due to a shortage of bees, Australia has introduced robot bees that have abilities
to pollinate as regular bees. All bees contain publicly accessible cameras. Australians have started storing
the bees in their homes to help grow their own produce. There are currently no laws regulating the cameras
on these bees, where these bees can travel, and who can store them for private use.
Explain one reason for the need to change the law in Australia in relation to robot bees.

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For decades, in the small town of Indio, being barefoot outside of one’s own home has been legal. However,
9A QUESTIONS
there are an unprecedented amount of construction nails on the ground. A local politician, Eddie, has proposed
introducing a new law called the Shoe Bill 2073 which will make it illegal to walk in public barefoot, under
the slogan ‘shoe the shoeless’. The bill will mandate the wearing of shoes outside. 93% of the community
supports the proposed reform.
With reference to the scenario, explain two reasons why laws may need to change.
Extended response
Use your answers to question 11 to support your response to question 12.
In 2016, the Victorian Government passed the Tobacco Amendment Act 2016 (Vic) and smoking became
prohibited in outdoor dining areas. Second-hand smoking is the involuntary inhalation of burnt tobacco
from cigarettes. The effects of second-hand smoke are shown to be harmful even at low levels, such
as in outdoor areas, given cigarettes contain 7,000 harmful chemicals. Over 73% of Victorians
supported the introduction of a ban on smoking in outdoor areas.
Question 11
Tick the box to indicate whether the following statements relates to the protection of the community
or a shift in community values as reasons for smoking law reform.
Statement Protection of the community A shift in community values

I. Law reform may be required to protect particular
communities from harm, especially when these groups
cannot prevent or control the harm that is occurring.
II. As 73% of Victorians support a ban on smoking in outdoor

dining areas, law reform should occur.
III. It is imperative that laws shift alongside community

values,so that citizens are more willing to respect and
obey the law.
IV. Non-smokers cannot control the degree of second-hand

smoke they inhale when dining outdoors.
Analyse the links between smoking in outdoor dining areas and the need for law reform.

Explain one way in which international pressures can act as a reason for law reform.

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9B Influences on law reform

• the means by which individuals or groups can influence law reform including
through petitions, demonstrations and the use of the courts
9A 9B 9C 9D 9E 9F
‘No government can accomplish anything alone.

It can do only what the people approve of or at
4.2.2.1 4.2.2.2 4.2.2.3 least permit to be done.’—Alexander Berkman
Petitions Demonstrations The use of the courts (Philosopher, ‘Now and After’, 1929)
Without the approval of the people, the
law holds little value. Collectively, nearly
26 million Australians have the power to
be the direct determinants of their fate
and governing laws, should they choose to
use this power and exercise their influence
through various means and institutions.
Lesson introduction
Individuals and groups can be powerful in pressuring parliament to make legislative
change to ensure laws represent their views and values. The desire for change can be
publicly signified through various methods including petitions, demonstrations, and
the use of the courts. The collective power and capacity of the people can be extremely
effective in establishing law reform. For example, if every working person in Victoria
boycotted their occupation, the economy would collapse.
Petitions 4.2.2.1
A petition, in the context of law reform, is a written document signed by a number
KEY TERM
of people to demand change from the government. Petitions are usually political
in nature and are the only means for directly presenting grievances to parliament. Petition a formal document addressed
Generally, a petition is initiated with the intention of demanding the introduction to the government that is signed by
of new legislation or the amendment of an existing law or policy. Petitions must be individuals who are demanding action
or legislative reform.
tabled before parliament if they are to be officially considered. There are no costs
associated with initiating a petition, and they can be made online as e-petitions,
which are lodged on the Victorian and Commonwealth parliamentary websites,
or be presented to parliamentarians as hardcopies.
Once the petition has On a sporadic basis, usually

A second part of the report
finished taking signatures, bi-monthly, the Committee
A petition is lodged on the also shares the ministerial
the House Standing Committee shares a report on each
official parliamentary website. response to petitions received
on Petitions processes petition that has been lodged
by the Committee.
the petition. before the lower house.
Figure 1 The process of lodging an e-petition
Following the submission of a petition and the subsequent ministerial response, it is

up to the relevant minister to action the requests of the petition. Parliament receives
hundreds of petitions each year, thus, petitions with high levels of community support
are more likely to be actioned, as the government theoretically should ensure its laws
represent the views and values of the majority.

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REAL WORLD EXAMPLE
Rudd takes on the Australian Media

9B THEORY
In 2020, former prime minister Kevin Rudd launched what would become Australia’s largest
ever e-petition, and third largest petition in Australian history, garnering over 501,000
signatures. The petition urged the government to initiate a royal commission into the
ownership of media in Australia.
The petition was successful in gaining the attention of parliament and became the subject of
a year-long Senate inquiry. The final report was published in December 2021 and resulted
in a damning indictment on media ownership in Australia, labelling the entire system as
‘not-fit-for-purpose’. It also outlined the ramifications of the digital consumption of news
Figure 2 Former prime minister Kevin Rudd’s content and called for a judicial inquiry to investigate the media system as a whole. Since
petition on media ownership diversity was one the publication of the report’s findings, no further action has occurred in regard to media
of the largest petitions in Australian history consumption and diversification.
Therefore, Rudd’s petition is a key example of the limitations of petitions, as once the petition
is created and campaigned for, it is then in the hands of parliament to determine how the
demands will be actioned, if they are actioned at all.
Adapted from ‘How large is Rupert Murdoch’s reach through News Corp in Australian media, old and new?’
(Campbell, 2021) and ‘What next for Kevin Rudd’s Murdoch royal commission push?’ (Visentin, 2022)
Table 1 Strengths and limitations of petitions as a means of influencing law reform

USEFUL TIP
An important key skill in Area of Study Strengths Limitations
2 of Unit 4 VCE Legal Studies is to • Petitions are a convenient and free • Parliament is unlikely to respond to
‘discuss the means by which individuals
method of collating support for calls for law reform if a petition does
or groups can influence law reform,
action, particularly e-petitions. not have many signatures or high
using examples’. These tables showing
• The relevant minister is required levels of community support. It is
the strengths and limitations of each
to respond to all e-petitions in the difficult to attain enough signatures
method of influencing law reform,
Petition Report, which is tabled on a petition to convince parliament
along with examples throughout
this lesson, can help you develop every few weeks in parliament. that law reform is required.
a discussion on this topic. • Petitions with a large number of • It is ultimately up to the relevant
signatures can successfully raise minister to determine if the demands
awareness about an issue within of a petition will be actioned or not.
the media and community, even if • Petitions generally need to be
legislative change is not actioned. about legislative issues that are
on the current agenda for parliament
to pay sufficient attention to the
petition’s demands.
Demonstrations 4.2.2.2
Demonstrations occur when a large number of people congregate to bring attention
KEY TERM
to a common issue and are often the result of people’s dissatisfaction with the
Demonstration public protest to a law current law. Demonstrations have effectively influenced law reform for centuries and
or action undertaken by a large group have the ability to either initiate minor legislative changes or even overthrow whole
of people. governments and economic systems. Given the disruptions demonstrations can cause,
such as blocking major intersections or striking and leaving workplaces empty until
LEGAL VOCABULARY
reform is enacted, the demands of a demonstration are more likely to be met swiftly.
Constituent a person who votes for, However, an overly disruptive or violent demonstration may lead to the cause being
and is then represented in government
perceived negatively by the media and the public.
by, an elected official.
However, demonstrations must be persistent. If momentum for a movement is
enhanced by a demonstration, the momentum must be built upon and maintained,
otherwise legislative reform may not occur and the passion for a common issue may
fade as quickly as it was mustered up.

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REAL WORLD EXAMPLE
A fair day’s work, for a fair day’s pay
9B THEORY
In April 1856, Victorian stonemasons laid down their tools and went on strike against their
employers, wanting improved working conditions. They demanded a day that included eight
hours of work, eight hours of rest, and eight hours of sleep, an idea originating in socialist
Scottish communities in 1817. The demonstration grew as the initial protesting stonemasons,
who were in the midst of constructing the Melbourne University law facility, marched to the
Victorian Parliament and were joined by additional stonemasons on their way.
Protests continued until negotiations concluded with the government, whereby most
tradesmen were granted an eight-hour working day for 10 hours of pay. Demonstrations
and demands continued across all professions and eventually, the eight-hour day movement
reached all Victorian workers in 1916. Subsequently, all Australians in 1948 were affected
by the movement’s success when the Commonwealth Parliament legislated the 40-hour,
five-day working week.
The eight-hour stonemason movement was a watershed moment for all Australian workers.
Ultimately, the movement serves as a great example of the power of protests in enabling
Figure 3 The eight-hour day monument
individuals and groups to influence changes to the law. in Melbourne
Adapted from ‘Eight-hour day’ (National Museum of Australia, 2023)
REAL WORLD EXAMPLE
From 350,000 to a few dozen – the decline of the Australian School Strike for
Climate movement
The Australian School Strike for Climate (SS4C) movement garnered the support of over
350,000 students across the country in 2019, protesting for the Australian Government
to alter its climate change policy to include a 100% reduction in emissions by 2030. The
demonstrations of 2018 and 2019 were highly successful in raising awareness and attracting
mass media attention. However, the movement in Australia has markedly declined since.
In March 2023, less than 200 people took to the streets of Sydney for the annual strike,
despite the current government’s climate commitment being only a 43% emissions reduction
aim by 2030.
The overarching reason for this decline may be attributed to a loss of momentum over recent Figure 4 The number of School Strike for
years. COVID-19 lockdowns in 2020 and 2021 made protesting somewhat impossible, Climate protestors in Australia has declined
and when a new federal government was elected in 2022, whose views were slightly immensely
more aligned with the SS4C movement than the previous government, it is possible some
protesters felt their job was done. Despite the aims of the movement not being met, and
one in four young Australians being extremely concerned about climate change, the sense
of anxiety regarding climate change has become ‘very familiar’ for some (Gregoire, 2023)
and, ultimately, complacency has occurred.
A valuable lesson lies in the SS4C movement. The momentum that can be stirred up by
a demonstration must be consistently followed up with profound and uncompromising
action if law reform is to be influenced.
Adapted from ‘“We’re Seeing No Substantial Change”: School Strike 4 Climate’s Ethan Lyons on a Viable Future’ (Gregoire,
2023) and ‘Link between climate change, youth mental health concerns highlighted by new national survey’ (Miles, 2023)
Table 2 Strengths and limitations of demonstrations as a means of influencing law reform
• Demonstrations have the ability to cause disruption and can • If a successful demonstration is not immediately followed
be an effective tool for people to have their demands met up by further action, momentum for a cause will often fade.
swiftly, as exemplified by workers’ strikes. • The disruptions caused by demonstrators often result in
• Demonstrations with a large number of people can be good negative media attention, particularly if the issue is considered
at gaining publicity for a common issue. ‘extreme’ by the media and is against politcian’s interests.
• Given the representative nature of parliament, • Demonstrations are difficult to organise and are
parliamentarians should theoretically pay close attention time-consuming, as they require a large mass of people
to demonstrations, as a number of their constituents are to be in the same place, at the same time.
clearly communicating their desire for change.

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The use of the courts 4.2.2.3

Individuals and groups with standing can influence law reform by bringing their cases to
LEGAL VOCABULARY
9B THEORY
court as this may lead to the establishment of a new precedent. However, if a party is unable
Parliamentary supremacy the legal to demonstrate that they are sufficiently impacted by the law and the issues of the case, then
concept that parliament has the they will not have standing and therefore, will not be able to use the courts to influence law
freedom to make, amend, or abolish reform. If a court does not hear a case regarding a particular issue, then it is impossible for
laws, subject to limitations outlined it to set a precedent in that area of law.
in the Australian Constitution,
Moreover, attention can be drawn to an issue as a result of an individual or group taking
and is supreme over other arms of
a case to court. In particular, class actions may bring significant media attention where
government, such as the executive and
there are a number of plaintiffs involved in the dispute. However, this attention is often
the judiciary.
a by product of the court claim. That is, individuals and groups rarely take issues to court
Codification the process of parliament
for the sole reason of drawing attention to the issue, Rather, they are usually trying to prove
confirming common law precedent by
their own claim. Nonetheless, the inadvertent attention brought to an issue of concern
enacting legislation to give effect to the
can act as an additional influence on law reform. Additionally, individuals and groups may
legal principles.
intentionally seek to draw attention to an unsuccessful outcome, possibly with the hopes
Abrogation the process of parliament
of garnering community support for a particular issue or law reform.
overruling common law by creating
a statute contrary to a decision of Furthermore, due to parliamentary supremacy, common law may be confirmed by
the courts. parliament through codification. This may enshrine the precedent established in
a particular case into legislation, illustrating the ability of individuals to influence
law reform through the courts. Alternatively, precedents established during court
proceedings may be overruled by parliament through abrogation, limiting the ability
of individuals or groups to influence law reform through the courts.
Table 3 Strengths and limitations of using the courts as a means of influencing law reform
• The courts may establish a new precedent when a case is • Individuals or groups pursuing litigation must hold
brought before them. sufficient standing, whilst also establishing enough evidence
• Parliament may codify common law principles into to not only bring the case to court but also have an outcome
statutory law. that is in their favour.
• Even if a matter is unsuccessful in court, attention may be • The supremacy of parliament means it can abrogate
garnered that can prompt legislative change. any common law precedent set by the courts.
• Pursuing litigation is extremely expensive and
time-consuming, so the average person may be
deterred from pursuing an issue through the courts.
LESSON LINKS LEGAL CASE
You learnt about costs and delays State Government Insurance Commission v Trigwell (1979) 142 CLR 617
in the court system in 5K The impact
Facts
of costs and time – civil disputes.
The Trigwells were travelling on a main highway when a three-car collision occurred after
You learnt about class actions in
two sheep strayed onto the road from an adjoining farm.
5G Class actions.
You learnt about precedent in 8B The Legal issue
doctrine of precedent. The Trigwells claimed the accident was caused by the sheep entering the road, therefore
You learnt about the requirement for constituting negligence committed by the farm owners. The issue then became whether
standing in 8D Courts’ ability to make or not to apply the British common law principle established in Searle v Wallbank [1947]
law – costs, time, and the requirement AC 341, where it was found that occupiers of land adjoining a highway do not owe a duty
for standing. to the users of the highway.
You learnt about codification and Decision

abrogation of common law in 8E The The High Court, in the appeal case, maintained the original decision and applied the
relationship between courts and precedent of Searle v Wallbank, therefore dismissing the claims that the sheeps’ owners
parliament in law-making. acted negligently.
Continues →

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LEGAL CASE
State Government Insurance Commission v Trigwell (1979) 142 CLR 617
9B THEORY
– Continued
Significance
Chief Justice Barwick stated that even if the common law principle established by Searle v
Wallbank was outdated by modern standards, enacting any change in that area of law was
a matter for the legislature and not the judiciary. Ironically, Barwick CJ also stated that the
High Court should overrule decisions that are incorrect. This attitude of the High Court
resulted in some controversy, and eventually, in response, the Victorian Parliament passed
the Wrongs (Animals Straying on Highways) Act 1984 (Vic). The Act meant that farm owners LEGISLATION
were then responsible for their animals straying onto highways, thereby abrogating the
common law principle. Ultimately, Trigwell is an example of how the courts can be used by Wrongs (Animals Straying on Highways)
individuals to influence law reform, even if the outcome of the case is unsuccessful. Act 1984 (Vic)
Figure 5 Stray sheep resulted in a major accident
USEFUL TIP
An important key skill in Area of Study 2 of Unit 4 Legal Studies is to ‘discuss the
means by which individuals or groups can influence law reform, using examples’. This
means that you should consider the strengths and limitations of individuals and groups
as an influence on law reform. You should use specific examples from the real world of
individuals or groups influencing law reform through petitions, demonstrations, and the
use of the courts to support your statements, instead of merely explaining the role of
the individuals or groups in influencing law reform.
Lesson summary
Table 4 Summary of the influences on law reform
Explanation Strengths Limitations

Petitions A written document signed by • Convenient • Difficult to attain enough
a number of people demanding • Ministerial response required signatures to initiate reform
change from a person • Minister not required to
• Ability to raise awareness
or organisation. action any demands
• Needs to be a known topic
Demonstrations Public protest to a law or action, • A useful bargaining tool as it • Momentum fades quickly
undertaken by a large group causes disruptions • Can result in negative
of people. • Can raise awareness media attention
• Communicates collective • Inconvenient to organise
desire for change
The use of Utilising the courts to establish • Potential for new precedent • Requirement for standing
the courts new common law. to be set • Supremacy of parliament
• Parliament can codify • Time and cost factors
precedent
• Awareness can be raised about
an issue

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9B Questions
9B QUESTIONS

Question 1
Voting is the only way citizens can actually influence law reform.
A. True
B. False
Question 2
The most convenient way to influence a change in law reform is through:
A. using the courts.
B. petitions.
C. becoming prime minister.
D. demonstrations.
Question 3
demonstration petition
A occurs when a large number of people congregate in person and seek to bring attention
to a common issue.
Question 4
Petitions are inconvenient as petitioners have to doorknock and acquire physical signatures to validate the petition.
A. True
B. False
Question 5
How can individuals use the courts to influence reform? (Select all that apply)
A. Bring a case before the courts and in turn, give the courts an opportunity to set a new precedent
in a particular area of law.
B. Have public attention drawn to an unsuccessful outcome.
C. Launch litigation in an area of law they are not connected to.
D. Ask the courts nicely to persuade the prime minister to change the law.
Question 6
Which of the following is a common strength among petitions, demonstrations, and the use of the courts?
A. Convenience.
B. Useful bargaining tool.
C. Ministerial response required.
D. Ability to raise awareness.
Preparing for exams

Standard exam-style
Outline one way in which individuals or groups can influence law reform.

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‘Using the courts to influence law reform is almost impossible. It takes far too much money and time to bring
9B QUESTIONS
a case before them’.
Extended response
Question 9
Tick the box to indicate whether the following statements are strengths or limitations of demonstrations.

I. Demonstrations can cause disruption and therefore be an effective tool for people to have their
demands met swiftly.
II. If a successful demonstration is not immediately followed up by further action, momentum for
a cause will often fade.
III. Demonstrations with a large number of members can be good at garnering publicity.
IV. Demonstrations are difficult to organise and time-consuming.
Discuss how individuals and groups in Australia may successfully influence law reform through demonstrations.
Adapted from VCAA exam 2021 Section B Q1c
Question 11
Which of the following are strengths of petitions? (Select all that apply)
A. They are a convenient way to garner people’s support for an action without consuming their time.
B. They occur when a large number of people congregate and look to bring attention to a common issue.
C. They have the ability to cause disruption.
D. They must be responded to in the Petition Report by the relevant minister.
‘Petitions are the only real means by which individuals and groups can influence law reform. Demonstrations
cannot actually affect reform.’

In the year 2040, the Commonwealth Parliament passed an Act banning driverless cars. However, 85% of
Australians own driverless cars and do not support the change in law. Giuseppe believes the Act is wrong, and
has collated 500,000 signatures on an official parliamentary e-petition. As a result, the Act banning driverless
cars is repealed.
Explain the relationship between one reason for law reform and petitions.

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9C The role of media in law reform

• the role of the media, including social media, in law reform
9A 9B 9C 9D 9E 9F
Image: Andrey_Popov/Shutterstock.com
Have you ever wondered what shaped 4.2.3.1

your opinions on political and legal issues? The role of media in law reform
Whether you are actively aware of it or not, 4.2.3.1.1 The role of traditional media
your outlook on the legal system, reform,
and politics has been shaped by the media 4.2.3.1.2 The role of social media
you have consumed throughout your life.
Lesson introduction
The communication methods of information and news have been ever-evolving.
For centuries, information has generally been disseminated through print, such as in
newspapers. This form of communication is now considered traditional media. More
recently, social media has overtaken traditional media as the primary means by which
information is communicated amongst certain groups, mainly young people. These
social media sites include Instagram, Facebook, TikTok, and X (formerly Twitter).
There are numerous implications for this shift in media communication and how
law reform is affected.
The role of media in law reform 4.2.3.1

The primary function of the media in relation to law reform is to inform and
educate people about current contentious political and legal issues, as well as
debates in the public realm. Individuals, key stakeholders, and groups on one side
of a contentious debate may attempt to influence law reform through the media,
as community values can be shifted when people are educated about certain issues
or opinions. As a result, if sufficient shifts in public opinion about a debated matter
occur, parliament may be motivated to initiate law reform in order to respond
to community desires in law-making.
Traditional and social media have previously been able to educate the public and will
likely be able to continue to do so in the future. Subsequently, law reform is influenced
as the media can generate public pressure, compelling the government to act with
varying degrees of success.

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The role of traditional media 4.2.3.1.1

Traditional media refers to mediums such as television, radio, and newspaper
KEY TERM
9C THEORY
(in print and digital form) that disseminate information to the public. Traditional
media has historically set the political and legal agenda regarding law reform. Given Traditional media mechanisms for
the resources that media outlets possess, large-scale and deep investigations into law spreading information that began
reform can be particularly informative and directly prompt law reform. Programs, use prior to the 21st century, such as
such as ‘Four Corners’ by the Australian Broadcasting Corporation (ABC) and newspapers, magazines, television,
and radio.
‘60 Minutes’ by the Nine News Network, delve deep into contentious issues, and
on occasion, set the national law reform agenda itself. These investigations put LEGAL VOCABULARY
pressure on the government of the day to enact certain law reforms, as if they
Government of the day the political
do not act, they may incur negative press which could lead to a decline in public
party or coalition with a majority
support and therefore reduce chances of re-election. in the lower house of parliament.
REAL WORLD EXAMPLE
Commonwealth Bank under fire

In 2014, Four Corners, with Fairfax reporter Adele Ferguson, launched an investigation
into the Australian banking system titled ‘Banking Bad’. The episode summarised
information collected over a two-year investigation into the banking system, prompting
a royal commission into the banking sector, a move many members of parliament (MPs)
resisted for years prior (Hall, 2019).
The investigation examined, amongst other issues, a ‘sales-driven’ culture inside the Image: sebra/Shutterstock.com
Commonwealth Bank’s financial planning division. It exposed the tendency of some Figure 1 Traditional media remains largely
mortgage brokers to pursue profit ‘at all costs’, instead of advising consumers in their influential
best interest (ABC, 2014). The resultant three-volume final report issued in 2019 by
the Royal Commission into Misconduct in the Banking, Superannuation and Financial
Services Industry detailed numerous criticisms against the banking system and
prompted law reform.
For example, recommendation 1.2 suggested the implementation of a ‘best interests
duty’, which would ensure that mortgage brokers act in the best interests of the
intending borrower. The National Consumer Credit Protection Act 2009 (Cth) was then LEGISLATION
subsequently amended to include this recommended obligation.
National Consumer Credit Protection
Adapted from ‘How Banking Bad exposed CommInsure Conduct (Hall, 2019), ‘VIDEO: Banking Bad’ (Four Corners,
2014), and ‘Misconduct in the Banking, Superannuation and Financial Services Industry: Final Report’ (Royal Act 2009 (Cth)
Commissions, 2019)
Image: Nils Versemann/Shutterstock.com

Figure 2 The Commonwealth Bank was subject to a two-year Four Corners’ investigation
However, sometimes the law reform agenda is set in direct accordance with the
media’s interests, given the for-profit nature of media ownership in Australia. Issues
may be oversimplified or facts omitted. Therefore, media outlets may sometimes skew
information or present it in a manner that is not completely honest or free from bias
and therefore does not serve the interests of the community.

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REAL WORLD EXAMPLE
Murdoch monopoly
9C THEORY
News Corporation, referred to as News Corp, is an American based media corporation

founded by Rupert Murdoch and his father, Sir Keith Murdoch. In Australia, News Corp
controls over 100 physical and digital newspaper mastheads, including the Herald Sun,
Accuracy news.com.au, Daily Telegraph, and The Australian. Overall, 65% of the Australian
newspaper market was controlled by News Corp in 2016 (Campbell, 2021). This is in
conjunction with its 65% stake in Foxtel and ownership of shows such as Sky News.
The next largest controller of news content in Australia is Fairfax, which oversees TV
and newspaper outlets such as Channel 9, The Age, The Sydney Morning Herald, and the
Political bias Australian Financial Review (Campbell, 2021).
Figure 3 A news source with less political Such a large concentration of private, for-profit media in Australia may result in Australians
bias is more capable of providing accurate being persuaded to follow a narrative that is not in their interest, but in the interest of the
information corporations who own the newspapers. Having for-profit media corporations that will
expressly experience a monetary benefit as the result of one legal or political outcome, but
not another, creates a ‘conflict of interest’ (Muller, 2022). As a result, the biased influence
that media corporations such as News Corp possess is significant, affecting what issues
of law reform are to be on the national law reform agenda, and how they are presented.
Adapted from ‘Attacks on Dan Andrews are part of News Corporation’s long abuse of power’ (Muller, 2022)
and ‘How large is Rupert Murdoch’s reach through News Corp in Australia, old and new?’ (Campbell, 2021)
Table 1 Evaluating the role of traditional media in influencing law reform
• The government may be fearful of negative representations • Certain news outlets can have strong biases depending
in the media and are therefore more likely to reform the law on their ownership, causing them to disseminate misleading
following in-depth investigations exposing poor practice in information to the public, hence limiting the ability
certain areas. of traditional media to inform people of relevant issues.
• Traditional media outlets generally have the financial In Australia, there are a few major corporations that own
resources and political connections to investigate and report a vast majority of the newspapers and other media across
on contentious issues. This allows people to become informed Australia. Therefore, the biases of these large corporations
about political and legal issues that the news companies will likely influence high proportions of Australians,
choose to report on so they can make decisions when it comes including law-makers themselves.
to influencing law reform, such as when voting. • The biases present in traditional media organisations may
• Newspapers frequently conduct political surveys and polls, also lead to traditional media platforms using their influence
allowing politicians to understand the trends surrounding to push against law reform, resulting in the media acting
their popularity. This can help inform the decisions made to prevent law reform instead of presenting a platform to
by members of parliament (MPs) as, if they observe a steep encourage it. For example, in the lead-up to the Voice to
decline in their popularity, for example, they may rectify Parliament referendum, newspapers within the Murdoch
this issue by changing which policies they are supporting or media conglomerate were accused of pushing a biased
introducing new bills in parliament to provoke public support. narrative catering to the ‘No’ campaign (Fielding, 2023).
They will do so in order to remain in power as, under the If large proportions of the Australian public consumed this
system of representative government, if a politician loses media, then the Voice’s success could have been stifled,
their public support they also may lose their seat in parliament. limiting law reform as no constitutional change occurred.
• Traditional media, such as newspapers, remain accessible to • Traditional media may sensationalise certain events in order
people of all generations in Australia, particularly to older to gain attention, leading to the oversimplification of news
generations who may not use social media. This ensures all and events. This may result in the spread of misinformation
generations can stay informed, empowering individuals to as people may not bother to read beyond the eye-catching
make informed voting decisions, and ultimately influencing title, believing they gain the full story from this single title.
the success of policies in parliament. This can reduce the level of meaningful influence that
traditional media has on law reform.
• Newspapers carry a cost, meaning not everybody will be able
to purchase them or be inclined to purchase them, especially
younger people.
LEGAL VOCABULARY
Representative government a system
in which members of parliament are
elected by the people of a community
or nation to best represent the needs
and views of those people.

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The role of social media 4.2.3.1.2

Social media has largely become the dominant means by which information is
KEY TERM
9C THEORY
instantaneously communicated. It has meant that individuals and groups can
attempt to gather support for an issue themselves, rather than having to wait for Social media mechanisms for sharing
the mainstream media to capture the story, hence amplifying community voices. information used in the 21st century,
Moreover, social media campaigns can assist politicians in garnering support for involving digital applications and
websites such as Facebook, YouTube,
a particular reform to enhance its popularity come election time. However, social
Instagram, and X (formerly Twitter).
media’s short-form content and the likelihood of users only consuming content
that appeals to their views means that facts are rarely presented fully and in an
unbiased way.
Social media has an international reach, where people on platforms such as TikTok
may be able to spread awareness of global issues, such as climate change and the
refugee crisis. This is especially applicable to younger people, who are less likely
to consume traditional media. Therefore, people from across the world can share
their perspectives with Australian people about international issues. This may
encourage people in Australia to learn about problems affecting the whole world.
It also may enable people in Australia to learn about law reform that is occurring Image: Cristian Dina/Shutterstock.com
in other countries, prompting citizens to desire their representatives to enact Figure 4 There are various forms social media
similar law reform. can take
DEEP DIVE
The consequences of echo chambers

In news and media, echo chambers are situations in which people only hear opinions of
one type, which generally reinforce an individual’s existing beliefs. This is a system without
rebuttal. Echo chambers therefore do not equally present the facts of the situation, but
rather, only convey information from one side of the debate. Subsequently, individuals may
hold certain opinions about contentious political and legal issues based on the repeated,
biased presentation of an argument that they constantly receive from several sources of
social media. LEGAL VOCABULARY
Echo chambers occur easily in social media because algorithms tend to highlight content Age of criminal responsibility
for an individual to see based on the content they have previously interacted with. This the age at which the law considers
leads an individual to view, and likely react to, that content again. Therefore, the cycle a child capable of understanding
continues of social media amplifying the same content and opinions repetitively. The their wrongful actions and therefore,
same also may occur in traditional media, when people purchase newspapers that align the age at which a child can face
with their political views. criminal charges.
REAL WORLD EXAMPLE
Age of criminal responsibility raised

In 2020, a range of Aboriginal and Torres Strait Islander organisations, in conjunction with
human rights groups and other non-governmental organisations, came together to push
every single state, territory, and federal government to change the laws and raise the age of
criminal responsibility from 10 years old to 14 years old.
The campaign has gained traction through social media as #raisetheage was shared across
various sites, such as Instagram. Tens of thousands of people have joined the campaign,
together lobbying politicians to reform the law and hold events to raise awareness for
their goal.
As a result, the Victorian Government announced that children aged 10 and 11 will not be held Image: Daniel Holking/Shutterstock.com
criminally responsible for their actions by the end of 2024, with plans to increase the criminal Figure 5 Children as young as 10 years old
can be arrested and charged with a crime as
age of responsibility to 14 by 2027.
of 2023, however by 2024 this law will likely
Adapted from ‘Victoria to raise the age of criminal responsibility to 12, youth advocates push for 14’ (Willingham, 2023) be amended

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Table 2 Evaluating the role of social media in influencing law reform
9C THEORY
• Social media campaigns can help assure governments that • Just as social media campaigns can push for the law to be
there is popular support for a particular reform come election reformed, so too can campaigns push against law reform,
time, therefore increasing the likelihood of parliament resulting in social media being utilised to prevent law reform
adopting the reform being called for. instead of encouraging it.
• Social media enables communities and groups to gather • Social media algorithms tend to highlight content for an
support for an issue themselves, rather than having to individual to see based on the content they have previously
wait for the mainstream media to capture the story, hence interacted with, meaning people are less likely to be exposed
amplifying community voices. to alternative opinions. This can sway people’s views on areas
• Social media can allow individuals to share their personal of law reform and may lead to uninformed decisions that
stories or images easily, which can then attract attention and influence law reform because people are not made aware of the
inspire people to begin campaigning for legislative change other side of a debate through social media.
in light of more accessible, personal anecdotes being shared. • Parliament will normally only make legislative changes
• Social media allows people to access information from all if it is on their political agenda. Therefore, regardless
over the world in an instant. Therefore, the law reforms of how much traction a proposed law reform receives on
created by other countries or the global issues facing society social media, the government has the final determination
can be shared through social media, encouraging people in on the law reform.
Australia to campaign for law reform. This may increase • Anyone can post on social media and claim it to be ‘news’
the likelihood of parliament adopting a reform when regardless of whether the information being disseminated is
Australians, as well as the broader international community, factual or whether the person who posted has the educational
support a certain policy shift. background to be able to report on current affairs. Complex
• Many MPs have social media and can, therefore, directly events can also be oversimplified into an infographic or
engage with constituents through their online platforms, short-form video on social media, with people not receiving
such as Instagram and X (formerly Twitter), by making full information. People may therefore base their votes on
comments back to users. This can allow for policymakers to certain law reform issues, such as a referendum, on lies that
gauge the views and values of members of their electorate. people on social media have shared as facts.
Therefore, parliamentarians may be able to create policies • On social media, graphic images or videos may be shared
that better reflect the desires of those in the community they more easily than in traditional media where there are greater
were elected to represent. restrictions and censorship on the kind of content that can
• Social media is free and easily accessible for all to use, be shared. As a result, people may become desensitised to
meaning information can be more readily shared. certain issues, resulting in individuals not considering these
issues when campaigning for law reform or casting a vote,
as they do not place importance on it.
LEGAL VOCABULARY USEFUL TIP

Constituent the people politicians An important key skill in Area of Study 2 of Unit 4 Legal Studies is to analyse the role
have been elected to represent. of the media in law reform ‘using examples’. This means that, in an extended-response
Electorate a geographical area question about the media, you should explore the ways in which the media can influence
comprised of approximately 110,000 law reform, which can include consideration of the strengths and limitations of the media
voters represented by a member of as an influence on law reform. You should use specific examples from the real world of the
the Commonwealth Parliament. media influencing law reform to support your statements, instead of merely explaining the
Referendum a compulsory national role of the media.
Lesson summary
• The role of the media is to communicate information about political, legal,
and social issues to the public.
• The media aims to inform Australians about current debates and contentious
issues, therefore allowing them to cast an informed vote and influence law
reform if there is a problem in society they are particularly passionate about.
However, both types of media are not always successful in doing so.
• There are two main types of media: traditional media and social media.

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Table 3 Evaluating the media in influencing law reform
9C QUESTIONS
• The media, through its broad reach, can gain a lot of support • Issues presented in the media may be oversimplified, resulting
for a particular change in the law and assure politicians of in people not being aware, or being misguided, regarding the
the popularity of reform. law reform that is required.
• Investigative journalism can put pressure on the government • Members of parliament may only reform the law if it is on their
to reform the law. political agenda.
• Social media is free and easily accessible for all people. • For-profit media organisations may present biased
information, leading voters to form opinions about law
reform based on misguided information.
• Information related to law reform shared in the media
may lead to factually incorrect information being spread,
particularly on social media. This may make it difficult for
parliament to reform the law when the community is against
such reform due to being misinformed.
9C Questions
Question 1
A role of the media in law reform is to:
A. persuade people of a narrative that is against their interests.
B. misinform people of cases.
C. educate people on contentious political, legal, and social issues so they can influence their
parliamentarians to alter the law to suit their beliefs.
Question 2
media people
Sometimes the law reform agenda is set in direct accordance with the interests of the , given the
for-profit nature of media ownership in Australia.
Question 3
Which of the following are strengths of the media in influencing law reform? (Select all that apply)
A. The media, through its broad reach, can gain a lot of support for a particular change in the law and assure
politicians of the popularity of reform.
B. Certain news outlets can have strong biases depending on their ownership, causing them to disseminate
misleading information to the public.
C. Traditional media may sensationalise certain events in order to gain attention, leading to the
oversimplification of news and events.
D. The government may be fearful of negative representations in the media and are therefore more likely
to reform the law following in-depth investigations exposing poor practice in certain areas.
Question 4
Social and traditional media always outline the facts of the situation in a fair, unbiased,
and informative manner.
A. True
B. False

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Question 5
Social media may be beneficial for law reform as:
9C QUESTIONS
A. many MPs have social media and can therefore, directly engage with constituents through their online
platforms, allowing them to gain insight into the views and values of their electorate or electoral division
in relation to law reform.
B. anyone can post on social media and claim it to be ‘news’ regardless of whether the information being
disseminated is factual.
Question 6
Law reform is only inspired by traditional media; social media has no influence on parliament.
A. True
B. False
Preparing for exams

Standard exam-style
Outline one role of the media in law reform.
‘Four Corners’ by ABC produced a report on the adverse impacts of gambling and Australian sport in June 2023.
Imagine that, following this report, widespread anti-gambling demonstrations occurred across Australia. Fearing
the political ramifications of not responding to the issues raised by the report and the demonstrations, members
of the government of the day within the Commonwealth Parliament all vote to approve a law prohibiting all
sports gambling.
Describe one way in which the media can influence law reform.
Extended response
Use your answers to questions 9 and 10 to support your response to question 11.
Question 9
Which of the following is an example of the traditional media influencing a change in the law?
A. The Four Corners investigation titled ‘Banking Bad’.
B. The #RaiseTheAge campaign.
C. Media ownership is concentrated in a few corporations.
Question 10
Tick the box to indicate whether the following statements are strengths or limitations of the role
of traditional media in law reform.

I. Traditional media, such as newspapers, remain accessible to people of all generations
in Australia, particularly to older generations who may not use social media.
II. Parliament may be fearful of negative representations in the media and is therefore more likely
to reform the law following in-depth investigations exposing poor practice in certain areas.
III. Traditional media may sensationalise certain events in order to gain attention, leading to the
oversimplification of news and events.
IV. Traditional media outlets contain inherent biases.

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Discuss the ability of traditional media to influence a change in the law. In your answer, provide one recent
9C QUESTIONS
example of the media influencing legislative change.
Question 12
Tick the box to indicate whether the following statements are strengths or limitations of the role of the media
in law reform.

I. Social media campaigns can assure politicians that there is popular support for a particular reform
come election time, therefore increasing the likelihood of parliament adopting the reform being
called for.
II. Social media enables communities and groups to gather support for an issue themselves,
rather than having to wait for the mainstream media to capture the story, hence amplifying
community voices.
III. Certain news outlets can have strong biases based on their ownership, causing them
to disseminate misleading information to the public.
IV. Many complex events may be oversimplified into an infographic or short-form video on social
media, with people therefore not receiving full information about a contentious issue.
‘The media is an effective tool for influencing law reform.’

Question 14
Tick the box to indicate whether each of the following statements are strengths of the media
or demonstrations in influencing law reform.
Statement The media Demonstrations

I. Corporations, such as News Corp, generally have the financial resources and political
connections to investigate and report on contentious issues.
II. Social media campaigns can help assure politicians that there is popular support for
a reform come election time.
III. Demonstrations have the ability to cause disruption and can be an effective tool for
people to have their demands met swiftly, as exemplified by workers’ strikes.
IV. Given the representative nature of parliament, parliamentarians should theoretically

pay close attention to demonstrations.
‘The media is the only way law reform is influenced by individuals and groups.’
Discuss the extent to which you agree with this statement. In your response, refer to one means by which
individuals can influence law reform.

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9D The Victorian Law

Reform Commission
• the role of the Victorian Law Reform Commission and its ability to influence
law reform
• one recent Victorian Law Reform Commission inquiry relating to law reform
in the civil or criminal justice system
9A 9B 9C 9D 9E 9F
Image: Maria Dryfhout/Shutterstock.com
At the end of each term, you will often

receive a school report detailing your marks
and feedback from your teachers. These 4.2.4.1 The role of the Victorian Law 4.2.4.3 Case study – VLRC inquiry
reports can provide helpful insight into Reform Commission (VLRC) into Inclusive Juries
areas you are excelling in and others that
may need some extra work. Similarly, the 4.2.4.2 Case study – VLRC inquiry 4.2.4.4 The ability of the VLRC
into Stalking to influence law reform
Victorian Law Reform Commission (VLRC)
provides reports and recommendations to
the Victorian Parliament about different
areas of law that may need to be reformed
and further developed.
Lesson introduction
In a rapidly evolving society, it can be difficult for members of parliament to track,
monitor, and implement law reform whilst simultaneously completing their other
parliamentary duties. Therefore, Commonwealth, state, and territory governments
establish law reform bodies that can objectively inform them about the need for
changes to various laws.
Established in 2000, the Victorian Law Reform Commission (VLRC) is Victoria’s
Image used with permission from Victorian Law main, independent law reform body and provides the Victorian Government
Reform Commission
with insight into areas of potential law reform. The commission is central to the
Figure 1 The Victorian Law Reform Commission
development of a fair, just, and inclusive legal system for all Victorians. Despite
funding for the VLRC coming from the Victorian Government and the Victorian
KEY TERM Legal Services Board, it remains impartial and is not politically affiliated. The VLRC
is tasked with investigating and reporting on a wide range of areas that can include
Victorian Law Reform Commission
matters concerning both the criminal and civil justice systems. Through the VLRC,
(VLRC) the central, independent
law reform body in Victoria which the community can influence law reform as consultation with the public is a core
investigates a wide range of matters, component of its investigatory processes.
concerning both the criminal and
civil justice system, and provides
recommendations to the Victorian USEFUL TIP
Parliament about areas of potential You can use the acronym ‘VLRC’ in your answers, however, you must write out the full
law reform. name of the commission, ‘Victorian Law Reform Commission (VLRC)’, the first time
it is mentioned in your answer before doing so. The full name and bracketed acronym
must be written for each question when you are referring to the VLRC more than once
across different questions in a SAC or the VCAA end-of-year exam.
418 Chapter 9: Law reform

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The role of the Victorian Law Reform

Commission (VLRC) 4.2.4.1
9D THEORY
The main role of the VLRC is to investigate, report, and make recommendations
on issues referred to it by the Victorian Attorney-General. The Victorian
Attorney-General issues a terms of reference to the VLRC to provide information
on matters that need to be researched and investigated. Although, in some
circumstances, the VLRC also has the power to autonomously investigate minor
issues without a terms of reference through community law-reform projects,
so long as adequate resources are available. The VLRC is a statutory authority that
obtains its powers from a statute, specifically the Victorian Law Reform Commission LEGISLATION
Act 2000 (Vic). Section 5 of the Victorian Law Reform Commission Act 2000 (Vic)
sets out the various roles of the commission. Victorian Law Reform Commission Act
2000 (Vic)
Table 1 The roles of the Victorian Law Reform Commission (VLRC)
Role Explanation
LEGAL VOCABULARY
Receive and analyse the The VLRC must examine, report, and provide
Attorney-General the leading law
Victorian Attorney-General’s recommendations about matters referred to the officer of the nation, or state, who
terms of reference commission by the Victorian Attorney-General. is a member of parliament, and acts
A terms of reference document contains as the primary legal advisor to the
information about: government in regard to a range of
• the scope of the inquiry matters concerning the legal system.
• the particular issue or policy being investigated Terms of reference a document that
details the issues that need to be
• the final report due date.
investigated, as well as the specific
scope and purpose of an inquiry.
Investigate minor community The VLRC has the power to investigate and provide
legal issues recommendations to the Victorian Attorney-General
about minor issues within broader society without
a terms of reference. It may conduct such research
and investigations as long as it does not require a
significant amount of resources. Such investigations
are known as community law reform projects. These
projects still have a terms of reference, however,
these terms are established by the VLRC itself,
as opposed to the Victorian Attorney-General.
Conduct inquiries In response to the Victorian Attorney-General’s

terms of reference or as part of a community
law reform project, the VLRC must undertake a
number of different tasks to thoroughly examine
and investigate an issue. By doing so, the VLRC can
provide recommendations for law reform relating
to the subject matter. VLRC inquiries involve:
• initial research and consultations regarding
the matter outlined in a terms of reference.
• publishing a consultation paper, engaging with
relevant experts, and receiving and reviewing
submissions from the community.
• preparing a report with the recommendations
and presenting it to the Victorian
Attorney-General.
Once the final report is delivered to the Victorian

Attorney-General, they must then table it in the
Victorian Parliament, at which point the report’s
recommendations are considered and potentially
enacted through law reform.
Continues →

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Table 1 Continued
Role Explanation
9D THEORY
Monitor and coordinate The VLRC is responsible for monitoring law

law reform reform activity throughout Victoria and can
request the Victorian Attorney-General to refer
a matter of law reform to the commission.
Provide educational programs The VLRC provides educational material to the

community to inform individuals about its projects,
general work, and other areas of relevant law.
These resources can be found online in multiple
formats and are accessible to the entire community.
Additionally, the VLRC offers presentations to
schools and has tailored student-specific resources
that can be found on its website.
USEFUL TIP
The VCE Legal Studies Study Design indicates that you only need to know one
recent Victorian Law Reform Commission (VLRC) inquiry relating to law reform
in the civil or criminal justice system. This is your choice, so pick something you are
interested in or one that your teacher suggests is appropriate. This lesson provides
two examples of VLRC inquiries, but you only need to know one of the case studies
in detail for the exam.
Initial research Consultations

A project is initiated
and consultations and submissions
The VLRC will receive a terms of reference The commission will research the A consultation paper providing contextual
from the Victorian Attorney-General relevant matters and begin the information and investigatory questions is
outlining the scope of the project or the consultation period. It will also form published, alongside a call for community
VLRC will begin its own community law a consultative committee that provides submissions. Extensive consultations are
reform project. advice to the commission about the held with experts, affected parties, and
topics under examination. those who have a special interest in the
matter. Additionally, submissions from
the community, which can be submitted
by anyone in either digital, written, or oral
form, are received and reviewed.
Government response
Tabling Report
and changes to the law
The Victorian Government has the option The Victorian Attorney-General must The commission prepares a report,
to implement the recommendations and table the report in parliament within 14 including the suggested recommendations
make amendments to the law. However, sitting days of receiving the report. At this for law reform, and presents it to the
it is not obliged to do so and there is no point, the report is also published on the Victorian Attorney-General.
timeline in which action must be taken. VLRC website and is available in hard
copy format.
Figure 2 The process involved in VLRC projects

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Case study – VLRC inquiry

into Stalking 4.2.4.2
9D THEORY
In February 2021, the VLRC received a terms of reference from the Victorian CONTENT WARNING This section
Attorney-General to investigate Victoria’s response to stalking, harassment, explores content that is sensitive in nature,
and similar conduct, specifically in the context of non-family violence stalking. relating to stalking.
Stalking is considered behaviour or actions that have the potential to harm a victim’s
health, both mentally and physically. If left unaddressed, stalking can result in LESSON LINK
severe offending, such as serious violence, or in extreme cases, homicide or suicide. You will learn more about royal
Around one in six women and one in 15 men are affected by stalking. As a result commissions in 9E Royal Commissions.
of technological advancements, types of stalking behaviour have also evolved and
can now be conducted without physical proximity to the victim.
Moreover, stalking behaviours occur in both family violence and non-family ‘While stalking affects many members
violence contexts. Whilst specialist approaches have been developed to address of society, it is a gendered crime and
stalking in family violence contexts, less development has occurred to address abuse of human rights most commonly
perpetrated by men against women
stalking in non-family violence contexts. Therefore, this report had a stronger
and children. It is both widely prevalent
focus on how the justice system responds to non-family violence stalking. and completely preventable. Unlike
family violence, there is minimal policy
Terms of reference infrastructure to hold perpetrators
The main task of the VLRC was to investigate and report on Victoria’s legal responses of stalking accountable…Therefore,
structural change is required to identify
to stalking, harassment, and similar conduct, including the statutory framework
victim-survivors at all entry points in
concerning the Personal Safety Intervention Order (PSIO) system. Specifically,
social services systems and provide timely
the report intended to detail recommendations for law reform regarding non-family services for victim-survivors to meet their
violence stalking. Furthermore, barriers in current legislation that restrict the diverse needs.’
effectiveness of responses to stalking, harassment, and similar conduct were also to —Australian Association of Social Workers
be analysed, with concern for victim’s safety and wellbeing acting as the overarching
and utmost important consideration of the inquiry. Though stalking is committed by
‘A recurring theme from clients reflects
individuals of all genders, it was also requested that the VLRC consider the fact that
a perception that police have not taken
‘most perpetrators of stalking are men, and most victims of stalking are women’. their complaints seriously. Clients
In conducting a review of stalking, harassment, and similar conduct, the terms frequently report police declining to
take a statement, or declining to charge
of reference required the VLRC to consider:
the person, usually on the grounds that
• legislation concerning stalking, harassment, or similar conduct, notably the there is insufficient evidence. The issue
Personal Safety Intervention Orders Act 2010 (Vic) and how it may differ from of insufficient evidence often arises in the
Family Violence Safety Notices and Family Violence Intervention Orders under instance of cyberstalking, whereby the
the Family Violence Protection Act 2008 (Vic). person engaging in stalking behaviour
has used a fake account, or has used an
• barriers to reporting for victims of stalking and how the law can further promote application such as Snapchat where the
the safety and wellbeing of victims. evidence is immediately lost.’
• sentencing practices and available sentencing options for stalking offenders. —Springvale Monash Legal Service
• the existing criminal offences that apply to stalking, harassment, and similar
conduct under the Crimes Act 1958 (Vic) and the evidence required to establish ‘The LIV notes that stalking behaviour
each offence. must be adequately distinguished from
family violence, as it may consist of lawful
The VLRC was also asked to consider the Victorian Government and justice system’s
acts intended to intimidate or arouse fear
responses to the findings in the 2016 Royal Commission into Family Violence. in victims and is not generally predictable
It was also asked to conduct its investigation in consideration of the 2019 Victorian or triggered by certain events.’
Royal Commission into the Mental Health System. The terms of reference stated —Law Institute of Victoria
that an interim report was due by 31 December 2021, with the final report due
on 30 June 2022.
Figure 3 Examples of submissions received
for the inquiry into Stalking (VLRC, n.d.)
LEGISLATION
Personal Safety Intervention Orders

Act 2010 (Vic)
Family Violence Protection Act 2008 (Vic)

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The investigative process

The VLRC conducted an extensive examination of the matters within the terms
WANT TO KNOW MORE?
of reference. During this process, it received 115 written submissions and 254
9D THEORY
You can find out more about the responses to an online form requesting people who have experienced stalking
VLRC’s Stalking inquiry by searching
to report their views on the issue. The majority of the submissions were from
‘Stalking inquiry VLRC’ and clicking
community members detailing their personal experiences with stalking, however,
the relevant webpages. On these
webpages, you can learn more organisations such as the Australian Association of Social Workers, community legal
about the investigative process centres, and the Law Institute of Victoria, also provided submissions. Moreover,
undertaken by the VLRC by reading consultations were conducted with 36 different parties and stakeholders, such
the other submissions and viewing the as the eSafety Commissioner, the Judicial College of Victoria, and the Victorian
transcripts of the conducted hearings. Aboriginal Legal Service.
Report and recommendations

The VLRC produced an interim report on 22 December 2021, which was tabled in
the Victorian Parliament on 6 April 2021. The findings of the interim report were
primarily concerned with the general police response to stalking and how earlier
intervention into stalking situations may have alleviated the overall interaction
between victims, offenders, and the criminal justice system. Following the completion
of the full investigation, the VLRC produced its final report with 45 recommendations
for law reform. Some of the key recommendations are provided in Figure 4.
Recommendations for law reform

Tick/Cross Recommendations
Reform victim support services and ensure victim survivors

of non-family violence stalking receive the necessary support
in an efficient, ongoing, and practical manner.
Reform the Personal Safety Intervention Orders Act 2010 (Vic),

including establishing a category of ‘protected witnesses’ in
the Act to prohibit an accused from directly cross-examining
protected witnesses. Additionally, the report recommended
amending this Act to introduce a requirement that the
courts must order Victoria Legal Aid for unrepresented
applicants or protected witnesses.
Reform the stalking offence in section 21A of the Crimes

Act 1958 (Vic) to enhance its clarity and practicality.
Ensure frontline and specialist Victoria Police members

are effectively trained to investigate stalking charges
as per section 21A of the Crimes Act 1958 (Vic), as well
as improving their capabilities in responding to non-family
violence cyberstalking.
Provide relevant training to judicial officers and court staff

to ensure they can appropriately address and manage cases
concerning cyberstalking and non-family violence stalking.
Provide resources and support public education involving

non-family violence stalking and cyberstalking.
Figure 4 Examples of recommendations made by the VLRC in relation to its Stalking inquiry
The final report was tabled in parliament on 21 September 2022. As of October 2023,
the legislative recommendations are yet to be implemented.

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Case Study – VLRC inquiry into

Inclusive Juries 4.2.4.3
9D THEORY
In 2020, the Victorian Law Reform Commission (VLRC) established a community
LESSON LINKS
law reform project that sought to review, investigate, and report upon the accessibility
of jury participation for those who are deaf, hard of hearing, blind, or have low You learnt about juries in criminal and
vision. Currently, those who are deaf, hard of hearing, blind, or have low vision civil cases in 2E Judges, magistrates,
and juries in a criminal case and
are unable to serve on Victorian juries. The United Nations has found, in several
5D Judges, magistrates, and juries
instances, that Australia has breached its duties under the Convention on the Rights in a civil dispute.
of Persons with Disabilities (CRPD) by denying such demographics the opportunity
to participate in civic life and associated duties.
The Juries Act 2000 (Vic) does not explicitly prohibit those who are deaf, hard of LEGISLATION
hearing, blind, or have low vision from serving as jurors. However, the Act does state
Juries Act 2000 (Vic)
that one is ineligible if they are ‘unable to communicate in or understand the English
language adequately’ or have ‘a physical disability that renders the person incapable
of performing the duties of jury service’. Accommodations, such as an Auslan
‘A blind person's education and ability
interpreter or a screen reading program, may be utilised to enable an individual to
to assess facts obtained through hearing
meet the requirements, however, there are no obligations on the courts or the Juries
testimonies and having print read to them
Commissioner to ensure such adjustments are provided. Moreover, only 12 jurors is equally equipped to contribute to their
can be present in the jury room according to an old common law principle, known twelfth of the decision making process
as the ‘13th person rule’, meaning a juror cannot be assisted by a non-juror, such as in coming to a verdict.’
a communication assistant, during deliberations. This further renders some people, —Blind Citizens Australia
who struggle to communicate without an interpreter, ineligible to partake in jury duty.

Therefore, through its processes, the VLRC considered how juries can be made ‘It upsets me when people assume that
more inclusive through legislative amendments. Additionally, the VLRC considered because you have one disability it stands
practices within the courtroom that can be modified to enable those who are deaf, to reason that you will not have the ability
hard of hearing, blind, or have low vision to participate in jury duty in Victoria. to think or clearly plan alternate ways of
achieving a suitable outcome’
Terms of reference —Online survey submission
The main task of the VLRC was to ‘examine the current legal framework to consider
whether legislative change is required, what practical supports would be necessary, ‘An evolving feature of the jury system
and whether there are specific circumstances in which such jury service should since the time of the Magna Carta has
been that of a ‘trial by one’s peers’.
be limited’.
This concept is a cornerstone of the jury
In conducting a review of the jury service system, the terms of reference required system in Contemporary Australia, but
the commission to review: the 384,000 Australians who are blind or
have low vision are rarely, if ever, given the
• the current legislation and practices in both local and international jurisdictions. opportunity to exercise their role as ‘peers
• existing statistics and practices related to the disqualification or excusal of of the accused’ by serving on a jury.’
people who are deaf, hard of hearing, blind, or have low vision from jury service. —Vision Australia
• the existing ‘13th person’ common law principle.

• discrimination laws and human rights in Victoria. ‘Jurors with adversaries with their
sight/hearing should be recognised
• availability of resources and potential requirements for the training of judicial
as ordinary persons who go through life
officers and court staff. like any other person. Whether someone
• the need for a fair trial and credible jury system. has a disability or not, everybody goes
through life with struggles, tribulations
The terms of reference stated the commission should not consider: and different outlooks. Would it not best
• whether individuals who cannot understand or communicate in English at all demonstrate community values and
should be able to serve on juries. Therefore, the scope of its inquiry was limited inclusivity if those within the community
to considering the restrictions on jury service for people who are deaf, hard of be represented?’
—Madison (Community member)
hearing, blind, or have low vision, not restrictions to people who cannot speak
English or have difficulties communicating for other reasons.
Figure 5 Examples of submissions received for

the inquiry into Inclusive Juries (VLRC, n.d.)

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The VLRC conducted an extensive examination of the matters within the terms
of reference. During this process, it received 14 written submissions from a range
9D THEORY
of individuals, organisations, and institutions, as well as 27 survey responses from

community members. Examples of parties who entered submissions include
Blind Citizens Australia, Victoria Legal Aid, Youth Disability Advocacy Service,
Vision Australia, Juries Victoria, and the Supreme Court of Victoria. Additionally,
29 consultations were held with a range of core individuals and bodies, some of
which also made submissions, including the Victorian Equal Opportunities and
Human Rights Commission, the Office of Public Prosecutions Victoria, Deaf
Victoria, and community participants.
Submissions from the community were invited and received in both hardcopy,
electronic, and audio formats. Individuals were also able to remain anonymous
in their submissions and there was an option to provide input via an online survey.

Following its investigations, the VLRC provided 53 recommendations for law
WANT TO KNOW MORE?
reform with the intent of improving the inclusivity of Victorian juries. Some of
You can find out more about the the key recommendations are provided in Figure 6.
Inclusive Juries inquiry by searching
‘Inclusive Juries inquiry VLRC’ and
clicking the relevant webpages.
On these webpages, you can learn
more about the investigative process
undertaken by the VLRC by reading
the other submissions and viewing the Recommendations for law reform
transcripts of the conducted hearings.
You can find out more about the
Victorian Law Reform Commission
Making relevant, physical adjustments available in the jury
and recent inquiries by searching
process, such as Auslan interpreters, support persons,
‘Current Projects VLRC’ and clicking hearing loops, and Braille material, to those jurors who may
the relevant webpage (VLRC, n.d.). need such assistance.
Making amendments to the Juries Act 2000 (Vic) so that

individuals can utilise certain adjustments to participate
in jury service. This includes amending the ‘13th person rule’
to make exceptions for Auslan interpreters and support
persons being present in the jury room when working
alongside jurors.
Allowing the judge presiding over a case to determine

whether an individual can serve on jury duty after they
consider a range of factors, such as the evidence in the trial
and the ability of the individual to engage with such material.
Auslan interpreters and support persons should be required

to undertake training to work with jurors and follow a code
of conduct, providing an oath to the court.
Disability awareness training should be required for judges,

lawyers, and court staff who work with juries.
Figure 6 Examples of recommendations made by the VLRC in relation to its Inclusive Juries inquiry
The final report was tabled in the Victorian Parliament on 16 May 2023.
As of October 2023, the legislative recommendations are yet to be implemented.
The ability of the VLRC to influence

law reform 4.2.4.4
As Victoria’s leading law reform body, the VLRC can successfully initiate and facilitate
the process of law reform. However, there are certain factors that limit the VLRC’s
ability to do so, including the scope of its inquiries, cost and time restraints, and the
implementation of its recommendations.

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Table 2 Evaluating the ability of the Victorian Law Reform Commission to influence law reform
9D THEORY
• As the terms of reference are received from the Victorian • The government is not obliged to consider or implement
Attorney-General, who is a member of parliament (MP) any of the recommendations provided by the VLRC.
and is an official advisor to the government, the subsequent • The VLRC is limited by the terms of reference. It can only
recommendations are more likely to be considered and conduct research and make suggestions for law reform
adopted by parliament. within the areas outlined by the Victorian Attorney-General.
• The VLRC is able to independently initiate projects Although the VLRC is able to investigate matters without
and investigate matters concerning minor community a terms of reference provided by the Attorney-General,
legal issues without a terms of reference from the these can only be investigations concerning minor issues,
Victorian Attorney-General. This enables it to provide which limits the scope of matters that can be investigated,
recommendations for law reform in areas that are specific to and the commission’s subsequent impact on law reform.
the needs of certain groups and communities. For example, • The VLRC inquiries can be very time consuming due to the
the inquiry into Inclusive Juries was a community law nature of the processes used. The time spent consulting
reform project. with relevant parties, engaging with the community, and
• Through its processes, the VLRC invites submissions from the reviewing submissions is necessary to provide informed
community and consults various parties who have expertise recommendations, however, it can result in a slow law
or an interest in the subject matter. Both the Stalking and reform process.
Inclusive Juries inquiries received a number of community • Both the Stalking and Inclusive Juries inquiries are yet
submissions, and consultations were held with various expert to have their recommendations implemented despite the
bodies throughout the investigation process. Therefore, as reports being tabled late in 2022 and early 2023, respectively,
parliament’s law-making is centred around its representative hence demonstrating the time-consuming nature of potential
nature, the government is more likely to respond to law reform law reform.
if there is widespread concern amongst the community to
• Projects can be costly. Given the amount of resources
ensure laws reflect the views and values of the majority.
available and funding provided, cost factors may limit the
Politicians may also be motivated to adopt recommendations
scope of VLRC investigations.
for law reform in areas where there is high community support
for change in order to maintain voter endorsement. • The VLRC can only provide law reform recommendations
for Victorian law and not for matters regarding
• The VLRC can thoroughly investigate an area of law and
Commonwealth legislation.
provide informed recommendations for legislative reform as
it engages with people who are experts on the subject matter
it is investigating. This can promote productive law reform
as amendments to legislation are more likely to address
social issues and community needs.
• The VLRC is independent of political parties and is able to
review laws on controversial matters objectively and deliver
a set of recommendations for law reform to parliament based
on its in-depth research, expert opinions, and the views of
those who make submissions.
• Since its establishment in 2001, the VLRC has completed
46 inquiries and 75% of the total recommendations have been
implemented in part or in full. This suggests that the VLRC
is successful in its ability to fulfil its role and responsibility
to advise the government on potential areas of law reform.
USEFUL TIP
ability of law reform bodies to influence a change in the law, using recent examples’.
This table shows the strengths and limitations of the Victorian Law Reform Commission
(VLRC) in influencing law reform, with reference to the recent examples covered in this
lesson. Therefore, this can help you answer higher-mark questions requiring an evaluation
of the ability of the VLRC to influence a change in the law, using a recent example.
Remember that you only need to know one example of a VLRC inquiry. This lesson and
the above table provide two options.

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Lesson summary
9D QUESTIONS
The Victorian Law Reform Commission is Victoria’s leading, independent law

reform body. It has multiple roles, including:
• responding to the Victorian Attorney-General’s terms of reference
• investigating minor community legal issues
• monitoring and coordinating law reform
• providing educational programs.
Two recent VLRC projects include its inquiry into Stalking (2022), which was
directed by a terms of reference received from the Victorian Attorney-General, and
its inquiry into Inclusive Juries (2023), which was a community law reform project.
The ability of the VLRC to influence law reform can depend on a range of factors,
including parliament’s willingness to adopt the provided recommendations, as well
as time and resource constraints.
9D Questions
Question 1
The Victorian Law Reform Commission is Victoria’s main, independent law reform body that provides
the Victorian Government with insight into areas for potential law reform.
A. True
B. False
Question 2
Which of the following are roles of the VLRC? (Select all that apply)
A. Monitoring and coordinating law reform
B. Responding to the prime minister’s requests for new federal laws
C. Investigating minor community legal issues
D. Responding to the Victorian Attorney-General’s terms of reference
E. Facilitating law reform activity in New South Wales
F. Providing educational programs
Question 3
Tick the box to indicate whether each of the following tasks are part of the process or not part of the process
VLRC utilises in its inquiries.
Task Part of the process Not part of the process

I. Publishing a consultation paper that provides contextual information,
investigatory questions, and a call for community submissions.
II. Ensuring members of parliament attend relevant meetings to pass

new legislation.
III. Preparing a report, including the suggested recommendations for

law reform, and presenting it to the Victorian Attorney-General.
IV. Researching and consulting with relevant parties, such as experts

or those particularly affected by the subject matter.
V. Presenting the findings to the Victorian premier at the conclusion

of the inquiry.

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Question 4
Which of the following statements are correct about the VLRC inquiry into Stalking? (Select all that apply)
9D QUESTIONS
A. Part of the terms of reference was to consider the barriers faced by victims when reporting stalking.
B. The VLRC inquiry was primarily concerned with stalking in the context of family violence.
C. The VLRC received 115 submissions and 254 responses to an online form requesting people’s
experiences with stalking.
D. No consultations were held with expert bodies in this inquiry.
E. The VLRC provided 45 recommendations for law reform.
F. All of the legislative recommendations from the final report have been implemented by the
Victorian Government.
Question 5
Which of the following statements is not correct about the VLRC inquiry into Inclusive Juries?
A. This inquiry was a community law reform project as opposed to one initiated by the Victorian
Attorney-General.
B. Alongside investigating the barriers faced by people who are deaf, hard of hearing, blind, or have
low vision in participating in jury duty, the VLRC also sought to consider whether those who cannot
understand or communicate in English at all should be able to serve on juries.
C. 53 recommendations for law reform were provided, including measures and adjustments that could
be implemented to facilitate the participation of people who are deaf, hard of hearing, blind, or have
low vision in jury service.
Question 6
Tick to the box to indicate whether each of the following statements are true or false about the VLRC.

I. The roles of the VLRC are specifically outlined in s 5 of the Victorian Law Reform Commission Act 2000 (Vic).
II. The VLRC has the ability to make law reform recommendations at both the state and federal level.
III. The commission is funded by the Victorian Government and the Victorian Legal Services Board but
it remains impartial and is not politically affiliated.
IV. It is difficult for the community to participate in VLRC inquiries as it only accepts a limited number
of submissions from a specific geographical area.
Question 7
The VLRC is tasked with investigating and reporting on a wide range of areas that can include matters
concerning both the criminal and civil justice system.
A. True
B. False
Preparing for exams

Standard exam-style
Describe the Victorian Law Reform Commission.
Explain one role the VLRC undertook as part of one of its recent inquiries.

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It is the year 2084. Matilda is an employee at the Victorian Law Reform Commission (VLRC) and has been
9D QUESTIONS
assigned to a new community law reform project that is investigating work from home practices and whether
Victorians should be entitled to a three-day weekend.
Outline two aspects of the process used by the VLRC to investigate this matter.
‘The VLRC is limited in its ability to respond to the law reform needs of the community as it can only investigate
matters referred to it by the Victorian Attorney-General’s terms of reference.’
Extended response
Question 12
Tick the box to indicate whether the following statements are strengths or limitations of the VLRC’s ability
to influence law reform.

I. The VLRC is independent of political parties and is able to review laws on controversial matters
objectively and deliver a set of recommendations for law reform to parliament based on its
in-depth research, expert opinions, and the views of those who make submissions.
II. The VLRC is able to initiate projects and investigate matters concerning minor community
legal issues without a terms of reference from the Victorian Attorney-General. This enables
it to provide recommendations for law reform in areas that are specific to the needs of certain
groups and communities.
III. The government is not obliged to consider or implement any of the recommendations provided
by the VLRC.
IV. Projects can be very time-consuming due to the nature of the processes used by the VLRC.
The time spent consulting with relevant parties, engaging with the community, and reviewing
submissions is necessary to provide informed recommendations, however, it can result in a
slow law reform process. Moreover, once the report is tabled, law reform cannot immediately
occur as time is required for the Victorian Parliament to make legislative changes, should it
decide to adopt the recommendations of the VLRC.
With reference to one recent example of the VLRC recommending law reform that you have studied, discuss the
extent to which the VLRC is able to influence a change in the law.

With reference to one reason for law reform, explain how one recent VLRC inquiry sought to influence law reform.

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9E Royal commissions
• the role of Royal Commissions or parliamentary committees in law reform

and their ability to influence law reform
• one recent Royal Commission inquiry or one recent parliamentary
committee inquiry
9A 9B 9C 9D 9E 9F Image: hermanthos/Shutterstock.com
What if the government wants to investigate

a particular issue that is of public concern
and importance? Do members of the
4.2.5.1 The role of royal commissions 4.2.5.3 Case study – Yoorrook executive independently go out into
Justice Commission the community and conduct their own
4.2.5.2 Case study – Royal Commission 4.2.5.4 The ability of royal commissions investigations? How does the government
into the Robodebt Scheme to influence law reform know what law reform is required?
Lesson introduction
In order to comprehensively investigate a matter of public importance, a royal
commission may be established by the government, either at the state or federal
level. Royal commissions are conducted independently of the government, meaning
they are not influenced by political issues or party biases. Those conducting
royal commissions are equipped with broad powers to investigate a particular
issue and provide insightful recommendations for law reform. For example, royal
commissions can receive submissions from the community, hold public hearings,
and compel witnesses to give evidence under oath. Therefore, they may be effective
at influencing changes in the law.
The role of royal commissions 4.2.5.1

Ordered by the federal and/or state government, royal commissions are the
KEY TERM
highest form of inquiry on matters of public importance. They are established
to investigate a particular issue. The process of conducting a royal commission Royal commission the highest form of
involves consultation with experts and the community through submissions and inquiry, which investigates a particular
hearings. Royal commissions can explore an area of policy, encompassing social, issue through consultation with experts
legal, or political issues in their research. Alternatively, they may also be initiated and the community, then develops a
final report of recommendations for law
to investigate a particular incident or allegation when the government is seeking
reform which is tabled in parliament.
to determine the truth regarding an incident of concern. Providing those conducting
a royal commission with coercive powers of investigation can ensure the whole
truth regarding an issue emerges. Consequently, an in-depth understanding of the
matter can be provided to parliament, potentially inspiring effective law reform.
Upon the completion of a royal commission, a final report is delivered and tabled
in parliament that contains recommendations for law reform.
USEFUL TIP
The VCE Legal Studies Study Design indicates you only need to know one recent inquiry
by one parliamentary committee OR one royal commission. This is your choice, so pick
something you are interested in or one that your teacher suggests is appropriate. VCAA
requires examples of ‘recent inquiries’ to be from the past four years, so make sure your
chosen inquiry occurred within this time frame.
9E Royal commissions 429

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LEGISLATION Royal commissions may be established at both the Commonwealth level and the
state level. Commonwealth royal commissions are established once a Letters Patent
Royal Commissions Act 1902 (Cth) has been issued by the Governor-General of the Commonwealth of Australia under
9E THEORY
Inquiries Act 2014 (Vic) the Royal Commissions Act 1902 (Cth). Alternatively, at the state level, the Governor
has the power to establish a royal commission. In Victoria, this power is provided
under the Inquiries Act 2014 (Vic).
LEGAL VOCABULARY Royal commissions are independent of parliament and may, therefore, be asked
Letters Patent the official documents to investigate controversial matters. This can enable parliament to delay legislating
used to establish a royal commission, in contentious areas by instead waiting for the recommendations from the
appoint commissioners, and provide
independent commission to advise its future law-making.
the rules under which it will operate.
Terms of reference a document that Table 1 The role of royal commissions
details the issues that need to be
investigated, as well as the specific Role Explanation
scope and purpose of an inquiry. Receive and analyse When the government determines an issue or policy
Interest group a group of people a terms of reference that needs to be investigated, it must prepare a terms
who seek to influence public policy of reference that formally outlines the subject matter
on an issue or concern they believe the royal commission will be investigating. This terms
requires change. of reference document contains information about:
• the scope of the inquiry
• the particular issue or policy being investigated
Undertake research and Before engaging in discussions with the community,

prepare consultation a royal commission prepares a consultation paper that
papers details the matter being investigated and the possible
reforms that could be implemented as a result of the
inquiry. This provides guidance to members of the
community seeking to make submissions to the inquiry.
Seek submissions from A royal commission will seek submissions from the
the community community to ensure the recommendations for law
reform effectively reflect the views of society. Therefore,
royal commissions provide an avenue through which:
• individuals or organisations can express their
opinions regarding matters of public concern
to instigate legislative reform.
• experts can provide their opinions on complex
social issues to inform proposed changes to the law.
• interest groups can express their stance on issues
where they seek to influence law reform.
Conduct hearings A royal commission will conduct hearings, which may

be public or private, where members of the public
can observe or provide evidence on the issue being
investigated. These hearings may be conducted over
several days, during which the royal commission is
required to:
• listen to the evidence presented by individuals
• cross-examine individuals
• review written submissions.
Continues →

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Table 1 Continued
Role Explanation
9E THEORY
Engage in coercive A particular feature of royal commissions is their
powers of investigation coercive power of investigation. Royal commissions can:
• issue a summons ordering a person to appear
before the commission
• require individuals to give evidence under oath
• require individuals, businesses, or organisations
to produce evidence under oath
• provide penalties of up to two years imprisonment
for those who fail to comply with summons or
intentionally provide false or misleading evidence.
This coercive power ensures royal commissions

have a greater ability to determine the truth, gain
insight into the issue, and review all the evidence.
Consequently, a greater understanding of the social
or legal issue being investigated can be provided,
allowing law reforms to be recommended that would
most effectively resolve the issue.
Present a final report After the conclusion of the investigation, royal

to parliament with commissions produce a report of the investigation’s
recommendations for findings and provide recommendations for law reform.
law reform
Case study – Royal Commission into the

Robodebt Scheme 4.2.5.2
On 18 August 2022, the Royal Commission into the Robodebt Scheme was established.
In 2015, the Department of Human Services (DHS) proposed, and the Federal
Government initiated, the debt recovery scheme, commonly referred to as Robodebt.
The Robodebt system sought to ensure people who received Centrelink benefits
were not under-reporting their income and, consequently, receiving overpayments
dating back to the 2010-11 financial year. In order to determine this, the scheme used
a number of methods over its four year operation period. The Online Compliance
Intervention (OCI) was one iteration of the program that ran from July 2016
to February 2017. The OCI relied on a process called ‘income averaging’ to assess
one’s income and subsequent welfare entitlement (The Royal Commission into the
Robodebt Scheme, 2023). The OCI compared an individual’s earnings recorded
on a customer’s Centrelink record, with historical, employer-reported income
data collected by the Australia Taxation Office (ATO). Customers were asked to
confirm their income using the online system and, if they failed to do so or left gaps
in the information provided, the system would fill in the gaps using the predicted,
fortnightly figure derived from the ATO income data. If the Robodebt system
determined that an overpayment had been made, it automatically sent a debt recovery
notice to the individual. However, the OCI was faulty and the ‘income averaging’
process was sending individuals receiving Centrelink payments, or who had once
received such payments but no longer did, inaccurate debt notices. Consequently,
these individuals were required to pay back the Federal Government for debts they
did not owe.

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The Robodebt Scheme persisted until November 2019, when it was announced
‘The Australian Unemployed Workers’
the debts would no longer be calculated via the ‘income averaging’ process. In May
Union (AUWU) represents and advocates
2020, the government announced it would be refunding individuals who paid debts
for unemployed workers navigating
9E THEORY
[Australia’s] brutal welfare system… they did not owe. The scheme initially reimbursed 381,000 affected individuals,
The ongoing brutality of colonial violence totalling approximately $746 million (The Royal Commission into the Robodebt
is readily observable in [Australia’s] Scheme, 2023). However, the refunds failed to address the significant emotional
welfare system, where various government distress, pain, and trauma inflicted upon those subjected to the debt repayment
programs such as Robodebt precisely process. A large proportion of individuals who were significantly impacted by the
target Indigenous communities for
scheme were from vulnerable populations, including persons with a disability and
surveillance, punishment and austerity.’
First Nations peoples.
—Australian Unemployed Workers’ Union
Terms of reference
‘I have suffered severe mental health issues The terms of reference required the Commission to look into the following aspects
my whole life… as a result I have been a of the Robodebt Scheme, amongst other issues:
long term centrelink recipient…Centrelink
still believe I owe $1150 of which interest • The establishment, design, and implementation of the Robodebt Scheme,
is being applied - which is currently under including:
review. This has made me ashamed to be – who was responsible for the scheme and why they considered it necessary
Australian where my government treats to establish
its citizens and most vulnerable this way.
– any concerns raised regarding the legality or fairness of the scheme.
I want an apology - and not anything like
the correspondence I have received so far.’ • The use of third-party debt collectors under the scheme.
—Matthew Thompson (Community member)
• Whether concerns had been raised by any individuals or groups just after
the implementation of the scheme and, if concerns had been raised, how these
‘[A]s long as this saga is prolonged were handled and what systems were in place to address public complaints
and as the Centrelink correspondence against the scheme.
continues, I am taken back to the horrific • The intended or actual outcomes of the scheme, particularly the impact of the
night of my father’s passing, which is the
scheme on individuals and their families, and its overall cost.
reason I turned to Centrelink in my time
of distress. This is a form of PTSD that
is being continually triggered and the The investigative process
impact on my mental health has been The government provided $30 million of funding to establish the Robodebt Royal
severe, especially in conjunction with Commission. With this funding, the Commission gathered information and evidence
the fear that I may well be considerably
through a range of different methods. It received 1,099 submissions, both written
in debt for monies I don’t believe I owe.
and oral, from individuals of each Australian state and territory. 72% of individuals
This whole episode has been extremely
traumatic and I feel as if I am running making a submission had a Centrelink debt raised against them, or were making
out of people to turn to.’ the submission on behalf of someone impacted by the scheme. Other submissions
—Shelly P (Community member) came from individuals who had a general interest in the scheme. Furthermore,
the Commission held public hearings over 46 days with appearances by more
than 100 witnesses.
Figure 1 Submissions provided by community
members to the Robodebt Royal Commission The Royal Commission exercised its coercive powers of investigation by compelling
witnesses, such as senior government officials, to appear at public hearings and provide
evidence under oath. For example, witnesses called to give evidence in relation to the
LEGAL VOCABULARY
creation and implementation of the scheme included formal Liberal frontbenchers,
Frontbencher a parliamentary such as Scott Morrison, Marise Payne, and Malcolm Turnbull. The Commission also
minister who has been provided
required government departments to produce records related to the inquiry, which
with an area of responsibility.
amounted to just under one million documents.

After conducting a thorough investigation, the Commission delivered a final report
on 7 July 2023 that was over 900 pages. The report criticised the establishment and
implementation of the Robodebt Scheme, labelling it a ‘crude and cruel mechanism,
neither fair nor legal’. It found that ‘a number of senior department officers… did not
understand the online compliance system or its effects’ (The Royal Commission into
the Robodebt Scheme, 2023). Additionally, when legitimate concerns were raised
about the Robodebt scheme, they were ignored by the government. Therefore,
the report contained 57 recommendations to address the effects of the Robodebt
Scheme on individuals and prevent future failures in government administration.

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WANT TO KNOW MORE?

You can find out more about the Robodebt Royal Commission by searching ‘Royal
Commission into the Robodebt Scheme’ and clicking the relevant webpage (The
9E THEORY
Royal Commission into the Robodebt Scheme, 2023). On this webpage, you can learn
more about the investigative process undertaken by the Commission by reading other
submissions and viewing the transcripts of the conducted hearings.
When designing policies and processes, Services Australia

(the department that manages Centrelink) should emphasise
the people such policies and processes are meant to serve.
The Commonwealth should enact legislative reform to

introduce a consistent legal framework in which automated
government services can operate.
Services Australia should be aware of and consider the

vulnerable recipients that may be impacted by its programs.
Services Australia should provide more face-to-face support

for vulnerable recipients.
Services Australia should develop a comprehensive debt

recovery management policy.
Figure 2 Examples of recommendations made by the Royal Commission in relation to the

Robodebt Scheme
Case study – Yoorrook Justice

Commission 4.2.5.3
In May 2021, the Governor of Victoria approved the Victorian Government’s CONTENT WARNING Aboriginal and/
establishment of a Royal Commission called the Yoorrook Justice Commission. or Torres Strait Islander readers should be
The Commission provides First Nations peoples in Victoria with a formal aware that some material in this section
may be culturally sensitive. Examples
truth-telling process to hear, acknowledge, and address the historical and
of this include references to people who
ongoing injustices experienced since colonisation. Providing an opportunity for
have passed, triggering language, and/or
Aboriginal and Torres Strait Islander peoples to share their own experiences mentions of distressing events.
can assist the Commission in understanding the causes and effects of systemic
injustices. The Commission, therefore, aims to ensure informed and meaningful
recommendations for reform are made to address these injustices (Yoorrook
Justice Commission, 2023).
Terms of reference
The terms of reference required the Commission to investigate and report on the
following subject matter, among other issues:
• The historical and ongoing systemic injustices committed by government and
non-government organisations since colonisation.
• The causes and consequences of systemic injustice experienced by First Peoples.
• Methods to acknowledge and address systematic injustices in a culturally
appropriate manner.
• Methods to raise awareness and increase public understanding of the historical
and ongoing experiences of First Peoples before and since the start of colonisation.

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‘The Alliance concludes that the

Victorian system is failing Aboriginal Since its establishment in 2021, the Yoorrook Justice Commission has gathered
families, children and young people and information and evidence through a range of different methods. In March 2022,
9E THEORY
that systemic reform is needed. A new the Commission held its first ceremonial public hearing, during which it outlined
standalone Aboriginal Families, Children
its scope and handed out information sheets about its approach to truth-telling.
and Young People’s Care Act is required
to establish an Aboriginal-led, designed
Furthermore, the Commission also prioritised meetings with First Nations Elders
and delivered care system in Victoria.’ to hear their truth-telling. These meetings were conducted in a number of ways,
—Victorian Aboriginal Children and including as yarning circles, where some or all Commissioners would meet with
Young People’s Alliance a small group of Elders. Elders were also able to meet through private, one-on-one
meetings with the Commissioners. From March 2022 to June 2022, Commissioners
‘One of the most damaging consequences visited 29 locations and met with 199 people, conducting most of these meetings
of the systemic injustice in the criminal through yarning circles in order to gain insight into First Nations’ ‘truths and
justice system is the deaths in custody priorities for Yoorrook’. During these visits, Commissioners learnt about:
of First Nations people and the resulting • the history, meaning, and significance of local Victorian sites for First Nations
devastation felt by First Nations families
peoples, such as sites of cultural importance and locations of massacres.
and communities. In the three decades
since the Royal Commission into Aboriginal • the experiences and stories of Elders in relation to their families and ancestors.
Deaths in Custody (RCIADIC), despite • the frustration felt by Elders, and their cynicism towards historical government
numerous inquiries and reviews and their
efforts which have attempted to address the injustices experienced by
comprehensive recommendations for
First Peoples.
change, the number of deaths in custody
has continued to increase.’ • Elders’ concerns and queries regarding the Yoorrook Justice Commission.
—Victoria Legal Aid
Additionally, the Commission held public hearings, referred to as ‘wurrek tyerrang’,
whereby it heard from witnesses, including Elders, to understand their truth with
‘It is my truth telling as a Warlpiri man respect to issues of importance. It also received a range of submissions about historic
and my experiences in Victoria… After and ongoing injustices experienced by First Nations peoples. These submissions were
practising at Aboriginal Legal Aid in the submitted in a range of different formats, such as written, oral, or artistic pieces.
Northern Territory, I came down to do
the Victorian Bar Readers Course, I met Like any other royal commission, the Yoorrook Justice Commission has the power
two ex-legal aid workers, and they told to exercise its coercive powers of investigation, such as compelling witnesses to
me I was not really “Aboriginal”.’ give evidence under oath or by compelling the government, if necessary, to produce
—Anonymous documents and official records. However, this Commission is primarily focused on
truth-telling and, therefore, did not exercise any of these powers when preparing its
June 2022 interim report.
Figure 3 Submissions provided by community
members to the Yoorrook Justice Commission
The Commission delivered its interim report on 30 June 2022, which outlined the
progress of the investigation. In particular, the Commission found that historical
injustices experienced by First Nations peoples continue to impact the present and
contribute to the ongoing injustices faced by these communities. Examples of key
findings revealed by the investigation include:
• Racism has impacted, and continues to impact, the everyday life of many First
Nations peoples. This includes systemic discrimination, particularly when
dealing with the state of Victoria.
• The significance of cross-generational trauma for First Nations peoples is caused
by ‘the breakup of families, loss of language and exclusion from economic or social
networks’. Elders continuously stated the importance of youth knowing ‘who they
are, where they came from and who their people are’.
• Problems related to land and economic power stem from colonial dispossession.
Being dispossessed of their land during colonisation attacked the fundamental
dignity of Aboriginal and Torres Strait Islander peoples and undermined their
autonomy and authority in shaping both their present and future life.
However, the interim report did not contain the full list of recommendations for
law reform. The full list of recommendations will be published in its final report,
set for release in December 2024. It did recommend that the Governor extend the
due date for Yoorrook’s final report to 30 June 2026. It also recommended that the
government urgently enact law reform to allow First Nations peoples to choose
how the information they provide to Yoorrook is to be ‘stored, accessed and used
in the future’.

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Furthermore, the Commission released its ‘Yoorrook for Justice Report’ on

4 September 2023, containing 46 recommendations for law reform.
9E THEORY
The Victorian Government must delegate its decision-making

power, authority, control, and resources to First Nations
peoples in the Victorian child protection system.
The Victorian Government must upscale the capability,

competence, and support in relation to human rights,
including Aboriginal cultural rights, of all persons appointed
to work or working in certain areas, such as in the child
protection system.
The Victorian Government must work with Aboriginal

organisations to develop a consistent definition of early
help, early intervention, and prevention that aligns with the
perspectives of First Nations peoples.
The Victorian Government must address barriers to

Aboriginal and Torres Strait Islander peoples becoming carers
for First Nations children in the child protection system.
Figure 4 Examples of recommendations made by the Yoorrook Justice Commission in its ‘Yoorrook
for Justice Report’
WANT TO KNOW MORE?

You can find out more about the Yoorrook Justice Commission by searching ‘Yoorrook
Justice Commission’ and clicking the relevant webpage (Yoorrook Justice Commission,
2023). On this webpage, you can learn more about the investigative process undertaken
by the Commission by reading the other submissions and viewing the transcripts of the
conducted hearings.
You can find out more about royal commissions and recent inquiries by searching
‘Recent Royal Commissions’ and clicking the ‘Royal Commissions’ (n.d.) webpage.
The ability of royal commissions

to influence law reform 4.2.5.4
Whilst royal commissions have a far-reaching ability to connect with the community
and improve access to experts for further investigations into issues affecting the state
or country, their ability to influence law reform is ultimately dependent on parliament
enacting their recommendations by passing relevant legislation. Furthermore, the
time and money involved in these investigations can be significant.
USEFUL TIP
the ability of law reform bodies to influence a change in the law, using recent examples’.
Table 2 shows the strengths and limitations of royal commissions in influencing law
reform, with reference to the recent examples covered in this lesson. Therefore,
this can help you answer higher-mark questions requiring an evaluation of the ability
of royal commissions to influence a change in the law, using a recent example.

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Table 2 Evaluating the ability of royal commissions to influence law reform
9E THEORY
• Royal commissions are able to comprehensively investigate • As royal commissions are the highest form of inquiry, they
a particular incident, area of policy, or social, legal, or are only established in rare and exceptional circumstances.
political issue in their research. Therefore, they can provide • Royal commissions can be very expensive because of the
insightful recommendations for law reform that accurately resources required, such as staff and the use of experts.
and adequately address the issue at hand. For example, the For example, the Robodebt Royal Commission was given
Yoorrook Justice Commission, through its truth-telling a budget of $30 million to conduct its investigation.
process, was able to gain insight into the frustration felt by
• The government is not obliged to follow the suggested
Aboriginal and Torres Strait Islander peoples and cynicism
recommendations by the commission, meaning the inquiry
towards historical government attempts to address issues
could be considered a waste of time and money.
they experience.
• Royal commissions can be time-consuming due to the
• Royal commissions are independent of the government,
extensive use of experts, hearings, examination of witnesses,
meaning their investigations are not influenced by
reading through submissions, and consulting with the
political biases.
community. As such, law reform can be slow to respond
• As a royal commission is established by the government, to issues in society. For example, the Robodebt Royal
parliament may be more likely to act on and implement law Commission was established in August 2022 and the final
reform based on the findings of the commission. For example, report was tabled in July 2023. The government must then
as the Yoorrook Justice Commission was established by thoroughly analyse the over 900-page report and issue its
the Victorian Government, it may be more likely to adopt response, delaying the enactment of law reform.
the recommendations of the commission and implement
• There is a lack of power if there are breaches of the Royal
law reform.
Commission Act 1902 (Cth). The Australian Law Reform
• Royal commissions can allow the government of the day to Commission lacks the power to investigate breaches of the
determine the amount of public support for a contentious Act and penalties for miscompliance are often inadequate.
law reform matter. Therefore, if parliament observes there
• Whilst royal commissions are independent, they are
is broad support for a particular change, it may initiate law
still dependent on the government’s willingness to have
reform to remain popular with the public and gain re-election.
the issue investigated. The government of the day must
• Royal commissions have coercive powers of investigation, decide to initiate a royal commission and establish its
including the ability to compel witnesses to give evidence terms of reference, therefore it may limit or not introduce
under oath, allowing the whole truth to emerge. Consequently, a royal commission that could be politically damning or
parliament can better understand issues, facilitating effective produce recommendations it does not want to implement,
law reform. For example, the Royal Commission into the consequently limiting law reform in areas a government
Robodebt Scheme used its coercive powers to compel wants to avoid.
witnesses, such as senior government officials, to appear
at public hearings and give evidence about the scheme
under oath.
• Hearings are often public and submissions can be made by
the community, providing an indirect way for the public to
influence law reform and put their concerns before parliament.
For example, the Yoorrook Justice Commission conducted
yarning circles across 29 locations with 199 First Nations
Elders across Victoria to gain insight into their ‘truths and
priorities for Yoorrook’.
• The report developed by a royal commission is tabled in
parliament, which ensures issues are directly presented
before members of parliament, encouraging them to debate
the recommendations, which could potentially prompt
law reform.
REAL WORLD EXAMPLE
Combatting confidentiality concerns

LEGISLATION The Royal Commissions Amendment (Protection of Information) Act 2021 (Cth) was passed
to enhance the protections available to people engaging with the Royal Commission
Royal Commissions Amendment into Violence, Abuse, Neglect and Exploitation of People with Disability. In response,
(Protection of Information) Act 2021 (Cth) the Attorney-General’s department conducted a review of the confidentiality protections
in the Royal Commissions Act 1902 (Cth). The main purpose of the review was to look
into impediments within the Act that would prevent or discourage people from sharing
information with a royal commission. In its 2022 report, the Attorney-General’s
department recommended changes to be made to the Act, including the implementation
of confidentiality protections for future royal commissions.
Continues →

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REAL WORLD EXAMPLE
Combatting confidentiality concerns – Continued
9E QUESTIONS
In response, the Federal Parliament passed the Royal Commissions Amendment (Enhancing
Engagement) Act 2023 (Cth), which ensures ‘any sensitive, personal or confidential
information disclosed to the commission, can be protected during and after the life of the
inquiry’. Consequently, this can increase the likelihood of individuals engaging with future
royal commission inquiries as their confidential statements are better protected.
Adapted from ‘New laws boost protections for people to engage with Royal Commission’ (Royal Commission into
Defence and Veteran Suicide, 2023) and ‘Review of confidentiality protections in the Royal Commissions Act 1902’ Image: Jason Benz Bennee/Shutterstock.com
(Attorney-General’s Department, 2022) Figure 5 The Federal Parliament passed
legislation to provide greater confidentiality
protections for those engaging with
royal commissions
Lesson summary LEGISLATION
• Royal commissions can influence law reform through their ability to investigate Royal Commissions Amendment
(Enhancing Engagement) Act 2023 (Cth)
matters of public importance at the request of the government.
• Royal commissions consider society’s views on contentious issues via written
submissions and hearings involving the general population. They also have
coercive powers of investigation to gain insight into the issue being investigated
and review all the evidence.
• Parliament is not obliged to implement law reform based on the recommendations
of royal commissions, so not all commissions will lead to comprehensive
law reform.
• The Royal Commission into the Robodebt Scheme and the Yoorrook Justice
Commission are two examples of royal commissions.
9E Questions
Question 1
Royal commissions are the highest form of public inquiry that may be established to explore an area of policy
or to investigate a particular incident or allegation.
A. True
B. False
Question 2
Which of the following is not a role of a royal commission?
A. Receive and analyse the terms of reference.
B. Create law reform by passing legislation.
C. Conduct hearings.
D. Present a final report to parliament with recommendations for law reform.
E. Seek submissions from the community.

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Question 3
Which of the following statements are correct about the Royal Commission into the Robodebt Scheme?
9E QUESTIONS
A. The Commonwealth Government was obliged to adopt all 57 recommendations made by the Robodebt
Royal Commission to address the effect of the Robodebt Scheme on individuals and prevent future failures
in government administration.
B. The Commission gained the perspectives of individuals impacted by the Robodebt Scheme, including those
who had a Centrelink debt raised against them.
C. The Royal Commission exercised its coercive powers of investigation by compelling witnesses, such as senior
government officials, to appear at public hearings and provide evidence under oath.
D. The Robodebt Royal Commission is not independent of political influences and, therefore, its report
contained biased recommendations that did not address the establishment and implementation of the
Robodebt Scheme.
Question 4
Which of the following statements is not correct about the Yoorrook Justice Commission?
A. For its interim report, the Yoorrook Justice Commission exercised coercive powers of investigation
by forcing 199 Aboriginal Elders to provide their view on the ‘truths and priorities for Yoorrook’.
B. The Yoorrook Justice Commission’s terms of reference required it to investigate the causes and
consequences of systemic injustice experienced by Victoria’s First Nations peoples.
C. The Commission held public hearings, referred to as ‘wurrek tyerrang’, where it heard from witnesses,
including Elders, about their truth with respect to issues of importance.
D. The interim report did not contain substantial recommendations for law reform as these will be released
in its final report and were partially released in the September 2023 report.
Question 5
Tick to the box to indicate whether the following statements are strengths or limitations of a royal
commission’s ability to influence law reform.

I. As royal commissions are the highest form of inquiry, they are only established in rare and
exceptional circumstances.
II. The report developed by a royal commission is tabled in parliament, which ensures issues
are directly presented before members of parliament which may encourage debate.
III. Whilst royal commissions are independent, they are still dependent on the government’s
willingness to initiate a royal commission about a particular issue.
IV. Royal commissions are able to comprehensively investigate a particular incident, area of
policy, or social, legal, or political issue in their research. Therefore, they can provide insightful
recommendations for law reform to accurately and adequately address the issue at hand.
Question 6
Royal commissions may be established at both the Commonwealth and state level.
A. True
B. False
Preparing for exams

Standard exam-style
Explain one strength of royal commissions in influencing law reform, referring to one recent royal commission.

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The high costs and long delays associated with hearing cases in Victorian courts have raised concerns
regarding the need for law reform to address these issues. In particular, the Victorian Government is
9E QUESTIONS
concerned that the costs and time involved in hearing cases is limiting the achievement of justice.
Explain how a royal commission could influence law reform in relation to the costs and delays of the
Victorian courts.
Extended response
Use your answer to question 9 to support your response to questions 10 and 12.
Question 9
Tick to the box to indicate whether the following statements are strengths or limitations of a royal
commission’s ability to influence law reform.

I. Royal commissions have coercive powers of investigation, such as compelling witnesses to give
evidence under oath, that ensure the whole truth emerges. Consequently, this enables the issue
to be better understood by parliament and facilitates effective law reform, as more adequate
measures can be recommended by the commission.
II. The government is not obliged to follow the suggested recommendations made by the
commission, meaning the inquiry could be considered a waste of time and money, and have
no influence on law reform.
III. As a royal commission is established by the government, it may be more likely to act on and
implement law reform based on the findings of the commission, as it opened itself up to
criticisms and recommendations for law reform by initiating the commission.
IV. Royal commissions are able to comprehensively investigate a particular incident, area of
policy, or social, legal, or political issue in their research. Therefore, they can provide insightful
recommendations for law reform to accurately and adequately address the issue at hand.
V. Whilst royal commissions are independent, they are still dependent on the government’s
willingness to initiate a royal commission.
Referring to one recent royal commission, explain one strength and one limitation of a royal commission
in influencing a change in the law.
Use your answers to questions 9 and 11 to support your response to question 12.
Question 11
Yoorrook Justice Commission to influence a change in the law.

I. The Yoorrook Justice Commission was established by the Victorian Government. Therefore,
members of parliament may be more likely to adopt the recommendations of the Commission
and implement law reform.
II. Whilst the Yoorrook Justice Commission gained valuable insights, parliament is under no
obligation to act on these findings.
III. The Yoorrook Justice Commission, through its truth-telling process, was able to gain insight
into the frustration felt by Victoria’s First Peoples, and cynicism towards historical government
attempts to rectify issues that have stemmed from colonisation.

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‘Royal commissions serve a number of valuable purposes in influencing law reform.’
9E QUESTIONS
Evaluate the ability of royal commissions to influence a change in the law, with reference to one recent inquiry
that you have studied.

Question 13
Which of the following statements are correct about the Victorian Law Reform Commission (VLRC) and royal
commissions? (Select all that apply)
A. The VLRC is independent of political parties and is able to review laws on controversial matters
objectively, unlike royal commissions which, whilst independent, are still dependent on the government’s
willingness to initiate a royal commission about a particular issue and ensure its scope is sufficiently wide.
B. Royal commissions can investigate smaller issues, such as community law reform projects, without a
terms of reference. Therefore, their investigations may be more effective than the VLRC as this body
cannot investigate issues without such terms.
C. Royal commissions may be more effective as they have coercive powers of investigation, such as being
able to compel witnesses to give evidence under oath, to ensure the whole truth emerges, whilst the
VLRC does not have these powers.
D. Parliament is obliged to create law reform based on the recommendations made by royal commissions,
whereas this is not the case for the VLRC given that it is an independent body.
‘There are other bodies that are more effective than the VLRC in influencing law reform.’
With reference to royal commissions, discuss the extent to which you agree with this statement.
VCAA 2018 Sample exam Section B Q1c

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9F Parliamentary committees
• the role of Royal Commissions or parliamentary committees in law reform and

their ability to influence law reform
• one recent Royal Commission inquiry or parliamentary committee inquiry
9A 9B 9C 9D 9E 9F
Image: aslysun/Shutterstock.com
Members of parliament do not have

superpowers. They cannot simply click
their fingers and know exactly what areas
4.2.6.1 4.2.6.2 4.2.6.3 4.2.6.4
of law need to be improved and how these
The role of Case study – Case study – The ability of improvements should be implemented.
parliamentary Inquiry into Inquiry into parliamentary
committees Anti-Vilification Tackling Climate committees to Therefore, there are bodies that are
Protections Change in Victorian influence law responsible for investigating areas where
Communities reform law reform may be required.
Lesson introduction
Parliamentary committees are composed of members from both state and federal
parliament and they play an important role in investigating the need for law reform.
During their investigations, parliamentary committees consult with the community
to better understand society’s perspective on particular issues and laws, before
recommending law reform. Therefore, parliamentary committees bridge the gap
between parliament and the people to ensure greater representation of society’s views
throughout legislative reform, whilst also protecting democratic values in Australia.
The role of parliamentary committees 4.2.6.1 KEY TERM

Parliamentary committees are composed of approximately six to 10 members
from one or both Houses of Parliament. These members investigate issues and Parliamentary committee a group of
members of parliament who undertake
review laws, proposing necessary legislative amendments in particular areas.
work on behalf of parliament and
There are different types of parliamentary committees that perform specific roles. investigate the need for law reform.
Some parliamentary committees may fall under more than one category.
Table 1 Types of parliamentary committees
Type of committee Explanation Examples

Standing committees Appointed for the life of parliament • Standing Committee on Employment,
and are usually re-established Education and Training
in successive parliaments to • Standing Committee on Procedure
continuously investigate issues
relating to particular subjects.
Select committees Created for a specific purpose to • Select Committee into the Provision of and
investigate a policy issue. Access to Dental Services in Australia
• Select Committee on the Cost of Living
Joint committees Composed of members from both • Joint Standing Committee on Aboriginal
Houses of Parliament. They may be and Torres Strait Islander Affairs
standing or select. • Joint Select Committee on National
Anti-Corruption Commission Legislation

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Generally, all types of parliamentary committees conduct similar investigative

procedures to ensure they research an area comprehensively. After conducting
a thorough investigation, recommendations will be openly and transparently
9F THEORY
made to parliament for law reform.
Table 2 The role of parliamentary committees

Receive and analyse
the terms of reference Role Explanation
Receive and analyse When parliament determines an issue or policy that
the terms of needs to be investigated, it must provide the parliamentary
reference committee with the terms of reference to set out the scope
of the inquiry. This document contains information about:
• the purpose of the committee
• the particular issue or policy being investigated
Invite written submissions
from the community Invite written During each investigation, parliamentary committees
submissions from conduct research and consult with the community to ensure
the community the law-making process effectively reflects the views of
society. Therefore, parliamentary committees provide an
avenue through which:
• individuals or organisations can express their
opinions regarding parliamentary issues to instigate
legislative reform.
• experts can provide their opinion on complex social
issues to inform proposed changes to the law.
Conduct public committee hearings
• interest groups can express their stance on issues
where they seek to influence law reform.
Conduct public Parliamentary committees conduct public hearings where

committee hearings members of the public can observe or give evidence on the
issue being investigated. These hearings may be conducted
over several days during which parliamentary committees
are required to:
• listen to the evidence presented by individuals
Present a final report including • cross-examine these witnesses
recommendations for law reform • review written submissions.
Figure 1 The general role of parliamentary
committees Parliamentary committees have various powers that allow
them to gain a vast range of perspectives to ensure the
whole truth emerges when attempting to solve complex
LEGAL VOCABULARY social issues. These powers to seek truth include:
Terms of reference a document that • being able to summon witnesses, such as experts, to
details the issues that need to be appear before a committee hearing
investigated, as well as the specific • protecting evidence given during a hearing through
scope and purpose of an inquiry. parliamentary privilege to ensure witnesses provide
Interest group a group of people accurate information, knowing they cannot be sued
who seek to influence public policy or prosecuted for what is said.
on an issue or concern they believe
requires change. By using these powers to uncover as much truth as possible,
Parliamentary privilege the special committees are able to holistically suggest changes to the
legal rights and immunities that law that are more likely to be effective in solving the social
apply to the Houses of Parliament, issue in question.
its committees, and members. Present a final report After the conclusion of the public hearing, parliamentary
to parliament with committees must write a report of their findings, as revealed
recommendations by the investigation, and provide their recommendations for
for law reform law reform.
After the committee presents a final report recommending areas for law reform,
parliament is required to respond to this report within six months and indicate
whether it supports any recommendations. Therefore, parliament must show it has
actually considered each of the recommendations and only rejected recommendations
on a valid basis.

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Case study – Inquiry into Anti-Vilification

Protections 4.2.6.2
9F THEORY
In 2019, the Legislative Assembly Legal and Social Issues Committee launched
its Inquiry into Anti-Vilification Protections which sought to research current
protections in place to prevent vilification in Victoria, while also making
recommendations for law reform that should occur in Victoria related to this
CONTENT WARNING This section
issue (Parliament of Victoria, 2021).
mentions content that is sensitive
in nature, relating to anti-semitism
LEGAL VOCABULARY
Vilification when an individual says or
does something in public that incites
Figure 2 The Legislative Assembly Legal and Social Issues Committee conducted an inquiry into hatred, serious contempt, revulsion,
Anti-Vilification Protections
or severe ridicule against a particular
group of people.
Terms of reference
The terms of reference required the committee to consider various aspects of the
Racial and Religious Tolerance Act 2001 (Vic), which makes racial and religious LEGISLATION
vilification unlawful. This included investigating:
Racial and Religious Tolerance
• the effectiveness and enforcement of this legislation in Victoria. Act 2001 (Vic)
• comparisons between this legislation with other state and Commonwealth
legislation.
• the role of state legislation in addressing online vilification. ‘Regardless of the nature of antisemitism,
• any evidence of increasing vilification in Victoria. its impact can be significant… abuse,
either verbal or physical, or via emails,
• possible protections to classes of people not currently protected under the Act. can lead to loss of self-esteem and, in
• any actions already underway to work with social media and technology extreme circumstances, negative health
companies to combat vilification. outcomes. Antisemitism can lead to
fear of people expressing their Jewish
Submissions identity in public, either through dress,
or particular practices.’
The committee received 62 submissions from individuals, organisations, experts, —Jewish Community Council of Victoria
and interest groups in the community, including the Jewish Community Council of
Victoria, the Australian Discrimination Law Experts Group, the Victorian Disability
Advisory Council, and the Victorian Government. ‘No vilification laws. My concern
is that these laws will only serve to
protect the powerful from scrutiny.
Committee hearing
That religious organisations, sects,
During seven days of public hearings, broad consultations with the community cults, law enforcement agencies and
occured in metropolitan areas and via video conference. Oral evidence was provided governments could possibly hide from
at the hearings and transcripts were taken and published publicly. scrutiny and the law behind this type
of legislation. A slippery slope.’
Report and recommendations —Mr Geoff Lambourne, local community member
After conducting a thorough investigation, the committee tabled a final report in

parliament on 3 March 2021. The report contained 36 recommendations for law ‘History shows that gay, lesbian, bisexual,
reform to minimise Victorian citizens’ exposure to vilification. In particular, the report transgender and intersex (or LGBTI)
found that hate conduct was more prevalent towards First Nations people, members people are frequently vilified and that this
vilification has a significant impact on our
of the LGBTIQ+ community, people from culturally and linguistically diverse
mental health.’
backgrounds, women, people with disabilities, and people from particular faiths.
—Mr Sean Mulcahy, Committee Member, Victorian Gay
and Lesbian Rights Lobby
Figure 3 Submissions and oral evidence

provided by community members to the
Anti-Vilification Protections Inquiry

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9F THEORY
Strengthen existing laws, regulations, and penalties

associated with discrimination of characteristics including
sexual orientation and gender identity.
Promote education and awareness of vilification to encourage

a greater understanding of respect and diversity.
Strengthen community engagement in combating vilification,

such as encouraging social media platforms to adopt policies
and practices that minimise hate speech.
Increase support for victims of vilification or establish a legal

assistance fund to support victims in pursuing legal action.
Figure 4 Examples of recommendations for anti-vilification law reform in the parliamentary

committee’s report to the Victorian Parliament
Influence of the inquiry on law reform

On 2 September 2021, in its response to the inquiry, the Victorian Government
expressed its support of 34 of the 36 recommendations. However, it was under no
obligation to implement law reform based on these recommendations. Additionally,
parliament ‘support[ed] in principle’ 24 of these recommendations, meaning it aligned
with the broad idea of them, but was unable to create law reform immediately due to
certain circumstances, such as the requirement for further funding or investment.
Since then, the Victorian Government has initiated actions that aim to address
hate conduct, while it is also identifying future priorities to respond to the
recommendations. For example, the committee recommended that the Victorian
Government establish a criminal offence prohibiting the display of symbols of
Nazi ideology, including the Nazi swastika, with appropriate religious and cultural
LEGISLATION exceptions. In response to this, the government passed the Summary Offences
Amendment (Nazi Symbol Protection) Act 2022 (Vic), which criminalises the intentional
Summary Offences Amendment (Nazi display of a Nazi symbol, or symbols that closely resemble these, in public, with the
Symbol Protection) Act 2022 (Vic)
exception of displays which are for a genuine educational, scientific, or artistic purpose.
DEEP DIVE
Inquiry into Anti-Vilification Protections

If you choose to focus on this inquiry, search ‘Inquiry into Anti-Vilification Protections’ and
click the Victorian Parliament (2021) webpage to find out more about the investigative
process undertaken by the Legislative Assembly Legal and Social Issues Committee.
On this site, you will also be able to read all the other submissions and hearings that
the inquiry considered.
Case study – Inquiry into Tackling Climate

Change in Victorian Communities 4.2.6.3
In 2019, the Legislative Assembly Environment Committee launched its Inquiry into
Tackling Climate Change in Victorian Communities which sought to research the
Victorian Government’s current policies related to combating climate change, while
also making recommendations for law reform that could occur to tackle climate
change (Parliament of Victoria, 2021).

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Terms of reference
The terms of reference required the committee to investigate the existing actions
being taken to combat climate change in urban, rural, and regional communities
9F THEORY
of Victoria and how the Victorian Government could support these communities.
Submissions
The committee received 162 submissions from individuals, organisations, experts,
and interest groups in the surrounding community, including Eastern Climate Action
Melbourne, Energy Australia, Greater Shepparton City Council, RMIT University, Image: nicostock/Shutterstock.com
and the Victorian Farmers Federation. Figure 5 The Legislative Assembly Environment
Committee conducted an inquiry into tackling
climate change in Victorian communities
Committee hearing
Over 15 days, broad consultations with the community occurred in metropolitan and
‘I live in the East Gippsland forests, the
regional areas, and via video conference. Oral evidence was provided at the hearings
trees are already dying. Burnt by heat
and transcripts were taken and published publicly.
waves during Summer, then hardly any
rain in Autumn means they are struggling
Report and recommendations enough without the added pressures of
After conducting a thorough investigation, the committee tabled a final report logging and burning.’
in parliament on 25 November 2020. The report contained 72 recommendations —Lisa McKenna, Resident of the East Gippsland forests
for law reform to mitigate climate change in Victorian communities.

‘The Yallourn mine and power station
in the Latrobe Valley employs over 500
workers, doubling to 1000 workers every
18 months for major maintenance works.
The power station provides 20 per cent
of Victoria’s electricity supply, enough to
Recommendations for law reform power over two million Victorian homes.’
—Energy Australia
‘In recent years the City of Greater

Develop a statewide emissions reduction target of net zero
by 2050 and establish an independent Climate Change Bendigo has registered an increasing
Commission to provide advice on how to achieve this goal. level of concern amongst our community
about climate change as weather events
Increase public education and awareness about the
previously thought of as extreme become
impacts of climate change and the actions individuals and
communities can take to reduce emissions. more commonplace and sobering
statistics about species decline have
Increase investment in public transport, walking, and cycling become available.’
infrastructure to reduce reliance on cars, and support the
—Councillor Dr Jennifer Alden, City of Greater Bendigo
transition to electric vehicles.
Strengthen the government’s approach to community

engagement under the Climate Change Act 2017 (Vic). Figure 6 Submissions and oral evidence
provided by community members to the
Amend the Planning and Environment Act 1987 (Vic) and/or Tackling Climate Change in Victorian
the Climate Change Act 2017 (Vic) to ensure that consideration Communities Inquiry
of climate change receives stronger emphasis in the Victorian
planning system.
LEGISLATION
Increase funding for research and development into new
technologies and solutions for tackling climate change.
Planning and Environment Act 1987 (Vic)
Figure 7 Examples of recommendations for climate change law reform in the parliamentary Climate Change Act 2017 (Vic)
committee’s report to the Victorian Parliament
Influence of the inquiry on law reform

In its response to the inquiry on 24 June 2021, the Victorian Government stated
WANT TO KNOW MORE?
that it fully supported, supported in part, or supported in principle 67 of the 72
recommendations. However, it was under no obligation to implement law reform You can find out more about
parliamentary committees, as well as
based on these recommendations. Additionally, parliament ‘support[ed] in principle’
current and past inquiries by searching
34 of these recommendations, meaning it aligned with the broad idea of them, but
‘Parliament of Victoria Committees’ on
was unable to create law reform immediately. the internet and clicking the Parliament
of Victoria (2023) webpage.

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Since then, the Victorian Government has initiated responses to these

recommendations, including through:
LEGISLATION • the preparation of a five-yearly Adaptation Action Plan (AAP) under the Climate
9F THEORY
Change Act 2017 (Vic), to improve the resilience of seven key systems vulnerable
Local Government Act 2020 (Vic) to climate impacts.
• the introduction of reforms to remove barriers to household participation and
expand opportunities for local councils to offer the Environmental Upgrade
Finance (EUF) mechanism via legislative amendments in the Local Government
Act 2020 (Vic).
• increased investment in public transport infrastructure and supporting the
USEFUL TIP transition to electric vehicles.
The VCE Legal Studies Study Design • increased funding for research and development into new technologies and
indicates you only need to know one solutions for tackling climate change.
recent inquiry by one parliamentary
committee OR one royal commission.
This is your choice, so pick something DEEP DIVE
you are interested in or one that
your teacher suggests is appropriate. Inquiry into Tackling Climate Change in Victorian Communities
VCAA requires examples of ‘recent If you choose to focus on this inquiry, search ‘Inquiry into Tackling Climate Change
inquiries’ to be from the past four in Victorian Communities’ and click the Victorian Parliament (2021) webpage to find
years, so make sure your chosen out more about the investigative process undertaken by the Legislative Assembly
inquiry occurred within this timeframe. Environment Committee.
LESSON LINK The ability of parliamentary committees

You learnt about the reasons for law
reform in 9A Reasons for law reform.
to influence law reform 4.2.6.4
Whilst parliamentary committees conduct investigations to make recommendations
for law reform, parliament is under no obligation to implement this advice.
Table 3 The strengths and limitations of parliamentary committees in influencing law reform
• Parliamentary committees can investigate specific matters • Parliament has no obligation to implement law reform
of policy or government performance in-depth, ensuring based on the recommendations made by the committee.
parliament has a thorough understanding of the issue • Parliamentary committees may be unable to analyse all
in question. issues or concerns, due to limited government funding.
• Parliamentary committees can invite submissions from • Parliamentary committees may not be independent, meaning
members of the community and listen to their evidence biases could exist where the committee is predominantly
at hearings. This can ensure the committee’s proposed composed of members from the same political party, or where
recommendations for law reform are reflective of members are split along political party lines and do not provide
community views and attitudes and consequently, a uniform set of recommendations.
more likely to be accepted and appreciated by society.
• Parliamentary committees are limited by the terms of
• Expert opinions obtained during investigations may reference and can only investigate issues within the scope
encourage parliament to adopt a parliamentary committee’s of these conditions.
recommendations for new laws.
• Parliamentary committees can be costly. For example, there
• Parliamentary committees have coercive powers that can are often high costs associated with paying experts for their
ensure the greatest degree of truth is obtained, potentially opinions on particular issues.
increasing the likelihood of parliament adopting given
• The process of conducting thorough investigations
recommendations.
is time-consuming, especially in situations where the
• Parliamentary committees are created by, and operate under, committee receives a large number of submissions.
the authority of parliament, meaning their recommendations
• As the community is not always aware of the existence
may be more influential in law reform.
of parliamentary committees, the number of public
• Parliament is required to respond to a committee’s final report submissions received by a committee may be limited.
within six months and indicate whether it supports any Therefore, the recommendations may not accurately
recommendations. Therefore, parliament must demonstrate reflect societal views.
its consideration of each recommendation and that it has only
rejected suggestions on a valid basis.

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REAL WORLD EXAMPLE
Who would not want to expand Melbourne’s free tram zone?
9F QUESTIONS
In November 2020, the Legislative Council Economy and Infrastructure Committee
presented its final report into its inquiry on expanding Melbourne’s free tram zone.
The standing committee received 405 submissions from members of the community,
including students and regular tram travellers. A significant number of these submissions
requested an extension of the free tram area around the University of Melbourne and
other universities in the CBD. The committee also conducted three days of public hearings
to hear from witnesses.
As a result, the committee made 11 recommendations, including to provide free public
transport to full-time students and Senior Card holders, which is highly reflective of and
consistent with community views and attitudes expressed during the inquiry.
In its response in September 2021, the Victorian Government supported four of the
recommendations and supported in part two of the recommendations. The government
supported in part the recommendation to provide free public transport for full-time
students and Senior Card holders, expressing that school students already receive
additional subsidies on public transport trips in Victoria. However, the government refused
to support five of the recommendations made by the committee, including the expansion
Image: matias planasShutterstock.com
of the free tram zone to include the ‘Arts Precinct St Kilda Road’, therefore demonstrating
that parliament has no obligation to implement law reform based on committee Figure 8 The Legislative Council Economy
and Infrastructure Committee conducted
recommendations, even if they reflect societal views. an inquiry into expanding Melbourne’s free
Adapted from ‘Inquiry into expanding Melbourne’s free tram zone’ (Parliament of Victoria, 2021) tram zone
Lesson summary
• Parliamentary committees can influence law reform through their inquiries,
which demonstrate society’s views on contentious issues via written submissions
and public hearings involving the general population.
• Parliament is not obliged to implement law reform based on the recommendations
of parliamentary committees, so not all inquiries will lead to comprehensive
law reform.
• The Inquiry into Anti-Vilification Protections and the Inquiry into Tackling
Climate Change in Victorian Communities are two examples of inquiries from
Victorian parliamentary committees.
USEFUL TIP
ability of law reform bodies to influence a change in the law, using recent examples’.
Table 3 shows the strengths and limitations of parliamentary inquiries in influencing
law reform, with reference to the recent examples covered in this lesson. Therefore,
this can help you answer higher-mark questions requiring an evaluation of the ability
of parliamentary inquiries to influence a change in the law, using a recent example.
9F Questions
Question 1
Parliamentary committees bridge the gap between parliament and the people to ensure greater
representation of society’s views throughout legislative reform.
A. True
B. False

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Question 2
9F QUESTIONS
standing select
A committee is appointed for the life of parliament, whereas,
a committee is created for a specific purpose to investigate a policy issue.
Question 3
Which of the following is not a role of parliamentary committees?
A. Receive and analyse the terms of reference.
B. Create law reform by passing legislation.
C. Conduct a public hearing.
D. Present a final report to parliament containing recommendations for law reform.
E. Invite written submissions from the community, experts, and interest groups.
Question 4
Tick to the box to indicate whether the following statements are strengths or limitations of a parliamentary
committee’s ability to influence law reform.

I. Recommendations of law reform proposed by parliamentary committees are more likely to
reflect community attitudes and, consequently, parliament may be more willing to accept them.
II. Parliament does not have to implement law reform based on the recommendations made by
the committee.
III. Parliamentary committees can only investigate issues within the scope of the terms of reference.
IV. Parliament may be more likely to adopt recommendations for new laws that are based on
expert opinions obtained during the investigations.
Question 5
Which of the following statements are correct about the Legislative Assembly Legal and Social Issues
Committee’s Inquiry into Anti-Vilification Protections? (Select all that apply)
A. The committee received 62 submissions from individuals, organisations, experts, and interest groups
in the community.
B. The committee created laws based on their own recommendations, such as banning the display
of symbols of Nazi ideology, such as the Nazi swastika.
C. The committee was influential in its recommendations for law reform as the Victorian Government
supported, or supported in principle, 34 of the 36 recommendations made by the committee.
D. The committee did not conduct a public hearing as it received enough information from community
submissions.
Question 6
Which of the following statements are correct about the Legislative Assembly Environment Committee’s
Inquiry into Tackling Climate Change in Victorian Communities? (Select all that apply)
A. During its investigation into climate change law reform in Victoria, the committee also investigated the
need for law reform in relation to climate change throughout Australia, as the members of the committee
were passionate about climate change.
B. The terms of reference limited the committee to investigating the actions being taken to combat climate
change in urban, rural, and regional communities of Victoria and how the Victorian Government could
support these communities.

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C. The committee conducted 15 days of public hearings to obtain evidence from witnesses in order
to determine areas for law reform.
D. In its response, the government only accepted approximately half of the 72 recommendations for
9F QUESTIONS
law reform and thus, the inquiry was a waste of time.
Question 7
Parliamentary committees cannot consist of members from both Houses of Parliament.
A. True
B. False
Preparing for exams

Standard exam-style
Explain one strength of parliamentary committees in influencing law reform, referring to one recent
parliamentary committee inquiry.
The increased use of social media among young people has raised concerns about the need for greater
protection of youth. The Australian Government is particularly concerned about teenagers being exposed
to inappropriate content, as well as an increase in cyberbullying.
Explain how a parliamentary committee could influence law reform to implement greater protections for
youth in relation to social media.
Extended response
Use your answer to question 10 to support your response to questions 11 and 13.
Question 10
Tick the box to indicate whether the following statements are strengths or limitations of a parliamentary
committees in influencing law reform.

I. Parliamentary committees can invite submissions from members of the community and hear
their evidence at hearings, ensuring recommendations for law reform are reflective of community
views and attitudes.
II. Parliament does not have to implement law reform based on the recommendations made by
the committee.
III. Parliamentary committees are limited by the terms of reference and can only investigate issues
within the scope of these terms.
IV. Parliament may be more likely to adopt recommendations for new laws if they have been
supported by expert opinions obtained during the investigations.
V. Parliamentary committees can investigate specific matters of policy or government performance

and these investigations can be in-depth and thorough.
VI. As the community is not always aware of the existence of parliamentary committees, the number
of public submissions received by a committee may be limited. Therefore, the recommendations
may not accurately reflect societal views.

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Referring to one recent parliamentary committee inquiry, explain one strength and one limitation of parliamentary
committees in influencing a change in the law.
9F QUESTIONS
Question 12
Tick the box to indicate whether the following statements are strengths or limitations of the Legislative
Assembly Environment Committee (LAEC) influencing a change in the law in its inquiry into Tackling Climate
Change in Victorian Communities.

I. The LAEC was only able to investigate issues within the scope of the actions being taken to
combat climate change in urban, rural, and regional communities of Victoria and how the
Victorian Government could support these communities.
II. The committee received 162 submissions from the community. Therefore, its recommendations
for law reform were reflective of community views.
III. The LAEC conducted an in-depth and thorough investigation as it received 162 submissions
and conducted 15 days of public hearings.
IV. Whilst parliament supported 67 of the 72 recommendations for law reform, the Victorian
Government was under no obligation to implement law reform based on the recommendations.
‘Parliamentary committees serve a number of valuable purposes in influencing law reform.’
Evaluate the ability of parliamentary committees to influence a change in the law, with reference to one recent
inquiry that you have studied.

Question 14
Which of the following statements are correct about the Victorian Law Reform Commission (VLRC) and
parliamentary committees? (Select all that apply)
A. The VLRC is independent of political parties and is able to review laws on controversial matters
objectively, unlike parliamentary committees which may not be independent if the committee is
composed predominantly of members of government, for example.
B. Parliamentary committees can investigate smaller issues, such as community law reform projects,
without terms of reference. Therefore, their investigations may be more effective than the VLRC
as this body cannot investigate issues without terms of reference.
C. Parliamentary committees are created by, and operate under, the authority of parliament, meaning
their recommendations may be more influential on law reform compared to the VLRC as this body
is independent of the government.
D. Parliament is obliged to create law reform based on the recommendations made by parliamentary
committees, whereas this is not the case for the VLRC given that it is an independent body.
‘There are other bodies that are more effective than the VLRC in influencing law reform.’
With reference to parliamentary committees, discuss the extent to which you agree with this statement.

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10
CHAPTER 10
Constitutional reform
10A Reasons for constitutional reform Constitutional reform

• reasons for constitutional reform
10B Referendums
• the requirement for the approval of the
10C Factors that affect the success of referendums Commonwealth Houses of Parliament and
a double majority in a referendum
10D The 1967 referendum
• factors affecting the success of a referendum
10E Possible future constitutional reform • the significance of the 1967 referendum about
First Nations people
• possible future constitutional reform, including
Image: Rasdi Abdul Rahman/Shutterstock.com
reform to establish a First Nations Voice in the
Study design information It is advised that teachers and

students refer to the latest version of the VCE Legal Studies
Study Design (VCAA, n.d.-b) for the most up-to-date
information about key knowledge dot points, particularly
in relation to those in Chapter 10. This textbook reflects the
curriculum as of November 2023. However, VCAA indicated
at this time there was potential for some amendments to the
curriculum, such as in relation to the 2023 First Nations Voice
to Parliament referendum. You can refer to the online version
of this textbook for any Edrolo updates to content that reflects
any potential changes to the Study Design for this chapter.
451
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10A Reasons for constitutional reform

• reasons for constitutional reform
10A 10B 10C 10D 10E

Image: Africa Studio/Shutterstock.com
‘Progress is impossible without change, and 4.2.7.1.1 Shifting societal attitudes

those who cannot change their minds cannot 4.2.7.1.2 Rights’ protection
4.2.7.1
change anything.’—George Bernard Shaw
Reasons for 4.2.7.1.3 To remove or give power to the states
(Irish playwright and political activist)
constitutional
4.2.7.1.4 Global events
Change is necessary for every society, but reform
what factors inspire constitutional change? 4.2.7.1.5 High Court decisions
Does public pressure play a role in driving
4.2.7.1.6 Political agendas
alterations to the law in Australia, or is it
up to politicians to make changes as they 4.2.7.1.7 Reconciliation with First Nations peoples
see fit? 4.2.7.1.8 To create better political/legal processes
Lesson introduction
As the Australian Constitution was drafted at the end of the 19th century, just before
LESSON LINKS Federation in 1901, certain clauses have become outdated over time or more additions
You learnt about the Australian to the Constitution have been required. As a result, the founding document of Australia
Constitution in 7C The division has required amendments over the past century. These proposed alterations to the
of powers.
Constitution have occurred due to a variety of reasons.
You will learn more about referendums
in 10B Referendums.
Reasons for constitutional reform 4.2.7.1
The Australian Constitution is the founding document of Australia, created at the
time of Federation. According to s 128 of the Constitution, a referendum must be held
CONSTITUTION in order for the Constitution to be amended. In the past century, 44 referendums have
been conducted, however constitutional reform resulting from these referendums
Section 128 has only occurred eight times. There are various reasons why the Constitution may
be altered, or why alterations may at least be proposed, which include:
• shifting societal attitudes
KEY TERMS
• rights’ protection
Australian Constitution the founding
• to remove or give power to the states
document of Australia that sets out
the composition of the Australian • global events
Parliament, its function and layout, and • High Court decisions
its powers.
• political agendas
vote in which members of the electoral • reconciliation with First Nations peoples
roll vote ‘yes’ or ‘no’ to alter the • to create better political/ legal processes.
Constitutional reform alterations
made to the Australian Constitution Shifting societal attitudes 4.2.7.1.1
through the process of a successful The views and values held by the majority of Australian society are constantly shifting.
referendum. In a globalised world, Australia has become a more religiously and ethnically diverse
nation. Citizens of Australia have also become exposed to different cultures and ways
of life, shifting their values. For example, since 1971, the proportion of the Australian
population identifying as a Christian has declined from 86.2% of the population to just
43.9% of the population by 2021 (Australian Bureau of Statistics, 2022). As a result of
these changes in societal attitudes, constitutional reform has been initiated.
452 Chapter 10: Constitutional reform

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Shifts in societal values have been a driver for constitutional reform regarding First
LESSON LINK
Nations rights. For example, as colonised, white Australian society increasingly
began to perceive First Nations peoples as equals, the 1967 referendum was initiated You will learn more about the 1967
10A THEORY
First Nations referendum in
to reflect this societal change in the Constitution.
REAL WORLD EXAMPLE
Calls to abandon the monarchy

In 1999, a referendum was held asking Australian citizens whether they wanted Australia
to become a republic instead of a constitutional monarchy. Whilst the referendum failed in
1999, there has remained consistent debate surrounding whether Australia should transition
away from its colonialist past by cutting all ties to the British monarchy. 2022 figures revealed
37% of Australians support keeping Australia as a monarchy, whilst 43% support Australia
becoming a republic. This is a significant increase from the 15% of Australians who favoured
Australia being a republic in 1953.
Currently, one of the main arguments for Australia becoming a republic is to demonstrate
clear contempt for the racist and imperialist actions of the British Monarchy. In 2022, Adam
Bandt, leader of the Greens Party, asserted he could not ‘mourn the leader of a racist empire
built on stolen lives, land, and wealth of colonised peoples’ following Queen Elizabeth II’s
death. He argued Australia ‘needed to become a republic’ to strive for reconciliation with First
Nations peoples. Figure 1 Shifting societal attitudes was a
cause for the proposed constitutional reform
Adapted from ‘Australia ‘needs to become a republic’: Bandt calls for change in wake of Queen’s death’ (Butler, 2022) for Australia to become a republic
WANT TO KNOW MORE? LEGAL VOCABULARY

In 1999, the Australian Constitutional Referendum Study (ACRS) was conducted by Republic a form of government
the Australian Election Study to investigate Australian attitudes regarding the 1999 whereby a state is ruled by
referendum. The 1999 ACRS analysed the political attitudes and behaviour of the representatives from the population’s
Australian public in the lead up to the referendum, ‘investigating the patterns of public citizens.
opinion concerning the republic’. Constitutional monarchy a system in
You can find out more about their findings and discover the attitudes and knowledge which the Crown is the Head of State,
of people in 1999 regarding the referendum by searching ‘ACRS Study 1999’ and clicking and a parliament makes laws and
the ‘Australia Election Study’ webpage. manages government departments.
Rights’ protection 4.2.7.1.2

One of the roles of the Constitution is to ensure rights’ protection through both
LESSON LINK
express rights enshrined in the Constitution and implied rights which have been
You learnt about express rights in
interpreted by the High Court as being intended for protection by the Constitution.
7K The Constitution as a check on
Adding to these rights’ protection in order to ensure certain rights are guaranteed
parliament – express protection
for all Australians has acted as one of the drivers for constitutional reform. of rights.
REAL WORLD EXAMPLE
Proposed expansion of freedom of religion right

In 1988, a referendum was held after the Constitution Alteration (Rights and Freedoms) Bill
1988 was passed through the Commonwealth Houses of Parliament. The proposed reform
aimed to guarantee Australians various civil rights, in relation to trials by jury, freedom
of religion, and compulsory acquisition of property. Bob Hawke, the prime minister who
initiated the Constitutional revision, said the reform was intended to extend the express right
of ‘freedom of religion’ to ensure that ‘Australians [could] follow their own religious beliefs
subject to the laws which govern us all’.
However, there was much debate surrounding the referendum with many believing it aimed
to abolish religions. The referendum was ultimately unsuccessful due to the Australian public
broadly believing the proposed changes could impede on the protection of human rights,
such as the right to freedom of religion. Figure 2 Bob Hawke aimed to expand the
express right to freedom of religion
Adapted from ‘Prime Minister’s Speech to the Victorian State Parliamentary Press Gallery Thursday – 1 September
1988’ (Department of the Prime Minister and Cabinet, 1988)

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To remove or give power to the states 4.2.7.1.3

The Australian Constitution establishes which matters the Commonwealth
LESSON LINK
10A THEORY
Parliament has the power to make laws about. Constitutional reform may occur in
You learnt about concurrent, exclusive, order to make exclusive powers into residual or concurrent powers so that the states
and residual powers in 7C The division can legislate on matters which the Commonwealth previously had sole control over.
of powers. The reverse situation may occur too, in which constitutional reform is enacted to
take power away from the states and ensure only the Commonwealth Parliament
can make laws on certain issues. State leaders, specifically the leaders of smaller
states, often oppose a ‘yes’ vote to these kinds of referendums which seek to remove
power from the states.
REAL WORLD EXAMPLE
Reform to increase economic powers of the Commonwealth

In 1973, prime minister Gough Whitlam posed two questions to the public in a referendum.
The first sought to provide the Commonwealth Parliament with the power to make laws
with respect to the prices of goods and services, such as by implementing a Prices Tribunal.
The second question asked whether the Commonwealth Parliament should have the power
to make laws with respect to income. At the time, rising inflation in Australia concerned
Whitlam and he sought to rectify this by allowing the Commonwealth to legislate on prices
and income, enabling them to make anti-inflationary policies. He made specific promises that
the Commonwealth would introduce income legislation to ensure equal pay for women and
introduce a quarterly cost of living adjustment to wages.
The Labor government supported the ‘yes’ vote for both referendum questions as they
believed the control of prices and incomes should be concentrated in the Commonwealth
Parliament, so that the Federal government could make effective economic policies.
Figure 3 The 1973 prices and income Both referendum questions failed, likely due to the strong ‘no’ campaign led by the Liberal
referendums aimed to change prices and
income from being controlled solely opposition government, who claimed the Labor government was ‘power hungry’ and that
by the states the referendums, if successful, would lead to excessive government control.
Adapted from ‘Prices and incomes referendum 1973: The pattern of failure’ (Rydon, 1974)
Global events 4.2.7.1.4

Major global events rapidly shift the desires, needs, and values held by members
of society. International wars, and their subsequent effects on the economy and
society, can highlight the potential need for constitutional reform in Australia due to
the needs of Australians shifting after such catastrophes. Wars also may cause shifts
in the ideologies of citizens, again promoting a push for constitutional changes.
REAL WORLD EXAMPLE
Rectifying the impact of World War II

In 1944, the ‘Post-war Reconstruction and Democratic Rights’ referendum aimed to give the
Commonwealth the power to legislate on 14 different matters, including the rehabilitation
of ex-servicemen, national health, employment and unemployment, and ‘the people of
the Aboriginal race’. If implemented, these powers would expire five years after Australia
stopped participating in World War II.
The Curtin government was compelled to introduce this constitutional reform in order to
have extra powers to fully administer its plans for post-war reconstruction. The constitution
alteration bill stated that the 14 matters it sought to legislate on intended to ‘achieve
economic security and social justice’ in order to rectify issues the war had placed on aspects
of Australian society, such as employment. The Attorney General at the time, Dr Evatt, stated
Image: Australian War Memorial that ‘social and economic disorganisation, chaos in production, mounting unemployment,
Figure 4 The Curtin government proposed wide-spread social insecurity – in short, anarchy’, would occur without the amendments.
constitutional reform to allow Australia to The referendum was unsuccessful with just 45.99% of the Australian population voting
better address post-war reconstruction
‘yes’ to the proposal, likely due to fears that the Commonwealth would gain too many
powers from the constitutional change.
Adapted from ‘The opposition and the “powers” referendum, 1944’ (Waters, 1969)

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REAL WORLD EXAMPLE
The fight against communism’s spread
10A THEORY
Following the surrender of Nazi Germany in 1945, the wartime alliance between the United
States (US) and the Soviet Union (USSR) quickly began to unravel. The Soviet Union had
begun installing left-wing governments in Eastern European states, creating the Hungarian
People’s Republic and Polish People’s Republic, for example. The US opposed this, believing
it needed to safeguard its own interest and protect these states against Soviet expansion.
The Cold War commenced under the Marshall Plan which intended to fight against the
communist regimes being installed by the USSR.
The Cold War had repercussions on Australia. Membership numbers of the Communist
Party peaked in Australia at an estimated 20,000 people during the Second World War.
In 1949, Robert Menzies became prime minister after running a campaign promising to ban
the Communist Party as fears rose around the impact communism would have on Australia.
Menzies created the Communist Party Dissolution Act 1950 (Cth) which declared the
Communist party to be unlawful. This Act was ruled by the High Court, in Australian
Communist Party v The Commonwealth (1951) 83 CLR 1, to be unconstitutional. Therefore,
Menzies put the issue to a constitutional referendum in 1951, seeking to give the
Commonwealth Parliament the power to ban the Communist Party. The proposed
amendment did not succeed as only 49.44% of the Australian population voted
Figure 5 The Cold War between the Soviet
in favour to this constitutional reform. However, it is clear from the attempted Union and the US resulted in members
referendum that global events greatly influence constitutional reform. of the Australian government opposing
communism and any supporters of it
Adapted from ‘The Communist Party Dissolution Act 1950’ (Australian Prime Ministers Centre, n.d.)
High Court decisions 4.2.7.1.5

The High Court has been able to recognise deficiencies of the Australian Constitution
and, in turn, influence its reform on multiple occasions. A case may be brought to
the High Court, which the court then makes a decision about, exposing areas where
constitutional reform is required. This proposed reform is either rejected or accepted
by Australians in a referendum.
In relation to the 1951 referendum, which was previously discussed, this arose as the
Australian Communist Party brought a case in the High Court against a new piece of
legislation introduced by the Commonwealth, the Communist Party Dissolution Act
1950 (Cth). The High Court declared the Communist Party Dissolution Act 1950 (Cth)
to be unconstitutional and therefore invalid. As a result, Robert Menzies initiated the
referendum in order to ensure the communist party could still be banned following
the High Court’s ruling against the decision.
LEGAL CASE
Attorney-General (Vic); Ex rel Dale v Commonwealth (Pharmaceutical

Benefits case) (1945) 71 CLR 237
Facts
In 1944, the Commonwealth Parliament passed the Pharmaceutical Benefits Act 1944
(Cth). However, its validity was challenged in the High Court by the Victorian Attorney-
General, on behalf of officers of the Medical Society of Victoria.
Legal issue
The main issue was whether the Pharmaceutical Benefits Act was authorised under s 81
of the Australian Constitution, which allowed the Commonwealth Parliament to use
money ‘for the purposes of the Commonwealth’. The Attorney-General, for the State
of Victoria, argued the Commonwealth only had the power to devote money to areas
of exclusive power, not for issues within the State’s ‘field of legislative power’. The
responsibility for health care at the time, including the control of the general practice of
medicine, was retained by the states.
Continues →

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LEGAL CASE
Attorney-General (Vic); Ex rel Dale v Commonwealth (Pharmaceutical

10A THEORY
Benefits case) (1945) 71 CLR 237 – Continued

Decision
The majority of Justices found that the Pharmaceutical Benefits Act was invalid on the basis
that it had the power to supersede state laws, violating citizens’ rights. He contended
the Commonwealth had no power to legislate on public health issues. Section 51 of the
Constitution did not extend to pharmaceutical benefits, so the Act was not authorised.
Significance
The High Court decision cast doubt on the validity of a number of Acts that the
Commonwealth Parliament had already passed, or intended to pass in the future with
regard to social services, such as unemployment benefits and widows’ pensions.
To address this issue, in 1946, the Constitution Alteration (Social Services) Act 1946 (Cth)
was passed by the Houses of Parliament which, if approved at a referendum, would add
a paragraph to s 51 of the Constitution that stated:
‘(xxiiiA) t he provision of maternity allowances, widows’ pensions, child
endowment, unemployment, pharmaceutical, sickness and hospital
benefits, medical and dental services (but not so as to authorize any form
of civil conscription), benefits to students and family allowances.’
The referendum was successful. This led to a new Pharmaceutical Benefits Scheme being
established which ultimately led to the creation of Medicare, the government-subsidised
health care system in Australia.
Political agendas 4.2.7.1.6

Constitutional reform may be instigated in order for a politician to push their own
political agenda. Often, this reason for constitutional reform is criticised by the
public or the opposition party, leading to a ‘no’ vote as the public does not want to
support a change solely being pushed for self-serving objectives.
REAL WORLD EXAMPLE
A politician’s preamble?
In 1999, John Howard initiated the Preamble referendum which called to add a preamble
into the Constitution that would make specific references to God, democracy, Indigenous
‘custodianship’, and the equality of men and women. A preamble is an introduction
designed to communicate the intention of the Constitution. Howard claimed that his
proposal would enhance ‘the national unity of [the] country’.
Criticisms about the proposed preamble quickly surfaced. In the ‘no’ campaign,
published in the Official Referendum Pamphlet by the Australian Electoral Commission,
advocates against the Preamble declared the Preamble was ‘part of a political game’ and
a ‘politicians’ preamble’. Many claimed that the referendum was designed to make John
Howard appear to be an advocate for change or politically ‘woke’.
Whether political agendas played a role in influencing this attempt at constitutional
Figure 6 Those campaigning for a ‘no’ change can be argued from both sides, but the example nevertheless indicates that there
result claimed that John Howard’s proposed may be potential for some referendums to be influenced by political agendas.
preamble to the Constitution was initiated as
part of his own political game Adapted from ‘Your official Referendum pamphlet’ (Australian Electoral Commission, 1999) and ‘With Hope in God,
the Prime Minister and the Poet: Lessons from the 1999 Referendum on the Preamble’ (McKenna et al., 2001)

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Reconciliation with First Nations peoples 4.2.7.1.7

Considering its establishment in 1901, the Australian Constitution has required
LESSON LINK
10A THEORY
changes as Australian society has aimed for reconciliation with First Nations peoples.
You will learn more about the Voice
The 2023 Voice to Parliament referendum is indicative of the influence that a desire
to Parliament in 10E Possible future
for reconciliation with the Aboriginal and Torres Strait Islander community has constitutional reform.
on constitutional reform. It was once deemed acceptable for First Nations peoples
to be stripped of fundamental rights in a democracy, such as the right to be counted
as a citizen in a census. There is now a broad understanding in Australia that this
racial discrimination is unacceptable, and goes against the protection of human
rights and equality in our communities.
As a result of society pressuring the government to enact changes to better
protect Aboriginal and Torres Strait Islander’s rights and promote reconciliation,
constitutional reform has occurred in the past.
REAL WORLD EXAMPLE
Addressing reconciliation by constitutional reform

In 1967, there was a referendum conducted that sought to ensure First Nations peoples
were counted in the national census and to allow the Commonwealth to pass Acts on
Aboriginal and Torres Strait Islander peoples so that their rights were better protected.
The referendum was successful, with 90.77% of Australians voting in favour for the
reform, the highest percentage of ‘yes’ votes in referendum history in Australia. Following
the constitutional amendment, the Commonwealth Parliament was able to make laws
regarding First Nations peoples.
One of these Acts was the Aboriginal and Torres Strait Islander Heritage Protection Act LEGISLATION
1984 (Cth) which enabled the Commonwealth to protect cultural heritage under threat
in the case that state or territory laws had failed to protect it. This helped to protect the Aboriginal and Torres Strait Islander
cultural rights of First Nations peoples and aided in efforts for reconciliation. Heritage Protection Act 1984 (Cth)
Adapted from ‘Aboriginal and Torres Strait Islander Heritage Protection Act 1984 – General Guide and Application
Form’ (Department of Climate Change, Energy, the Environment and Water, 2023)
Image: Brooke Ottley/Shutterstock.com

Figure 7 The Constitution was reformed to allow the Commonwealth Parliament to create laws
that better protected First Nations rights

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To create better political/legal processes 4.2.7.1.8

The Constitution establishes political and legal processes that must be followed.
10A THEORY
Therefore, considering it is centuries old, some of these processes have required

reform in order to improve the efficiency and ability of the political and legal systems
to create and adjudicate just laws. Some of the proposed changes to Australia’s
political system would require substantive alterations to the current system, such as
transforming Australia into a republic, as previously discussed. Other changes, such as
introducing a compulsory retirement age for judges, have less transformative effects
on Australian society.
Past referendums seeking to alter the political and legal processes in Australia include:
• the 1977 Retirement of Judges referendum, which sought to establish a retiring
age of 70 years for judges of federal courts. This proposal was viewed as necessary
as allowing younger judges to enter the courts would ensure ‘new ideas and fresh
social attitudes’ were upheld in the judicial branch of government, and would
prevent a situation where a judge, who was declining in health but unwilling to
resign, would continue deciding cases despite no longer being the most suitable
person to do so (Parliament of Australia, 2010). This referendum proposal was
successful, and the mandatory retirement of judges at 70 years old was enshrined
in the Constitution.
• the 1984 Terms of Senators referendum, which sought to alter the terms of
senators so they were no longer fixed and to mandate House of Representatives
and Senate elections being on the same day. Bob Hawke contended the
referendum, if successful, would ‘save the Australian taxpayers a good deal
of money, [...] reduce the disruption to business and the community generally
caused by too frequent elections, [and] mean simply, better government’ (1984).
This referendum was unsuccessful.
• the 1988 Parliamentary Terms referendum, which sought to increase the terms
served by members of the Houses of Representatives from three years to four
years, whilst decreasing Senate terms from a six-year fixed term to a four-year
fixed term, allowing for elections for members of both Houses of Parliament to
occur simultaneously. Bob Hawke argued the proposed change would result in
less costly and more stable ‘good government’. He believed ‘elected governments
deserve a fair go and enough time to implement their policies’, which introducing
this change would allow. This referendum was also unsuccessful.
Lesson summary
For a referendum to be initiated, multiple reasons for constitutional reform
USEFUL TIP
usually apply to the specific issue in question, all in conjunction with one another.
Whilst it is useful to have an The Constitution will likely continue to require reform to ensure the legal system
understanding of the many reasons that is able to keep up with alterations in society.
could lead to referendums and possible
constitutional reform, it may be helpful Table 1 Reasons for constitutional reform
to focus on understanding two or three
reasons in detail. Choose two to three Reason for constitutional reform Australian referendum examples
reasons for constitutional reform that
Shifting societal attitudes 1999 Republic referendum
you find to be most compelling, along
with their given Australian referendum 1967 First Nations referendum
examples, so you can use these in your 2023 Voice to Parliament referendum
responses to exam questions and in
School Assessed Coursework (SAC). Rights protection 1988 Rights and freedoms referendum
1967 First Nations referendum
To remove or give power to the states 1973 Prices and income referendum
Global events 1944 Post-war reconstruction referendum

1951 Communist party referendum
High Court decisions 1951 Communist party referendum

1946 Social services referendum
Continues →

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Table 1 Continued
Reason for constitutional reform Australian referendum examples
10A QUESTIONS
Political agendas 1999 Preamble referendum
Reconciliation with First Nations people 1967 First Nations referendum

2023 Voice to Parliament referendum
To create better political/ legal 1977 Retirement of judges referendum

processes
1984 Terms of senators referendum
1988 Parliamentary terms referendum
10A Questions
Question 1
There is only one reason for constitutional reform: for politicians to gain political leverage against the opposition.
A. True
B. False
Question 2
Which of the following statements are examples of reasons for constitutional reform?
A. Advances in technology have caused the Constitution to be changed as the introduction of IVF
technology, for example, has made certain sections of the Constitution redundant in current society.
B. Global events, such as wars, have caused constitutional reform to be initiated with the intent of allowing
the Federal government to better protect the Australian people and ensure post-war recovery.
C. Changes in societal values have led to alterations in the Constitution as behaviours that were once seen as
acceptable, such as discrimination against First Nations people, are now broadly frowned upon by society.
D. Improving the legal system has acted as a reason for constitutional reform. For example, the Constitution
was altered to establish the Koori Courts in order for the principles of justice to be better achieved.
Question 3
The 1973 prices and income referendums were driven by:
A. a desire to give the power to the Commonwealth Parliament to make laws with respect to prices and
income to better control inflation.
B. a change in societal values which prioritised income equality for men and women to defeat the
gender pay gap.
Question 4
One of the reasons that contributed to the 1951 Communist Party referendum was:
A. societal concerns about the communist ideology at the time due to the Cold War.
B. to provide power to the states to legislate on matters relating to the Communist Party.
Question 5
The Pharmaceutical Benefits Case 1945 was a High Court decision that led to:
A. the Court establishing legislation that allowed the government to make laws related to health care, such
as laws subsidising certain medicines.
B. a referendum to take place to provide the Commonwealth Parliament with the power to legislate on social
services, such as health care, which subsequently led to the system of Medicare being established.

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Question 6
10A QUESTIONS
1999 Preamble referendum 1999 Republic referendum
One possible reason, claimed by the ‘no’ campaign, for the was for John Howard
to push his own political agenda and appear politically woke. On the other hand, one reason for the
was to better reflect societal values as there had been shifts in Australian society,
with many citizens no longer wanting to be tied to Australia’s colonialist past.
Question 7
A number of reasons for constitutional reform can contribute to a single referendum proposal.
A. True
B. False
Preparing for exams

Standard exam-style
Prior to 1967, the Australian Constitution explicitly excluded Aboriginal and Torres Strait Islander peoples
from being counted as part of the Australian population. The pressure for change built rapidly in the 1960s as
Aboriginal and Torres Strait Islander activists, as well as non-indigenous activists, drew attention to the denial
of civil rights and discrimination against First Nations peoples. In 1967, a referendum took place which gave the
Commonwealth the power to legislate on matters concerning Aboriginal and Torres Strait Islander peoples and
which included them in the national census.
Referencing the 1967 First Nations referendum, explain one reason for constitutional reform.
Other than changes in societal attitudes, explain one reason why the Constitution may need to be changed.
Adapted from VCAA 2012 Q1b
With reference to two examples, outline two reasons for constitutional reform.
Referring to a past referendum in Australia, justify one reason why the referendum took place.
Adapted from VCAA 2016 Q9a
Extended response
Use your answers to question 12 and 13 to support your response to question 14.
Question 12
The only reason the Australian Constitution might need to change in the future is if attitudes and values of the
Australian population change.
A. True
B. False

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Question 13
Which of the following examples represent a possible reason for constitutional reform?
10A QUESTIONS
A. The need for the Commonwealth to have power to legislate over income and prices in order to combat
rampant inflation in 1973.
B. The outcome of a civil trial involving defamation in the Supreme Court of Victoria.
C. Shifts in the core values held by society, such as the broad desire of current society to better support First
Nations people and condemn the colonialist past of Australia.
D. The 1945 High Court decision in the Pharmaceutical Benefits Case, where it was found the Constitution did
not give power to the Commonwealth to legislate on pharmaceutical benefits.
E. The desire of a political party in power to pursue a political agenda so as to increase their approval
among voters.
‘The Constitution was well written in 1900, so the only reason for constitutional reform is progressions in
societal values.’
In your view, to what extent do you agree with this statement? Justify your answer.
In 1950, the events of the Cold War between the United States and the Soviet Union sparked concern
regarding the threat that communism posed to Australia’s security and defence. Many people did not
agree with the communist political ideology. The Commonwealth Parliament passed the Communist Party
Dissolution Act 1950 (Cth) in an attempt to prevent the spread of communism in Australia. The Act was
declared unconstitutional by the High Court. This led to a referendum which sought to alter the Constitution
to ban the communist party. The 1951 referendum was unsuccessful.
Question 15
Which of the following statements are true about reasons for the 1951 Communist Party referendum?
A. Shifting societal attitudes were a reason for the referendum, as there were fears about the growing presence
of communism in Australia, with many people disagreeing with the communist political ideology.
B. The global political climate and the events of the Cold War in 1950 led to concern that increasing support
for communism in Australia would be prejudicial to Australia’s security and defence.
C. The desire to take power away from the State Parliaments and concentrate the power to ban political
organisations in the Commonwealth Parliament.
D. A High Court decision declared the Communist Party Dissolution Act 1950 (Cth) to be unconstitutional.
Analyse the reasons for attempted constitutional reform associated with the 1951 Communist Party referendum.

In 1988, the Constitution Alteration (Rights and Freedoms) Bill 1988 was passed through the Houses of
Parliament and the Australian public had to vote on whether they approved alterations to the express rights
set out in the Constitution. Prime minister Bob Hawke contended the proposed constitutional reform aimed to
extend the express right of ‘freedom of religion’ to ensure that ‘Australians [could] follow their own religious
beliefs subject to the laws which govern us all.’
a. With reference to the 1988 Rights and Freedoms referendum, explain the term ‘express rights’. 3 MARKS
b. With reference to the 1988 Rights and Freedoms referendum, outline one reason for this proposed
constitutional reform. 2 MARKS

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10B Referendums
• the requirement for the approval of the Commonwealth Houses of Parliament

and a double majority in a referendum
10A 10B 10C 10D 10E
4.2.8.1 Approval of the Commonwealth Houses of Parliament

Image: AlexLMX/Shutterstock.com
‘There is nothing permanent except change’ 4.2.8.2 Double majority in a referendum

—Heraclitus (Greek philosopher,
535-475 BCE)
Change is vital to our lives and, more
broadly, society. So if this is the case,
why do Australians seem so reluctant to
support constitutional change? Is the lack
of success of past referendums due to the
Australian public resisting change, or is the
process of changing the Constitution too
difficult to amount to successful change?
Lesson introduction
CONSTITUTION Section 128 of the Australian Constitution protects the wording of the Constitution
from being arbitrarily changed in order to protect the rights of Australians.
Section 128 =The Constitution cannot be changed by members of parliament in the same way
legislation can be changed. Since 1901, 45 proposed changes to the Constitution
have been put to voters in a referendum. Of these, only eight have resulted in changes
to the wording of the Constitution. The most recent referendum was in 2023 and the
most recent successful referendum was in 1977.
Approval of the Commonwealth Houses

of Parliament 4.2.8.1
Section 128 of the Constitution states the process of changing the words of the
KEY TERM
Australian Constitution. Before a change can be proposed to Australians in a
Referendum a compulsory national referendum, both houses of the Federal Parliament must agree to put the change
vote in which members of the electoral to the Australian people in a referendum.
This process begins with a member of parliament introducing a constitution
alteration bill into either one of the Houses of Parliament; the Senate or the House
LEGAL VOCABULARY of Representatives. Normally, the bill must then be passed by an absolute majority
Absolute majority a result that occurs vote in both houses. However, in some circumstances, the bill only needs to be
when one person more than half of passed by an absolute majority in one house and the Governor-General may submit
the total number of members in a the bill to electors for a referendum to occur.
House of Parliament, whether they are
The passage of the bill through parliament is the same as a normal bill, with the
all present or not, vote in favour of a
exception of the absolute majority requirement.
proposed reform.

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WANT TO KNOW MORE? LESSON LINKS

The process of a constitution alteration bill passing with the absolute majority of only You learnt about the Houses of
10B THEORY
one House is: Parliament in 7A The Commonwealth
1. The originating house passes a bill that is rejected by the other house, or the other Parliament and the Crown in
house includes amendments to the bill which the originating house does not law-making.
agree with. You learnt about the acquisition of
2. After three months, the originating house may pass the bill again in its original form property on ‘just terms’ in 7K The
or the form containing the suggested amendments. Constitution as a check on parliament
– express protection of rights.
3. If the other house rejects the bill again, or includes amendments that the originating
house does not agree with, the Governor-General may submit the bill passed in
the originating house, with or without amendments, to electors for a referendum
to occur.
4. The Governor-General will typically be acting on the advice of ministers when
doing so.
REAL WORLD EXAMPLE
Kattastrophe! Property protection reform fails in parliament

On June 21 2010, Bob Katter introduced the Constitution Alteration (Just Terms) Bill
2010 (Cth) to the House of Representatives. The bill aimed to reform s 51(xxxi) of the
Australian Constitution which currently states that parliament has the power to make
laws with respect to ‘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’.
Image: 89stocker/Shutterstock.com
The Constitution Alteration (Just Terms) Bill proposed that the Constitution should be
Figure 1 A proposed amendment to the
extended to enforce the Commonwealth paying ‘just terms’ not just for the acquisition of
Constitution related to the protection of
property but also when laws are enforced, placing restrictions on the exercise of ‘property property rights failed after not receiving
rights’. The bill also proposed amendments to s 115A of the Constitution in order to prohibit approval from the Commonwealth Houses
state laws from acquiring property or restricting the exercise of property rights of any person, of Parliament
except on ‘just terms’. This was suggested as state constitutions currently do not guarantee
‘just terms’ compensation. CONSTITUTION
On 19 July 2010, the bill was ‘lapsed at dissolution’. This means that the House of Section 51(xxxi)
Representatives was dissolved, so all proceedings came to an end and all bills on the
Section 115A
Notice Paper lapsed. After the dissolution, the bill was not re-introduced into parliament
and thus, never achieved the approval of parliament, preventing the constitutional change
from occurring.
Adapted from ‘’Property’ and acquisition of just terms’ (Parliament of Australia, 2010)
Double majority in a referendum 4.2.8.2

Once the constitution alteration bill has been passed, the question on whether the
KEY TERM
Constitution should be amended is posed to the Australian people. For a referendum
to be successful, the proposal must achieve a double majority, which means there Double majority a voting system
is a national majority ‘yes’ vote in conjunction with the majority of voters in four or that requires a majority of voters
more states approving the proposed constitutional reform. Australia-wide to vote ‘yes’, and
a majority of voters in the majority
of states to vote ‘yes’.
STEP 1 STEP 2 STEP 3 STEP 4 STEP 5
Legislation called The proposed The majority of The majority of The legislation
the ‘constitution change is put to the Australian the population receives royal LESSON LINK
alteration bill’ voters in a population, in a majority of assent from the You learnt about constitutional reform in
outlining the compulsory more than 50%, states (four or Governor-General
10A Reasons for constitutional reform.
proposed change yes/no vote. vote ‘yes’ to the more states) and the
to the wording of This must take proposed vote ‘yes’. Constitution is
the Constitution place within two change. amended.
passes through to six months of
both Houses of the the bill passing
Commonwealth through
Parliament. parliament.
Figure 2 The steps for a successful referendum
10B Referendums 463

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REAL WORLD EXAMPLE
State scheming! States undermine referendum’s success

10B THEORY
The Constitution Alteration (Simultaneous Elections) Bill 1977 proposed to introduce

simultaneous elections for both Houses of Parliament so that Senate elections were held
at the same time as elections for the House of Representatives. There was bipartisan
support for the ‘yes’ vote in this proposed referendum.
The referendum received a ‘yes’ vote from 62.22% of the Australian population, passing
the requirement of a national majority. However, New South Wales, Victoria, and South
Australia were the only states where a majority of the state’s population voted in favour.
Hence, the requirement for a double majority was not achieved as only 3/6 states held
Image: New Africa/Shutterstock.com
a majority ‘yes’ vote.
Figure 3 The 1977 Simultaneous elections
referendum was unsuccessful as the double The Prime Minister at the time, Malcolm Fraser, condemned the ‘misleading campaign
majority requirement failed [that] was mounted against the simultaneous elections proposal’ (1977). In the lead-up
to the 1977 Simultaneous elections referendum, leaders of smaller Australian states,
such as Queensland, spent ‘huge amounts of taxpayers’ funds to mount an advertising
campaign which ‘grossly distort[ed] the facts’ according to Fraser. The Queensland state
government believed simultaneous elections would reduce the power of the Senate,
known as the state’s house, subsequently limiting the protection of less populous states.
The ‘no’ vote campaigns pursued by state governments ultimately caused the 1977
Simultaneous elections referendum to be unsuccessful as the double majority
requirement was not met.
Adapted from ‘Prime Minister’s Speech to Victorian Referendum Campaign Meeting’ (Department of the Prime
Minister and Cabinet, 1977)
LESSON LINK DEEP DIVE
You will learn more about bipartisan Lowering the hurdle for referendum success
support in 10C Factors that affect the In 1958, the Joint Committee on Constitutional Review made the recommendation that
success of referendums. section 128 of the Australian Constitution should be amended so that referendums
would be more likely to be successful. The proposal was that a constitutional change
could occur so long as a bill achieved the approval of the Houses of Parliament, the
USEFUL TIP majority of all electors voted ‘yes’ to the change, and a majority of the electors in at
least one-half of the states, 3/6, voted ‘yes’. This suggestion would remove the hurdle
When mentioning the requirement for
of the requirement for 4/6 states to have a majority of ‘yes’ votes, decreasing the
a double majority, use the statistics
requirement to just 3/6 states maintaining a majority.
to highlight your understanding of
constitutional change. When talking In 1959, the ‘Report from the Joint Committee on Constitutional Review’ revisited
about the requirement for a national this proposal. Reviewing the lack of success of past referendums, the Committee
majority ‘yes’ vote, use the statistic determined that ‘the Constitution [was] exceedingly difficult to amend’.
of more than 50% of the Australian Adopting the recommendation of the Constitutional Review Committee, in 1974,
population. When talking about the Gough Whitlam announced a referendum. The question asked to Australians at this
requirement for a majority of people referendum was whether the Constitution should be allowed to be altered if a majority
in a majority of states to approve the of all the electors in Australia approved the reform and also a majority of the electors
change, use the statistic of 4/6 or in 3/6 of the states. This referendum proposal in 1974 received neither a national
more states. majority nor a majority of states with a ‘yes’ vote, therefore the constitutional reform
did not occur.
Many scholars have continued to argue that the current requirements for a successful
referendum should be reformed to increase the likelihood of a successful referendum.
Figure 4 Prime Minister of Australia in 1974, Gough Whitlam, proposed amending the
Constitution to increase the likelihood of successful referendums
Adapted from ‘The Australian experience with constitutional review’ (Saunder, 1994)

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DEEP DIVE USEFUL TIP
Was the same-sex marriage vote in 2017 a referendum? You can remember the process of
10B THEORY
the Constitution being amended
It is important to note that plebiscites, postal surveys, and referendums are all different by breaking the steps up into the
examples of situations whereby the Federal Parliament consults Australians before following categories:
legislating on matters.
• Parliament: Typically, an absolute
In 2017, the Australian Marriage Law Postal survey was conducted, which put the question
majority in both Houses of
to Australians as to whether they approve that same-sex couples should be legally allowed
to get married. It was voluntary and not binding, meaning that regardless of the outcome, Parliament must occur for a
parliament could still make their own decision as to whether approve of same-sex constitution alteration bill to be
marriage or not. passed, allowing for a referendum
A plebiscite, on the other hand, is compulsory for citizens to vote in. Once again, these to take place.
have no legal force as parliament can still make its own decisions regardless of the • People: Australian electors get
outcome. Plebiscites have no relevance to the Australian Constitution. to vote on whether they approve
Unlike both of these, a referendum is binding. Therefore, if the requirement of a double the proposed change to the
majority is made out, the proposed constitutional change must be put to royal assent. Constitution. The double majority
Referendums, like plebiscites, are compulsory for all members on the electoral roll to requirement must be met.
vote in. Contrary to postal votes and plebiscites which concern legislation, referendums • Governor-General: The Governor-
solely pose questions to the Australian public related to altering the Constitution. General provides royal assent to
the constitutional change and the
amendment is made.
Image: lazyllama/Shutterstock.com
Figure 5 The vote conducted in 2017 asking Australians whether they approved of same-sex
marriage was a postal survey, not a referendum
Adapted from ‘Fact check: Is the same-sex marriage survey a completely novel idea that is not actually a plebiscite?’
(Das, 2018)
Lesson summary
The process for successful constitutional reform in Australia is as follows:
1. A bill proposing constitutional reform must first be passed through both
Houses of Parliament with an absolute majority.
2. The proposed alteration to the Constitution must gain a national majority
‘yes’ vote.
3. 4/6 or more of the states must have a majority ‘yes’ vote.
4. If this double majority requirement is fulfilled, the bill can be transferred
to the Governor-General to gain royal assent.
5. The Constitution is altered.
Although this process can be rigid and has faced criticisms, it ensures the
foundational document of Australia cannot be arbitrarily changed.
10B Referendums 465

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Table 1 The strengths and limitations of the process of referendums
10B QUESTIONS
• The voters are directly involved in Australia’s process of • Referendums can be extremely expensive. For example,
constitutional amendment. This democratic involvement the 1999 Referendum cost $66,820,894 according to the
of the people in changing the system of government makes Australian Electoral Commission. This discourages prime
Australia different to many other nations around the world. ministers from wanting to hold a referendum and change the
For example, in the USA and Canada, the Constitution is Constitution due to its expense.
changed by elected law-makers, not by the voters. • Due to the double majority requirement, it can be
• Section 128 of the Constitution gives voters in Australia difficult for referendums to be successful. Only 8 of the 45
the power to reject changes to the Constitution after referendums that have been proposed in Australia’s history
such changes have been approved by the Commonwealth have been successful. Five of the unsuccessful referendums
Parliament. This empowers voters to approve or reject achieved the national majority requirement, yet did not
changes to the Constitution that politicians proposed. receive a ‘yes’ vote from the majority of the states.
• The ‘yes ‘ and ‘no’ format of the referendum is very clear and • Due to compulsory voting in Australia, people may vote not
simple to answer, reducing voter confusion. Therefore, votes by choice, but because they have to, causing them to cast a
are more likely to accurately reflect the views of Australians. vote at random. Therefore the result of a referendum may
• The requirement of a double majority for a referendum to be not necessarily reflect the views of all Australians.
passed ensures the equal protection of states. For example, • Referendums can be a time-consuming process as a bill
Tasmania has a smaller population than other states, but must be passed through both Houses of Parliament and
the opinion of its population is still considered as equally a referendum must be held to receive a ‘yes’ vote from
important as the consensus of a more populated state, like the majority of voters and the majority of electors in the
New South Wales. majority of states. This may discourage a prime minister
from initiating a referendum due to the time taken and
the likelihood of the vote being unsuccessful due to the
historical failures of Australian referendums.
10B Questions
Question 1
This referendum would be successful: 61% of the Australian population voted ‘yes’ and 3/6 of the states had
a majority of their population vote ‘yes’.
A. True
B. False
Question 2
Which of the following are requirements for the Australian Constitution to be altered? (Select all that apply)
A. The constitution alteration bill typically must be passed through both Houses of Parliament with an
absolute majority.
B. The bill must receive royal assent from the Governor-General.
C. The referendum proposal must achieve a national majority of electors voting ‘yes’ to the proposed change.
D. The King must personally provide royal assent to constitutional changes.
E. The referendum proposal must achieve a majority of electors in a majority of the states, so four or more
states, voting ‘yes’ to the proposed change.

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Question 3
The section of the Australian Constitution which prevents the wording of the Constitution from being
10B QUESTIONS
arbitrarily changed is:
A. section 128.
B. section 1.
C. section 54.
Question 4
Which of the following are correct about the strengths of the process of changing the Constitution in Australia?
A. Voters can reject changes to the Constitution that have been approved by the Commonwealth Parliament.
B. There is only compulsory voting in Australia for federal and state elections, but not for referendums, so
those who do not have an interest in changes made to the Constitution do not have to vote. This reduces
the possibility of random votes being cast.
C. The stance of smaller states is equally considered to that of larger states due to the double majority
requirement.
D. Referendums are conducted at the same time as federal and state elections so they are inexpensive as
voting booths are already set up.
Question 5
One limitation of the constitutional alteration process in Australia is that:
A. referendums are extremely costly for politicians to conduct which can discourage a prime minister from
holding one.
B. electors have to cast their vote by ranking the proposed constitutional amendments from the change they
favour the most to the change they favour the least. This can cause confusion among electors and may
result in the vote not accurately reflecting the views of Australians.
Question 6
All pieces of legislation in Australia, including the Constitution, are altered in the same way when
modifications need to occur or sections need to be added or removed.
A. True
B. False
Preparing for exams

Standard exam-style
Outline the role of the Houses of Parliament in constitutional reform.
‘A majority of voters in Tasmania, Queensland, and South Australia as well as a majority of all voters
in Australia have voted in favour of the proposed law to alter the Commonwealth Constitution.’
Explain why the proposed law would be unsuccessful.
10B Referendums 467

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Extended response
10B QUESTIONS
In 1977, a referendum was held to determine whether the Australian Constitution should be changed to
introduce simultaneous elections, meaning elections for both the Senate and the House of Representatives
would always be held at the same time. Despite the proposal receiving bipartisan support and 62.2% of
Australian electors voting ‘yes’, the proposal still was unsuccessful as only three states, Victoria, New South
Wales, and South Australia, had a majority of their population approve the proposed changes.
Question 9
Which of the following statements are correct about the double majority requirement in the Simultaneous
Elections referendum 1977? (Select all that apply)
A. The referendum received a ‘yes’ vote from 62.22% of the Australian population.
B. Tasmania, Queensland, and Western Australia all had a majority of their population vote ‘yes’ to the
proposed constitutional reform.
C. The referendum was not successful, as only 3/6 of the states contained a majority of electors who voted
in favour of the proposed change.
D. The referendum was successful as a national vote was achieved and more than 3/6 of the states had
a majority ‘yes’ vote, which is the new rule for the state majority following the Joint Committee on
Constitutional Review 1958 findings.
Referring to one referendum, analyse the impact of the double majority requirement on the
Commonwealth Constitution.
In 1999, the question of whether the Constitution should be altered to establish the Commonwealth of
Australia as a republic was put to voters. The question received 45.13% of ‘yes’ votes nationally and was
carried by none of the states. The referendum cost the government $66,820,894.
Question 11
Tick the box to indicate whether the following statements are strengths or limitations of the process
of altering the Constitution in reference to the 1999 Republic referendum.
I. The double majority requirement ensures that voters in Australia have the power to reject changes
to the Constitution, even if these changes have been approved in both Houses of Parliament.
II. There is compulsory voting in Australia, so certain voters may have only voted because they
were forced to, therefore casting a vote at random. This may have led to the 1999 Republic
referendum not accurately reflecting the views of Australians.
III. In the 1999 republic referendum, only 45.13% of voters nationally voted ‘yes’, indicating a lack
of public support for the change and showing the importance of the power to reject changes
that the process of referendums provides to the Australian public.
IV. The ‘yes’ and ‘no’ format of all referendums make the voting process clear so that a majority
of Australians vote in a way that accurately reflects their views, making the 1999 republic
referendum a relatively true representation of the Australian public’s values.
V. The referendum would have likely been time-consuming as time would have been spent
advertising the referendum, preparing voting pamphlets, and sending out the question to
different voting booths to conduct the referendum.

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Referring to the 1999 Republic referendum, explain one strength and one weakness of the process of altering
10B QUESTIONS
the Commonwealth Constitution.

Prime Minister Rendigs proposed the Constitution Alteration (Legal Studies) Bill 2056 to the electors of
Australia to add a clause into s 51 of the Constitution which makes Legal Studies education a matter dealt
with by the Commonwealth Parliament.
Fifty-nine per cent of all electors in Australia voted in favour of the change. A majority of voters in Victoria,
New South Wales, and Western Australia also voted in favour of the proposal.
a. Was the referendum successful? Justify your answer. 3 MARKS
b. Referring to the Constitution Alteration (Legal studies) Bill 2056, explain the division of powers. 3 MARKS
10B Referendums 469

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10C Factors that affect the success

of referendums
• factors affecting the success of a referendum
10A 10B 10C 10D 10E
Image: Tolikoff Photography/Shutterstock.com
With just 30.79% of Australian citizens

4.2.9.1
approving the proposed constitutional
Factors that affect the success of referendums
reform, the 1988 referendum proposal
on rights and freedoms was the most
unsuccessful referendum in Australian 4.2.9.1.1 Bipartisan support 4.2.9.1.4 Conservatism
history (Australian Parliament House, n.d.).
The proposal faced fierce backlash from the 4.2.9.1.2 S
upport from 4.2.9.1.5 V
iews towards the politician/
state governments party proposing the referendum
opposition party at the time, spearheaded
by John Howard. So why did the proposal 4.2.9.1.3 C
omplexity of the 4.2.9.1.6 S
trength of the ‘yes’ and
fail so significantly? Are there lessons to be proposed amendment ‘no’ campaigns
learnt from this referendum to ensure future
questions do not face such harsh rejection?
Lesson introduction
Australia has a limited success rate when it comes to referendums, as only eight
out of 45 referendum proposals that have been put to Australian electors since
the establishment of the Constitution have been successful. It has now been more
than 40 years since the Australian public approved amending the Constitution.
Considering the high proportion of failed referendums, constitutional scholars
have proposed there are a number of factors that a government should ensure
are present if they want a referendum proposal to succeed.
Factors that affect the success

of referendums 4.2.9.1
There are a number of factors that may impact the success of a referendum, either
LESSON LINK
increasing or decreasing the likelihood of the double majority requirement being
You learnt about the double majority obtained. Such factors include:
requirement in 10B Referendums.
• bipartisan support
• support from state governments
• the complexity of the proposed amendment
• conservatism
• views towards the politician/ party proposing the referendum
• strength of the ‘yes’ and ‘no’ campaigns.
Bipartisan support 4.2.9.1.1

Bipartisan support refers to endorsements for a proposed law or policy by both
KEY TERM
the government of the day and the opposition, as opposed to the parties having an
Bipartisan support the agreement adversarial view on a particular matter. An example of a matter that has garnered
of the government of the day and bipartisan support in recent years is both the Labor Party and the coalition’s
opposition party on a particular issue. commitment, at the state level in New South Wales, to ban gay conversion practices.

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In relation to a referendum, bipartisan support demonstrates a broad political

LESSON LINKS
consensus that what is being proposed will have positive impacts on people
of all demographics in the Australian population. Vocal support from both the You learnt about referendums in
10C THEORY
10A Reasons for constitutional
government of the day and the major opposition party also removes the threat
reform and 10B Referendums.
of an opposition-led ‘no’ campaign. In the absence of bipartisan support, political
disunity promotes a lower likelihood of a successful referendum because voters
are likely to comply with the advice given by the political party they support as
to whether they should vote ‘yes’ or ‘no’.
In 1977, a referendum proposal was initiated asking Australians whether
a retirement age should be introduced in the Constitution for judges of the
Federal courts. According to Williams and Hume (2010), a constitutional lawyer
and solicitor who reflected on the 1977 referendum’s success, the proposal
‘developed a spirit of agreement, had bipartisan support and [was] modest in
import’. There was not a ‘no’ case published due to the broad support for the
proposal by both major parties. The referendum passed with a large majority
of Australians, 80.10%, voting ‘yes’ to the proposal, indicative of the influence
that bipartisan support has on a referendum’s success.
REAL WORLD EXAMPLE
Premature preamble! Labor slams Howard for his rushed referendum

In the 1999 Preamble referendum, it can be strongly argued that the lack of bipartisan
support the proposal had was a core reason as to why the public rejected the proposal to edit
the Constitution’s preamble. The preamble proposal only achieved 39.34% of a national ‘yes’
vote and no states achieved a majority. The Howard government advocated for the preamble
to be enshrined in the Constitution. The preamble that was proposed to be inserted into the
Constitution if the referendum was successful read:
‘With hope in God, the Commonwealth of Australia is constituted as a democracy …
We the Australian people … [are] proud that a unity has been forged by Australians … never
forgetting the sacrifices of all who defended our country … upholding freedom, tolerance,
individual dignity and the rule of law; honouring Aborigines and Torres Strait Islanders, the
nation’s first people, for their deep kinship with their lands… recognising the nation-building
contribution of generations of immigrants; mindful of our responsibility
to protect our unique natural environment; supportive of achievement as well as equality of
opportunity for all; and valuing… the national spirit which binds us together…’
The Australian Labor Party at the time opposed the preamble, believing it was a premature,
rushed job and that it was part of Howard’s political game. The lack of unity surrounding
the major parties contributed to the proposed change being unsuccessful. The Labor Party’s
criticisms of the proposed constitutional alteration made many members of the Australian Figure 1 The lack of bipartisan support for
public sceptical of the true intent behind the referendum. the 1999 Preamble referendum proposed by
John Howard was a factor that contributed
Adapted from ‘Your official Referendum pamphlet’ (Australian Electoral Commission, 1999) to its failure
REAL WORLD EXAMPLE
State uproar! When bipartisan support is not enough

In 1967, a referendum was held proposing two questions to the Australian public. The first
question was known as the ‘nexus’ referendum, asking the Australian population whether
they approved altering ‘the Constitution so that the Number of Members of the House of
Representatives may be increased without necessarily increasing the Number of Senators’.
The prime minister at the time, Harold Holt, advocated strongly for a ‘yes’ vote. He argued
the range of matters being dealt with by members of the House of Representatives had
increased, consequently increasing the burden on its members. Therefore, he asserted
it was necessary to increase the number of members. Gough Whitlam, leader of the
opposition party during the 1967 referendum, also supported the ‘yes’ vote, assuring Image: TonyNg/Shutterstock.com
Australians that ‘[his] party, in the parliament and outside the parliament, [would] Figure 2 The 1967 referendum proposing
support this bill and the referendum without reservation, equivocation, or qualification’. an increase in the number of members in
the House of Representatives failed despite
receiving bipartisan support
Continues →

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REAL WORLD EXAMPLE
State uproar! When bipartisan support is not enough – Continued

10C THEORY
Scepticism about the proposal arose among the Australian public when several senators
publicly advocated against the change, arguing increasing the number of members of the
House of Representatives would decrease the influence of the Senate.
Following the failure of the nexus referendum proposal, Harold Holt asserted that ‘the
majority of electors chose to ignore the advice of those to whom they normally look
to for guidance on political issues’.
Despite both leaders of the major parties urging voters to support the constitutional
reform, this bipartisan support was insufficient to encourage the majority of Australians
to vote ‘yes’.
Adapted from ‘The nexus clause: A peculiarly Australian obstacle’ (Gorman & Melleuish, 2018)
Table 1 Degree of influence of bipartisan support
LESSON LINK How influential is bipartisan support?
You will learn more about the 1967 Several referendums, such as the 1967 Nexus referendum about increasing the
Aboriginal referendum in 10D The number of members of the House of Representatives, garnered bipartisan support
1967 referendum. and still failed, indicating that gaining bipartisan support does not definitively mean
that a referendum will succeed.
Broadly, there is less trust in the two, primary political parties now, indicated by the
increase in independent members of parliament (MPs) in the House of Representatives
and the Senate following the 2022 federal election. Therefore, even if politicians tell the
public to vote ‘yes’, the public may not listen to this advice.
The most successful referendums, such as the 1967 Aboriginal referendum and
the 1977 Judges referendum, garnered bipartisan support, suggesting this may be
a requirement for referendums to experience broad success. Furthermore, none
of the eight successful referendum proposals did not have bipartisan support.
Support from state governments 4.2.9.1.2

Similarly to bipartisan support, the endorsement of proposed constitutional reform
from state leaders, such as premiers, is crucial to the success of a referendum. The
failure of the 1977 Simultaneous elections referendum proves that a lack of support
from states can tarnish a referendum’s success.
REAL WORLD EXAMPLE
State leaders fight to protect the Senate

In 1977, a referendum was held to change the Constitution to ensure that Senate elections
were held at the same time as elections for the House of Representatives. Despite meeting
the first requirement for a national majority, with 62.22% of the Australian population
voting ‘yes’ to the proposal, the double majority requirement was not met as only 3/6 states
had a state majority. This was a result of the strong opposition to the proposal which was
maintained in less populated states, notably Queensland, Tasmania, and Western Australia.
The premiers of Queensland and Western Australia at the time, Joh Bjulke-Petersen and
Image: EQRoy/Shutterstock.com Charles Court respectively, campaigned against their federal colleagues, suggesting the
Figure 3 State leaders fought against the proposal was ‘an attack on the states or the Senate’. Malcolm Fraser, the prime minister who
constitutional reform to hold elections for initiated the 1977 referendums, condemned the state’s opposition to the reform, suggesting
the Senate, also known as the ‘State’s House’,
it was ‘completely unjustified’ and that their arguments ‘could not be further from the truth’.
simultaneously with elections for the House
of Representatives Adapted from ‘The 1977 ‘Simultaneous elections’ referendum in Tasmania’ (Roberts-Thomson, 1977)

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Table 2 Degree of influence of support from state governments
How influential is support from state governments?
10C THEORY
People may turn to their state leaders for advice on referendum questions, rather than
the government of the day. Therefore, if the advice of state leaders is incongruent with
the advice of the current Commonwealth government, this may lead to mixed outcomes
for the referendum.
There is usually a general consensus that states’ legislative powers deserve to be

protected, therefore, if a particular state or group of states feel as if they would not
benefit from the proposal as it would deprive them of influence in the Commonwealth
Parliament or reduce the subject matter which they have the sole power to legislate
over, leaders may be quick to campaign ‘no’.
When the prime minister advocating for a referendum belongs to the same political
party as state leaders, there is a tendency for alignment between their values. As a
result, disagreements between state and federal leaders of the same party concerning
constitutional reform rarely occur.
Complexity of the proposed amendment 4.2.9.1.3

In referendums where the wording of the question being asked to the Australian LESSON LINK
public has been overly complex, the referendum has been subject to decreased
You learnt about the role of the
success. Complexity often arises when a proposal’s question contains legal jargon
Governor-General in 7A The
that is too difficult for Australians without political or legal knowledge to understand. Commonwealth Parliament
Furthermore, if a layered question is asked that incorporates multiple elements of and the Crown in law-making.
change all into the one question, the likelihood of a majority ‘yes’ vote can be hindered.
The understanding that the general public has about reforming the Australian
Constitution or about the specific referendum proposal being asked has a large
impact on the proportion of people who will vote ‘yes’.
According to respondents from the 1999 Australian Constitutional Referendum
Survey, 47.7% of respondents believed they needed more information about the
issues of the 1999 referendum, whether that be a little or a lot more information.
When asked about the role of the Governor-General in relation to the prime
minister in Australia’s current system, only 49.4% of respondents were able to
correctly identify the Governor-General’s role, meaning a majority of respondents
were unaware of the function of the Governor-General in Australia’s legal system.
This highlights the confusion voters may experience when a referendum proposal
asks about changing matters of the Constitution that are not well understood by the
general population. As a result of this confusion, complex proposals are more likely
to fail as people generally do not want to vote to approve a change that they do not
fully comprehend.
When you voted in the referendum, would you say that you
knew enough about the issues, or would you have liked to have
more information about them?
Knew enough
Option on survey
Needed a little
more information
Needed a lot
more information
0 25 50 75 100
Percentage (%)
Adapted from ‘1999 Australian Constitutional Referendum Survey’ (Australian Election Study, 1999)
Figure 4 The degree of knowledge of voters prior to the 1999 Referendum

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REAL WORLD EXAMPLE
Royals retain rule over Australia

10C THEORY
In 1999, a referendum question was proposed to Australian electors asking whether

Australia should become a republic. The exact wording of the question asked Australians
whether they approved of:
‘A proposed law: To alter the Constitution to establish the Commonwealth of Australia as
a republic with the Queen and Governor-General being replaced by a President appointed
by a two-thirds majority of the members of the Commonwealth Parliament.’
The referendum resulted in only 45.13% of electors voting ‘yes’ to Australia becoming a
Image: Alessia Pierdomenico/Shutterstock.com republic, whilst no state had a majority ‘yes’ vote to the change. Therefore, constitutional
Figure 5 In 1999, Australia voted to remain reform to become a republic was not enacted despite polling in prior years indicating the
as a monarchy instead of becoming a republic majority of Australians wanted Australia to become a republic.
Scholars have argued that the wording of this question led to its failure as it made voters
believe that voting ‘yes’ would be approving an American-style republic in which the
president would be appointed by politicians instead of the public. The idea that a president
would be appointed by ‘the Members of the Commonwealth Parliament‘ led Australians
to believe they would no longer have a say in who the leader of the nation was.
The question lacked clarity as it effectively raised two questions within one question;
the removal of the monarchy in Australia and the method of election of the president.
The Australian Constitutional Referendum Survey, conducted by the Australian Election
Study, found 53.9% of respondents would want a president to be directly elected by the
people, whilst just 20% would want a president appointed by parliament. Therefore, the
main flaw of this referendum question was that it combined multiple questions into the
one proposal. The public was hesitant to support the second part of the question relating
to the way the president would be chosen, causing the referendum to fail.
Adapted from ‘1999 Australian Constitutional Referendum Study’ (Australian Election Study, 1999)
Table 3 Degree of influence of the complexity of the proposed arrangement
LESSON LINK How influential is the complexity of the proposed arrangement?
You will learn more about the 2023 Most referendums deal with complex issues regarding the structure of parliament
Voice to Parliament referendum in 10E which several Australians have a ‘disturbing lack of knowledge about’ according to
Possible future constitutional reform. George Williams, a constitutional lawyer, yet these proposed reforms have still been
successful at times in the past, such as in the 1906 Senate elections referendum.
In both the 2023 Voice to Parliament referendum and the 1999 Republic referendum,
the ‘no’ campaign argued ‘if you don’t know, vote no’, persuading Australian voters
to decline the proposed constitutional reform if they were confused by the proposal
or found it to be ambiguous. Considering both of these referendum proposals failed,
it is likely many Australians follow this idea and decline proposals that they do not
understand, demonstrating how important it is that proposals are clear, written in
plain English, and thoroughly explained by the politician proposing the change
or the ‘yes’ campaign supporting the change.
LEGISLATION Section 11(1) of the Referendum (Machinery Provisions) Act 1984 (Cth) requires the
electoral commissioner to send out an official pamphlet to each household within
Referendum (Machinery Provisions) 14 days of polling day for each referendum. This can help educate all voters about the
Act 1984 (Cth) issues and make the proposal more clear for electors, reducing the number of people
who struggle to understand a complex proposal.
However, these pamphlets can be flawed as they often aim to push a political agenda
and contain information that is not based on fact but rather opinion.
WANT TO KNOW MORE?

The House of Representatives Standing Committee on Social Policy and Legal Affairs
released its ‘Report of its Inquiry into Constitutional Reform and Referendums’ in
December 2021. The report contains many recommendations including those relating
to improving public awareness, engagement, and education in relation to constitutional
reform. You can find out more about this inquiry and its recommendations by searching
‘Inquiry into constitutional reform and referendums’ and clicking the ‘Parliament of
Australia’ (2021) webpage.

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Conservatism 4.2.9.1.4
Conservatism is a school of thought demonstrating an opposition to societal change
KEY TERM
10C THEORY
or progressive ideas. Traditionally, a desire to reject change and maintain the status
quo in Australia has inspired a ‘no’ vote to constitutional reform, which is why most Conservatism a political philosophy
referendums have failed. Generally, Australians fear that certain changes to the committed to traditional ideas and
Constitution could significantly alter the traditional values of Australia. values, therefore opposing change
and innovation.
During the 1999 Republic referendum, John Howard was a champion for
conservatism as he avidly opposed Australia becoming a republic. He asserted
himself as being an ‘advocate [for] a no vote because [he] didn’t believe Australia
would be better off under the model put forward’. He argued that Australia, under
the monarchy, had a ‘very safe, stable, workable system’ which would be ‘worse…,
less predictable, and less secure’ if Australia became a republic. His conservative
views were shared among many voters and ultimately influenced the republic
referendum’s failure.
REAL WORLD EXAMPLE
Conservative values upheld to reject change

Conservatism was an influential factor that caused the majority ‘no’ vote that was cast in
all of the 1988 referendum proposals, particularly on the question regarding parliamentary
terms. This question proposed changing the Constitution to change the terms of members
of both Houses of Parliament to four-year maximum terms. This would have been a shift
from the current, three-year maximum terms for House of Representatives members and
six-year terms for Senators.
The Liberal and National parties appealed to conservative values in Australia, launching a
‘no’ campaign against this proposed referendum by suggesting it was promoting centralism
Image: Tom Reeves Photo/Shutterstock.com
and attempting to reduce the rights of states. The right-wing parties of Australia went on to
Figure 6 The 1988 Parliamentary terms
suggest that the proposed amendments would emasculate the Senate in order to increase referendum received one of the lowest
the power of the central government, which was controlled by the Labor Party at the time. ‘yes’ votes in history as conservative values
The parliamentary terms referendum ended up receiving a ‘yes’ vote from only 32.92% of encouraged Australians to reject change to
Australians, one of the lowest ‘yes’ vote percentages in Australia’s referendum history. the status quo
Adapted from ‘The 1988 referendums and Australia’s record on constitutional change’ (Galligan, 1990)
Table 4 Degree of influence of conservatism
How influential is conservatism?

The 2022 federal election indicates that Australia is becoming more progressive and
is moving away from conservative values traditionally upheld by the Liberal-National
coalition. This is indicated by the coalition winning significantly fewer seats than
the Australian Labor Party in the House of Representatives after the 2022 federal
election. Therefore, in future referendums, conservative values are likely to hold
a lot less weight than they traditionally have in Australia’s past referendums.
According to a 2019 Australian Election Study (Muller, 2019), 60% of people born
before 1945 preferenced the coalition first in the 2019 federal election whilst less than
30% of millennials (born 1981 to 1996) voted in favour of the coalition. Rather, the Labor
Party received the highest percentage of first-preference votes among millennials.
This indicates older generations more predominantly hold conservative views. It is
likely that progressive ideas will be more influential in future referendums, making
conservatism a less influential factor in modern society.

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Views towards the politician/party proposing

the referendum 4.2.9.1.5
10C THEORY
If the prime minister, or the political party that the prime minister represents, is
experiencing low popular support at the time of a referendum, the referendum is
less likely to succeed. Furthermore, if during the referendum campaign, the majority
of the Australian population perceives the referendum as political power grab as
opposed to a genuine attempt by the politician to change Australia for the better, the
referendum is also unlikely to achieve success. The Australian population’s view of
the party proposing the referendum may cloud their judgement when voting on the
matter at hand.
REAL WORLD EXAMPLE
Whitlam’s woes
In 1973, the Australian public was asked to vote on two referendum proposals, one
question concerned giving the Commonwealth the power to control prices, and the other
related to giving the Commonwealth the power to legislate on incomes. The referendum
was conducted under Gough Whitlam, Australia’s prime minister at the time who was a
member of the Australian Labor Party (ALP). Whitlam led Australia during the 1973 oil
crisis, a time of significant economic strain. Unemployment levels increased from two to
five per cent in Australia during 1974 and the post-war economic boom came to an end.
This economic decline led to many Australian citizens perceiving Whitlam poorly,
accusing him of financial mismanagement and blaming him for the nation’s economic
decline. Whitlam himself had a perceived lack of economic sophistication, making
Australians believe he was uneducated on how to help the Australian economy.
Both referendums conducted in 1973 ended up failing, with the prices referendum
receiving a ‘yes’ vote from 43.81% of Australians whilst the income referendum
Figure 7 The unpopularity of Gough received support from only 34.42% of Australians, indicating the lack of popularity
Whitlam’s economic policies was one of the of these referendums.
causal factors leading to some of the 1973
referendum proposal’s failures Adapted from ‘Platypus and Parliament: The Australian Senate in theory and practice’ (Bach, 2003)
USEFUL TIP
You may notice that several of the referendum examples mentioned in this lesson
are the same referendums referred to in 10A Reasons for constitutional reform.
Choose two to three factors that affect the success of referendums which you find
most interesting, or which cross over with the referendum examples for the reasons
for constitutional reform you have chosen to focus on, as this will limit the amount
of examples you need to understand and memorise for your end-of-year exam.
Note that you will not be expected to know all of these factors and all of their respective
referendum examples, so just focus on understanding a few of the factors.
Strength of the ‘yes’ and ‘no’ campaigns 4.2.9.1.6

During most of Australia’s past referendums, politicians or interest groups from
civil society have launched ‘yes’ or ‘no’ campaigns that seek to persuade Australian
voters to either vote in favour of, or reject, a proposed constitutional reform. A ‘no’
campaign may be particular successful where it:
• creates compelling arguments
• is supported by reputable people who the public believes to be particularly
informed on the proposed constitutional reforms, such as former High
Court Justices
• plays on the fears of the Australian people for what consequences changing the
Constitution may bring.
In referendums where a ‘no’ campaign has not been published against the proposed
constitutional reform, such as in the 1967 referendum about First Nations peoples,
constitutional change has occurred as the Australian public is not told reasons
against supporting the change.

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REAL WORLD EXAMPLE
CONTENT WARNING Aboriginal and Torres Strait Islander readers should be aware
10C THEORY
that some material in this section may be culturally sensitive.
The 2023 Voice to Parliament referendum: Lessons from its failure
In 2023, the Voice to Parliament referendum asked Australian voters whether they
approved of changing the Constitution to introduce an Aboriginal and Torres Strait
Islander Voice to Parliament. The Voice was proposed as being an advisory body that
would provide the Commonwealth Parliament and the executive government with
opinions from First Nations elected members about proposed laws and policies, so that
Aboriginal and Torres Strait Islander peoples could help shape these laws to ‘close the
gap’ in Australia. The referendum was unsuccessful, achieving neither a national majority
nor a majority from voters in any state.
Scholars have reflected upon the reasons for the referendum’s failure, theorising the
factors that produced its failure, including:
• a lack of bipartisan support
• misunderstandings of voters about what the proposed change was
• a strong ‘no’ campaign.
The opposition leader, Peter Dutton, did not support the proposed change, rather
campaigning for Australians to reject the change. This lack of bipartisan support
immediately concerned those wanting the referendum to succeed, considering all Image: Tom Reeves Photo/Shutterstock.com
successful referendum proposals in Australian history have received bipartisan support. Figure 8 Before the 2023 Voice to Parliament
Therefore, the political divisions caused by the lack of bipartisan support the Voice referendum, there were a number of factors
pointing away from the proposal being
received likely was a contributing factor to the referendum’s failure. successful, such as a convincing ‘no’ campaign
Furthermore, many Australian voters did not understand the concept of the Voice, what
powers it would have, and how it would have functioned, or at least felt this was explained
ambiguously by the government, creating voter confusion. According to Marcus Stewart,
a Victorian ‘yes’ campaigner, ‘the general Australian community couldn’t comprehend
exactly what [the Voice] was’.
Additionally, the ‘no’ campaign against the Voice to Parliament has been regarded as
particularly strong. According to La Trobe University political communication professor,
Andrea Carson, ‘the ‘no’ campaign ‘seem[ed] to be much more effective on social media
than the ‘yes’ campaign’, proposing more persuasive and clear arguments as to why
Australian voters should reject the change than the arguments initiated by the ‘yes’
campaign.
Adapted from ‘Why the Voice failed’ (Wellauer et al., 2023) and ‘Could the No Voice campaign be winning over
Australia’s ‘most-progressive’ state?’ (Ashton, 2023)
Lesson summary
There are no two referendums that are the same. There is also no set of prerequisite
factors that can be fulfilled to ensure a referendum’s success. However, achieving
certain factors has the capacity to increase the likelihood of a successful outcome
to a referendum proposal.
Table 5 Factors that affect the success of referendums
Factor that affects the success of a referendum Example of referendum proposals

Bipartisan support 1967 Aboriginal referendum
1977 Retirement of judges referendum
Support from state governments 1977 Senate elections referendum
Complexity of the proposed amendment 1999 Republic referendum

Conservatism 1988 Parliamentary terms referendum

1999 Republic referendum
Views towards the politician/party proposing the referendum 1973 Prices referendum
Strength of the ‘yes’ and ‘no’ campaigns 1967 First Nations referendum

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10C Questions
10C QUESTIONS

Question 1
More than half of Australian referendum proposals have been successful due to a variety of factors influencing
Australians to vote ‘yes’.
A. True B. False
Question 2
If a proposed referendum has the support of both the major parties, the referendum will be successful as
Australians who vote in favour of the Liberal Party or the Labor Party will all support the proposed change.
A. True B. False
Question 3
Bipartisan support refers to:
A. both the government and the opposition agreeing on a particular issue, as opposed to having an adversarial
view on a particular matter.
B. when a referendum receives a majority of national support, as well as more than 4/6 states having the
majority of their population vote in favour of a constitutional change.
Question 4
complex simplistic
If the wording of the referendum question is too , or there are multiple questions within the one question,
the referendum is less likely to be successful. This was shown in the 1999 referendum relating to Australia becoming a republic.
Question 5
Conservatism may decrease the likelihood of a referendum’s success due to:
A. people with a more traditional, conservative school of thought opposing any changes to the Australian
Constitution as they fear alterations to the status quo.
B. all people with a more traditional school of thought only ever supporting initiatives from the Liberal party,
so if the referendum is conducted under a Labor Party government in power, they will automatically vote ‘no’.
Question 6
The 1973 Prices and income referendums, conducted by Gough Whitlam indicated:
A. that the popularity of the prime minister who proposes the referendum can influence the result of the
referendum as the Australian public may have preconceived ideas about the constitutional change based
on the person proposing it.
B. economic referendums always fail in Australia as Australians prioritise the protection of their money.
Question 7
Which of the following factors may have contributed to the failure of the 2023 Voice to Parliament
referendum? (Select all that apply)
A. Lack of bipartisan support.
B. Lack of support from all state premiers to vote ‘yes’.
C. Lack of knowledge by Australian voters regarding what the Voice was, how it would function, and what
powers it would have.
D. Lack of voter turnout as Australians were not compelled to vote on this matter.

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Question 8
Only one factor affecting the success of a referendum will apply to each referendum as the factors do not
10C QUESTIONS
intersect and cannot apply simultaneously.
A. True B. False
Preparing for exams

Standard exam-style
Referring to one referendum in Australia, describe one factor that may influence the success of a referendum.
Referring to one successful Australian referendum, explain one factor that could have affected the success
of this referendum.
Outline two factors that may cause a referendum to not succeed.
In 1999, a referendum asking Australians to vote ‘yes’ or ‘no’ to become a republic was proposed. The referendum
question asked whether voters approved of a proposed law:
‘To alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and Governor-General
being replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament.’
The referendum was unsuccessful, with 45.13% of the Australian population voting ‘yes’.
Explain two factors that may have affected the failure of this referendum.
Extended response
Question 13
Which of the following statements are correct about the influence of bipartisan support on the success
of a referendum? (Select all that apply)
A. In the 1967 Aboriginal referendum, there was broad bipartisan support for the change to occur,
leading to over 90% of the Australian population voting ‘yes’.
B. If a constitutional reform proposal has bipartisan support, it will always be successful according
to historical data.
C. In the 1967 nexus referendum, both the leaders of the Labor party and the coalition advocated for the
Australian public to vote ‘yes’ but the referendum still failed.
D. There has been a broad movement away from supporting the two, major political parties in Australia
with more Australians aligning with the values of independents and minor parties.
Evaluate the extent of the influence of one factor that affects the success of referendums.

In 1967, a referendum was held to change the Constitution in order to allow Aboriginal peoples to be counted in
Australia’s census and be considered part of the Australian population. In addition, the referendum also sought to
reform the Constitution to allow the Commonwealth Parliament to make laws on issues concerning Aboriginal and
Torres Strait Islander peoples. The referendum received a ‘yes’ vote from 90.77% of the Australian population.
a. Explain one factor that influenced the success of the 1967 referendum. 3 MARKS
b. Analyse two reasons behind the 1967 constitutional reform regarding First Nations peoples. 6 MARKS

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• the significance of the 1967 referendum about First Nations people
10A 10B 10C 10D 10E
Image: Pic Media Aus/Shutterstock.com
‘The one word ‘Yes’ on May 27 will open the 4.2.10.1

door for real reform. It will tell the world at The significance
large that there is only one Australian, and his of the 1967 referendum
colour doesn’t matter at all.’—Faith Bandler
(Civil rights activist and campaigner, 1967)
At the turn of the 20th century, when the
Australian Constitution was first written,
Caucasian, colonially-influenced Australian
views towards Aboriginal and Torres Strait
Islander peoples were highly discriminatory.
Hence, by the 1960s, constitutional change
was required to adequately reflect the general
shift in the values of the Australian people.
CONTENT WARNING Aboriginal and Torres Lesson introduction

Strait Islander readers should be aware
that some material in this lesson may be On 27 May 1967, Australia experienced its most successful referendum in history,
culturally sensitive. Examples of this include with 90.77% of Australian voters voting ‘yes’ to two changes to the Constitution
references to people who have passed, which related to the rights of both Aboriginal people and Torres Strait Islander
sensitive language, or distressing events. people (National Archives of Australia, n.d.). As a result, the Commonwealth was
granted the power to legislate on matters concerning Australians identifying as
either Aboriginal or Torres Strait Islander. In addition, Aboriginal peoples were now
counted as part of the Australian population. As a result of the two constitutional
changes, several laws were passed that sought to protect First Nations culture and
rectify discriminatory practices that states had previously implemented against
the First Nations people of this country. Despite this successful referendum,
disproportionate incarceration rates of First Nations peoples and the disrespect some
corporations demonstrate towards culturally significant sites and landmarks indicate
the issues brought about by colonisation have not been resolved.
The significance of the

1967 referendum 4.2.10.1
The 1967 referendum and the laws that have since been introduced were a product
of decades of Aboriginal and Torres Strait Islander peoples protesting against
their unequal treatment and the injustices faced since colonisation. In the 1950s
and 1960s, as the civil rights movement in the United States grew in influence,
people increasingly took notice of, and sought to change, the racial discrimination
occurring across Australia.

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Table 1 Timeline of key events leading up to the 1967 referendum
Date Event Significance LEGAL VOCABULARY
10D THEORY
1901 Federation Upon federation of the states, the Constitution Federation the process of uniting
of Australia came into force, acting as a guiding, states into a cohesive group under
governing document for the newly established centralised authority.
country. This document contained two provisions
in particular that referred to the First Peoples
of Australia:
• s 51(xxvi), which gave the Commonwealth CONSTITUTION
Parliament the power to make laws for people
of any race, except for Aboriginal peoples. Section 51 (xxvi)
• s 127, which set out that Aboriginal peoples Section 127
should not be counted in the Census as part
of the Australian, or states’, population.
1905 The first Act • In 1905, the Aborigines Act 1905 (WA) was
‘protecting’ passed, making the state’s chief prosecutor the
Aboriginal children legal guardian of every Aboriginal child under
was passed in 16 years old.
Western Australia • In the following years, other states and
territories created similar Acts in order to
assume full custody of any Aboriginal child
if the child was found to be neglected.
• In 1915, the Aborigines Protection Amending
Act 1915 (NSW) gave the Aboriginal Protection
Board the power to separate Aboriginal children
from their families, even if the court had not
found the child was being neglected.
• These laws remained in force until 1969, when
all states repealed the legislation allowing for
child removals. However, it was not until a few
more years after these legislative changes that
the practices in Australia actually reflected
these legal changes. First Nations peoples who
were victims of these policies are known as the
‘Stolen Generations’.
• These laws were valid as states had the residual
power to legislate on matters concerning First
Nations peoples whilst the Commonwealth did
not have the power to do so.
1951 Australian • At the 1951 Native Welfare Conference, LEGAL VOCABULARY

Government it was agreed upon that assimilation was the
Assimilation the process of individuals
implements a policy aim of ‘native welfare measures’, meaning
who belong to one ethnic group being
of assimilation Aboriginal peoples should ‘live like other
acclimatised and made more similar
white Australians do’. to the dominant culture of the society
• The assimilation policies put in place, as a they are within as aspects of their
result, included further child removals and original ethnic culture decline.
placing Indigenous children in non-Indigenous
foster families where they adopted white
values and practices.
1957 Petition circulated • A petition, led by the Aboriginal-Australian

to change the Fellowship (AAF), was circulated, calling
Australian for amendments to s 127 and s 51(xxvi)
Constitution of the Constitution.
• The petition received just over 100,000
signatures and resulted in the Federal Council
for the Advancement of Aborigines and Torres
Strait Islanders (FCAATSI) being introduced
the following year.
Continues →

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Table 1 Continued
Date Event Significance

10D THEORY
1957 Petition circulated • Leslie Haylen, a member of the House

to change the of Representatives at the time, presented
Australian this petition to the House of Representatives
Constitution in May 1957.
1958 Federal Council for • The FCAATSI campaigned for changes to the
the Advancement lives of First Nations Australians, and included
of Aborigines several influential Aboriginal and Torres Strait
and Torres Islander activists, such as Faith Blander and
Strait Islanders Sir Douglas Nicholls.
(FCAATSI) formed • Throughout the 1960s, the group campaigned
for equal wages and working conditions.
• By 1967, the group turned their efforts to the
1967 referendum, campaigning for the ‘yes’ vote.
1965 Freedom Ride • In February 1965, a student movement, led

by Charles Perkins, undertook a 15-day
‘freedom ride’ which involved the bus
stopping in several New South Wales towns.
• They drew attention to the segregation and
living conditions of many Aboriginal peoples
by surveying Aboriginal peoples in the towns
they visited.
1966 Wave Hill walk-off • In 1965, the North Australian Workers Union
sought to obtain employment rates for First
Nations labourers employed as wards of the
state equal to the rate awarded to all other
workers fulfilling the same role.
• Limited progress was made to increase
First Nation peoples’ wages during 1966.
• On 23 August 1966, 200 Gurindji employees
and their families, led by Vincent Lingiari, went
USEFUL TIP
on strike at Wave Hill station in the Northern
The ‘key skill’ relevant to this lesson Territory. Whilst the strike was, in part, about
is to ‘discuss the ability of the increasing wages, the employees were also
Australian people to change the campaigning for greater land rights to the land
Australian Constitution, including in which they had been dispossessed of despite
relation to the 1967 referendum about their tens of thousands of years possessing it
First Nations people and possible and their strong cultural connection to the land.
future constitutional reform’. This key
skill combines multiple Study Design • In April 1967, the Gurindji sent a petition
Dot Points, and may therefore require to the Governor-General, asking for their
you to combine information from this tribal land to be returned to them so they
lesson with information from other could establish their own cattle station.
lessons within your answers. You may • This action again demonstrated the growing
be required to draw upon some of the resentment of Aboriginal and Torres Strait
means by which individuals and groups Islander peoples towards the discriminatory
influence law reform when discussing laws the states were legislating which
the 1967 referendum. These means prevented them from receiving adequate
of influencing law reform could include: wages and land rights.
• petitions, for example, the 1957
1967 Harold Holt, the • After the FCAATSI delegation travelled
petition that sought to change
Prime Minister of to Canberra to seek the support of both
the Constitution and received
the day, announced major political parties in a referendum, the
100,000 signatures.
a referendum on 23 Constitution Alteration (Aboriginals) Act 1967
• demonstrations, such as the February 1967 (Cth) was passed in the Federal Parliament.
‘Freedom Rides’ or the All members of the Commonwealth
‘Wave Hill walk-off’. Parliament voted in favour of it.

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DEEP DIVE
Freedom rides
10D THEORY
In 1961, a series of political protests occurred across the United States of America as part
of the civil rights movement, in which African Americans and Caucasian people rode buses
together to fight against the segregated conditions of the US. Inspired by such activism,
in 1965, a group of students from the University of Sydney who were in a group called
‘Student Action For Aborigines (SAFA)’ embarked on a similar journey. They were led
by Charles Perkin who was the president of the SAFA and was one of only two Aboriginal
students at the university in 1965.
The following are quotes by leaders of the Freedom Rides, reflecting on the information
they acquired from surveying Aboriginal peoples within New South Wales towns: Figure 1 The 1965 Freedom Rides in Australia
exposed the discriminatory treatment
‘We noticed a sign above the doorway … ‘Aborigines not allowed in the lounge without the of Aboriginal peoples in New South Wales,
Licensee’s permission”—Ann Curthoys leading the Australian population to
understand the need for legal reforms
As the group of students stood outside a Returned & Services League (RSL) restaurant
that had banned Aboriginal peoples, the people who passed by ‘either laughed at [them]
or spat at [them] or on the banners’—Charles Perkins
‘We learnt there was a partition in the picture theatre separating the aborigines from the
whites. The aborigines had to buy their tickets separately and could only enter the theatre
after the picture had started.’—Ann Curthoys
The Freedom Rides gained publicity, with the New York Times writing about the racial
segregation and discrimination occurring in Australia. It exposed the conditions Aboriginal
peoples were experiencing due to discriminatory policies designed by the states. In doing
so, the Australian public became more aware of the necessity for change regarding the
treatment of Aboriginal and Torres Strait Islander peoples.
Adapted from ‘1965 Freedom Ride’ (Australian Institute of Aboriginal and Torres Strait Islander Studies, 2022)
The two aspects of the Constitution that the referendum sought to amend were:
• Section 51(xxvi), known as the ‘race power’ which provided the Commonwealth
the right to make laws about any race except for Aboriginal peoples. Therefore,
the ability to make laws affecting Aboriginal peoples was solely in the hands
of each of the states, making it a residual power. This allowed laws, such as
legislation allowing the state to remove Aboriginal children without providing
evidence any neglect had occurred, to be passed.
• Section 127, which prevented Aboriginal and Torres Strait Islander peoples
from being counted in a national Census. Therefore, trends about their health,
incarceration, geographic location, and more, could not be produced and
evaluated, as no data to create these trends was available.
WANT TO KNOW MORE?

There is a widespread misconception that the 1967 referendum granted First Nations
peoples the right to vote in Australian elections. However, it was in 1962 when the
Commonwealth Parliament passed a law granting Aboriginal and Torres Strait Islander
peoples the option to vote in federal elections, which was unlike the mandatory voting
that was required for all other Australians. It was not until 1984 that equal voting rights
were granted to Aboriginal and Torres Strait Islander peoples, making it mandatory
to vote in federal elections.
You can find out more about Aboriginal peoples’ right to vote in Australia by
searching ‘Indigenous Australians’ right to vote’ and clicking the ‘National Museum
of Australia’ (2023) webpage.

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LESSON LINK 51 (xxvi). The Parliament shall, subject to this 127. In reckoning the numbers of the people
Constitution, have power to make of the Commonwealth, or of a State
You learnt about the 1967 Nexus laws for the peace, order, and good or other part of the Commonwealth,
10D THEORY
referendum and bipartisan support government of the Commonwealth aboriginal natives shall not be counted.
in 10C Factors that affect the success with respect to the people of any
of referendums. race, other than the aboriginal race
in any State, for whom it is deemed
necessary to make special laws.
Figure 2 Aspects of the Australian Constitution the 1967 referendum sought to amend
If successful, the referendum would change the Constitution by:

• removing the part of s 51(xxvi) that suggested the Commonwealth could
make laws with respect to race for people ‘other than the aboriginal race
in any State’.
• removing the entirety of s 127 so it was completely eliminated from
the Constitution.
51 (xxvi). The Parliament shall, subject to this 127. In reckoning the numbers of the people
Constitution, have power to make of the Commonwealth, or of a State
laws for the peace, order, and good or other part of the Commonwealth,
government of the Commonwealth aboriginal natives shall not be counted.
with respect to the people of any
race, other than the aboriginal race
in any State, for whom it is deemed
necessary to make special laws.
Figure 3 How the 1967 referendum sought to amend the Constitution
In the lead-up to the vote, the FCAATSI led the ‘yes’ campaign. There was no
LEGAL VOCABULARY
official ‘no’ campaign, which is unique for Australian referendums. There was also
Bipartisan support the agreement bipartisan support for the proposal, meaning both the Prime Minister, Harold Holt,
of the government of the day and the and the opposition leader, Gough Whitlam, supported a ‘yes’ vote to the proposal.
opposition party on a particular issue.
10 days prior to the referendum, Prime Minister Harold Holt described s 127 as being
‘completely out of harmony with our national attitudes and modern thinking. It has
no place in our Constitution in this age’ (Department of the Prime Minister and
Cabinet, 1967).
On the day of the referendum, Australian electors had to vote on two questions
that were entirely separate from each other. Multiple proposals to change the
Constitution are often asked on the same day to save the government time and
money. The first question, referred to the 1967 Nexus referendum, asked voters
whether they agreed to the Constitution being altered to increase the number
of members of the House of Representatives without necessarily increasing the
USEFUL TIP number of Senators. This question did not receive a majority ‘yes’ vote and therefore
the change was not introduced. The other question, known as the 1967 Aboriginals
In 1967, Australian voters were asked
referendum, or the 1967 referendum about First Nations peoples, asked whether the
to vote on two, separate proposals
to change the Constitution. The 1967 Australian electors approved of:
Nexus referendum, which you learnt ‘A proposed law to alter the Constitution so as to omit certain words relating
about in Lesson 10C, is not relevant to the People of the Aboriginal Race in any State and so that Aboriginals are
to this Study Design Dot Point; the
to be counted in the reckoning of the Population.’
significance of the 1967 referendum
about First Nations people. It is On 27 May 1967, 90.77% of voters in Australia voted ‘yes’ to the proposed changes
important you do not talk about the related to the 1967 First Nations referendum, the largest majority in Australian
1967 Nexus referendum in questions referendum history, which has remained unbeaten by any other referendum that
asking about the 1967 referendum
has occurred since. This referendum took place prior to the 1977 referendum
about First Nations peoples in the
where electors in territories were allowed to vote in constitutional referendums.
exam, as these two proposals were
entirely separate. Therefore, the only Australian jurisdictions considered in the results were the
six states, but not the two territories.

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80.9 89.2
10D THEORY
19.1
10.8
Queensland
% of YES votes Western
Australia 91.5
% of NO votes South
Australia
New South 8.5
Wales
94.7
86.3 90.2 Victoria
13.7 5.3
9.8 Tasmania
Figure 4 The 1967 First Nations referendum results across Australia (National Archives of Australia, n.d.)
Table 2 Significance of the 1967 referendum
Reason Explanation
Commonwealth • The ability to legislate in relation to Aboriginal and
Parliament was Torres Strait Islander peoples is a concurrent power,
able to override whereas prior to the referendum it was a residual power.
discriminatory This means that now both the state and Commonwealth
legislation made parliaments can legislate on matters relating to First
by the states Nations people. However, under s 109 of the Constitution, CONSTITUTION
the Commonwealth Parliament is able to override state
laws where the laws of the Commonwealth conflict with Section 109
one of the states.
• For example, in the High Court case of Mabo v Queensland
(No 1) (1988) 166 CLR 186, the High Court held the
Queensland Coast Islands Declaratory Act 1985 (Qld)
was invalid because it was inconsistent with the Racial LEGISLATION
Discrimination Act 1975 (Cth). The Queensland Act sought
to abolish any of the rights and interests the Meriam people Racial Discrimination Act 1975 (Cth)
may have had with the Murray Islands under native title Aboriginal and Torres Strait Islander
and thus, discriminated against a group on the basis of race. Heritage Protection Act 1984 (Cth)
Commonwealth • The Aboriginal and Torres Strait Islander Heritage

Parliament was Protection Act 1984 (Cth) enables the Australian
able to legislate government to protect cultural heritage sites if under
Acts that uplifted threat and if there is failed action by the state or territory LESSON LINKS
and protected First governments to protect these sites. You learnt about concurrent and
Nations rights • The Racial Discrimination Act 1975 (Cth) prohibits actions residual powers in 7C The division
of discrimination on the basis of ethnicity or race. of powers.
You learnt about s 109 of the
Policies were able • Five months after the successful referendum, Harold Holt
Constitution in 7D Section 109 of the
to be created that set up an Office for Aboriginal Affairs that intended to Australian Constitution.
more accurately receive advice on issues impacting Aboriginal and Torres
reflected the issues Strait Islander peoples. However, this office was condemned
of First Nations by Aboriginal and Torres Strait Islander peoples due to its
peoples ‘political and bureaucratic apathy and a paucity of empathy,
understanding of, and commitment to improving Indigenous
lives’ (Taylor, 2017).
• The Department of Aboriginal Affairs was established in
1972. It no longer exists, replaced by the National Indigenous
Australian Agency, which focuses on Indigenous affairs
by working with the Minister for Indigenous Australians.
Continues →

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Table 2 Continued
Reason Explanation
10D THEORY
Policies were able • In 2019, Kenneth George Wyatt AM became the first
to be created that Aboriginal Minister for Indigenous Australians.
more accurately • Allowing First Nations peoples to be counted in the
reflected the issues Census was also critical in enabling more beneficial public
of First Nations policies to be created, as information from the Census
peoples could be drawn upon to better understand the key areas
where reform was required for Aboriginal and Torres
Strait Islander peoples.
• For example, Census data has revealed Aboriginal and
LEGAL VOCABULARY Torres Strait Islander peoples experience disproportionately
Koori Court an alternative sentencing high incarceration rates. Therefore, policies aimed at
court for First Nations offenders reducing this rate have been introduced, such as the
who have pleaded guilty to their Koori Courts in Victoria.
criminal offence, developed to take
into account the different cultural Symbolic shifts • The unprecedented success of the referendum as well as
values of Aboriginal and Torres Strait in the values of the fact that a ‘no campaign’ did not exist during the lead-up
Islander peoples. Australian society to the referendum indicated the widespread support among
Australians for greater equality in society, especially in
relation to First Nations peoples and white Australians.
• Russell Taylor (2017) describes the impact as having a
‘tangible, transformative nature, and [being] both symbolic
and substantial in its historical influence’.
• Taylor reported the referendum provided comfort
to a majority of First Nations Australians, giving them
confidence in the rest of the Australian population’s
morality.
Greater • Since 1967, a number of steps have been taken towards

developments in reconciliation which likely would not have happened had
Indigenous affairs the referendum not occurred.
• In 1992, the Mabo v Queensland (No 2) (1992) 175 CLR 1
WANT TO KNOW MORE? decision resulted in the High Court recognising the
fact that Indigenous peoples had lived in Australia for
‘We took the traditional lands and
thousands of years, abolishing the idea that Australia was
smashed the traditional way of life.
‘terra nullius’ (land belonging to no one) when colonisers
We brought the diseases. The alcohol.
first arrived to Australia.
We committed the murders. We took
the children from their mothers.’ • In 1992, Paul Keating made his ‘Redfern speech’ in which
Paul Keeting’s 1992 Redfern Speech he acknowledged the genocide of Aboriginal and Torres
admitted to the atrocities committed Strait Islander peoples, the Stolen Generations, and
by British settlers during colonisation the ongoing oppression of Aboriginal and Torres Strait
against Aboriginal and Torres Strait Islander peoples. He reported ‘It begins, I think, with that
Islander peoples. You can watch the act of recognition. Recognition that it was we who did the
speech in full by searching ‘The Redfern dispossessing’ (Keating, 1993).
Speech: 30 Years On’ and clicking the • In 2008, Kevin Rudd, the Prime Minister of Australia at the
ANTAR (2022) webpage. time, issued a national apology to the Stolen Generations.
Although the referendum was significant, immediate changes were not experienced
for a number of Aboriginal and Torres Strait Islander peoples. Russell Taylor,
a Kamilaroi man raised in NSW, on the 50th anniversary of the 1967 referendum,
reported ‘in the short term, the 1967 referendum had very little impact whatsoever’
(Taylor, 2017). Faith Bandler, a leading campaigner for the referendum, similarly
reported that ‘changes following the referendum were disappointingly slow’.
However, Russell went on to report the ‘longer-term impact [of the referendum] to
be both positive and extremely profound.’

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The referendum was also not an absolute fix for the issues facing First Nations
LESSON LINK
peoples in Australia. For example, the reformed Constitution now makes no formal
reference to Aboriginal and Torres Strait Islander peoples, which the Voice to You learnt about the United Nations
10D THEORY
Declaration on the Rights of Indigenous
Parliament referendum in 2023 called to reform. Russell Taylor (2017), for example,
Peoples in 7G Parliament’s ability
suggested ‘if we concur that the Constitution is truly the foundation document
to make law – international pressures.
of Australia, that it provides the structural basis for our system of government
… then I believe as Australians we must support the need for amendment’.
Furthermore, in 2007, Australia voted against the United Nations Declaration on
the Rights of Indigenous Peoples alongside four other countries; Canada, New
Zealand, and the United States. However, Australia did then formally endorse the
Declaration in 2009.
USEFUL TIP
When discussing the reasons for constitutional reform from Lesson 10A, or the factors
that affect the success of referendums from Lesson 10C, you may want to use examples
of past referendums to explain your reasons and factors. Since you now understand what
the 1967 Aboriginal referendum was about, and the results of the referendum, you may
want to consider how some of the reasons for constitutional reform, or factors affecting
the success of referendums, are relevant when analysing the 1967 referendum. That way,
you do not have to remember the facts of as many referendums before your exam.
Factors that affect the success of referendums relevant to the 1967 referendum about
First Nations peoples include:
• bipartisan support, as there was not a ‘no’ campaign by the opposition in this
referendum and both the prime minister and the opposition leader at the time
of the referendum endorsed voting ‘yes’ to the Aboriginal proposal.
• the knowledge of voters, as the campaigns of the ‘yes’ campaign in 1967 informed
voters about the need for constitutional reform.
Reasons for constitutional reform relevant to the 1967 referendum about First Nations
peoples include:
• shifting societal attitudes, as Australia’s values had broadly moved away from
a prejudiced past.
• rights’ protection, as by allowing the Commonwealth to legislate on matters
concerning Aboriginal peoples, their rights could be better protected by the
Commonwealth.
• to remove power from the states, as by allowing the Commonwealth parliament
to pass legislation under the ‘race power’ for Aboriginal peoples, Commonwealth
legislation could now override laws of states regarding First Nations peoples,
therefore limiting states’ abilities to pass discriminatory legislation.
• reconciliation with First Nations people, as the referendum sought to eliminate
the elements of the Constitution that were most discriminatory against First
Nations peoples.
Lesson summary
The 1967 referendum saw an overwhelming majority of Australian citizens
demonstrate their support for Aboriginal and Torres Strait Islander peoples.
Although inequalities still remain in Australian society and issues regarding
First Nations peoples’ rights have persisted despite the 1967 referendum, the
constitutional reform was still significant for many reasons, such as:
• allowing the Commonwealth Parliament to override discriminatory legislation
made by the states.
• allowing the Commonwealth Parliament to legislate Acts that uplifted and
protected First Nations rights.
• allowing policies to be created that more accurately reflected the issues
of First Nations peoples.
• creating symbolic shifts in the values of Australian society.
• promoting greater developments in Indigenous affairs.

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10D Questions
10D QUESTIONS

Question 1
Fill in the blank with one of the following numbers:
90.77% 71.74%
On 27 May 1967, of Australian voters voted ‘yes’ to the First Nations referendum proposal.
Question 2
The 1967 First Nations referendum resulted in one change to the Constitution: s 127 was removed so that
Aboriginal peoples could now be counted in the national Census.
A. True
B. False
Question 3
The 1967 referendum:
A. gave Aboriginal and Torres Strait Islander peoples the right to vote.
B. made legislating on issues concerning Aboriginal and Torres Strait Islander peoples an exclusive power
of the Commonwealth under s 51(xxvi).
C. removed s 127 of the Constitution so that Aboriginal peoples were not excluded when the Australian
population was counted.
D. allowed the Commonwealth Parliament to make laws on matters concerning First Nations peoples.
Question 4
Bob Hawke introduced the 1967 referendum after speaking with delegates from the Federal Council for the
Advancement of Aborigines and Torres Strait Islanders (FCAATSI), a group that campaigned for reforms
surrounding First Nations’ rights.
A. True
B. False
Question 5
The ‘yes’ campaign was led by the Federal Council for the Advancement of Aborigines and Torres Strait
Islanders (FCAATSI) whilst the ‘vote no’ campaign was led by:
A. no one, as there was no official ‘no’ campaign for the 1967 First Nations referendum.
B. the opposition leader at the time, who believed the change would result in ‘radical’ changes to
Australian society.
Question 6
Which of the following statements are reasons why the 1967 referendum about First Nations people was
significant? (Select all that apply)
A. It allowed the Commonwealth Parliament to override discriminatory legislation made by the states.
B. It allowed only the Commonwealth Parliament to legislate Acts that uplifted and protected First Nations
rights, and state parliaments were barred from passing legislation about such matters.
C. It created symbolic shifts in the values of Australian society.
D. It led to greater developments in Indigenous affairs.

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Question 7
Fill in the blank with one of the following sections of the Constitution:
10D QUESTIONS
s 109 s 51(xxvi)
Under of the Constitution, the Commonwealth Parliament’s legislation overrules state laws where
the laws of the Commonwealth conflict with one of the states. Therefore, the 1967 referendum allowed the Commonwealth
Parliament to override state legislation which was discriminatory and conflicted with Commonwealth legislation.
Question 8
The 1967 referendum was merely symbolic, and no actual legislative changes occurred after the
referendum succeeded.
A. True
B. False
Preparing for exams

Standard exam-style
Describe two reasons why the 1967 referendum was significant.
In the High Court case of Mabo v Queensland (No 1) (1988) 166 CLR 186, the High Court held the Queensland
Coast Islands Declaratory Act 1985 (Qld) was invalid because it was inconsistent with the Racial Discrimination
Act 1975 (Cth). The Queensland Act sought to abolish the Meriam people’s property rights over the Murray
Islands. Therefore, the High Court declared the Act was invalid as it conflicted with the Racial Discrimination
Act 1975 (Cth) by discriminating against the Meriam people on the basis of their race.
Explain the significance of the 1967 referendum in relation to the High Court decision in Mabo v Queensland (No 1) (1988).
Extended response
Question 11
Tick the box to indicate whether each of the following statements are positives or negatives of the 1967
referendum’s significance.
Statement Positives Negatives

I. The referendum allowed the Commonwealth Parliament to legislate Acts that uplifted and
protected First Nations rights, such as the Aboriginal and Torres Strait Islander Heritage Protection
Act 1984 (Cth) which enabled the Australian government to protect cultural heritage sites.
II. Section 127 of the Constitution was removed by the referendum, therefore allowing First Nations
peoples to be counted in the Census. This enabled more beneficial public policies to be created,
as information from the Census could be drawn upon to better understand the key areas where
reform was required for Aboriginal and Torres Strait Islander peoples.
III. The referendum was not an absolute fix to the issues facing First Nations peoples in Australia.
For example, the reformed Constitution now makes no formal reference to Aboriginal and Torres
Strait Islander peoples which many regard as invalidating the existence of Aboriginal and Torres
Strait Islander peoples and a refusal of Australians to recognise Australia’s colonialist past.
IV. The unprecedented success of the referendum as well as the fact that a ‘no’ campaign did
not exist during the lead-up to the referendum, indicated the widespread support among
Australians for greater equality in society.
V. In the short term, the 1967 referendum had little impact on First Nations peoples according
to Russell Taylor in a 2017 report reflecting on the referendum.

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Analyse the significance of the 1967 referendum.
10D QUESTIONS

Describe two reasons for the 1967 constitutional reform relating to First Nations peoples.
On 27 May 1967, Australia experienced its most successful referendum in history, with 90.77% of Australian
voters voting ‘yes’ to two changes to the Constitution which related to Aboriginal and Torres Strait Islander
peoples’ rights.
Outline two factors that affected the success of the 1967 referendum about First Nations people.
In 1957, a petition spearheaded by the Aboriginal-Australian Fellowship (AAF) was circulated, calling for
amendments to ss 127 and 51(xxvi) of the Constitution. The petition received just over 100,000 signatures
and resulted in the Federal Council for the Advancement of Aborigines being introduced. Leslie Haylen
presented this petition to the House of Representatives in May 1957.
In 1965, a student movement, led by Charles Perkins, undertook a 15-day ‘freedom ride’ through New
South Wales towns in which they drew attention to the segregation being experienced by Aboriginal
peoples in the towns they visited. The student group attracted international attention for exposing the
difficult living conditions of Aboriginal people.
Question 15
Australian people to change the Constitution with reference to the 1967 referendum.

I. The Australian people can change the Constitution through petitions. For example, the 1957
petition showed parliamentarians the general public’s desire for the Constitution to be changed,
influencing discussions in parliament which ultimately led to the referendum.
II. The Australian public can influence constitutional reform through demonstrations, such as the
freedom rides in 1965 in the lead-up to the 1967 referendum.
III. The fact the petition was introduced to parliament in 1957, yet the referendum did not take place
until 1967, indicates a limit to the public’s ability to change the Constitution in that this process
is time-consuming.
IV. For a referendum to be successful, a double majority must be achieved whereby a majority of
Australian voters approve the constitutional change and 4/6 of the states have a majority of their
voters vote ‘yes’. Therefore, if minority groups are partaking in demonstrations about an issue that
the rest of Australia is not as deeply invested in, demonstrations will be unsuccessful in influencing
constitutional reform.
Discuss the ability of the Australian people to change the Constitution in reference to the 1967 referendum.

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10E Possible future constitutional reform

• possible future constitutional reform, including reform to establish a First

Nations Voice in the Australian Constitution.
10A 10B 10C 10D 10E
Image: tmpr/Shutterstock.com
‘This is an opportunity for Australia to decide

4.2.11.1 Reform to establish 4.2.11.3 Other possible what kind of country we are, what our
a First Nations Voice in the constitutional reform principles and values are.’—Pat Anderson
Australian Constitution
(Co-Chair Uluru Dialogue group, 2022)
On October 14 2023, Australian voters
4.2.11.2 Reform for Australia 4.2.11.4 The ability of the
to become a republic Australian people to decided whether to establish an Aboriginal
change the Constitution and Torres Strait Islander Voice to Parliament.
This referendum was unsuccessful. However,
future constitutional reform is still possible.
There may be future referendums that require
Australians to consider other amendments
or additions to the Constitution. In order to
reflect the Australian people’s attitudes and
values, constitutional reform may need to
occur so the Constitution can embody the
diverse, multicultural, and democratic nature
of Australian society.
Lesson introduction CONTENT WARNING Aboriginal and

Torres Strait Islander readers should be
Considering only eight referendums have been successful so far in Australia’s history, aware that some material in this lesson
and the last successful referendum occurred in 1977, the Constitution still contains may be culturally sensitive. Examples
sections that members of the Australian public argue are outdated and require change. of this include references to people
Additionally, the Constitution still lacks provisions relating to certain matters that who have passed, sensitive language,
part of the population believes are necessary and must be introduced. The most or distressing events.
recent proposed reform to the Constitution occurred on October 14 2023, when the
Australian people were asked whether they wanted to introduce a First Nations Voice
to Parliament. Other proposed reforms to the Constitution that members of the
Australian public are urging should be made, which have been put to a referendum
in the past yet have not been successful, include:
• Australia becoming a Republic.
• increasing the parliamentary terms of members of the House of Representatives
from three to four years.
Additionally, other constitutional reform currently being pushed by Australians

which have never been put to Australians in a referendum include:
• amending s 44 of the Constitution to change the eligibility requirements for
federal members of Parliament.
• enshrining a Bill of Rights into the Australian Constitution.
• abolishing s 51(xxvi) of the Constitution, known as the ‘race power’.

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Reform to establish a First Nations Voice

in the Australian Constitution 4.2.11.1
10E THEORY
In 2023, Australian voters had to decide whether they approved of constitutionally

KEY TERM
enshrining a Voice to Parliament, which would be an advisory body that would give
Voice to Parliament a proposed advice to parliament and the executive government about policies and laws affecting
advisory body comprised of First Nations peoples. Prior to politicians putting forth the proposal to establish a First
Aboriginal and Torres Strait Islander Nations Voice, consultations were held with Aboriginal and Torres Strait Islander
representatives chosen by local First
people across Australia. These interactions revealed that a majority of Aboriginal and
Nations communities that would
Torres Strait Islander communities agreed upon the Voice to Parliament as a means
give independent advice to the
Commonwealth government during of constitutional recognition and greater representation for First Nations peoples
the law-making process. in Australia. The Uluru Statement from the Heart, created in 2017, set out that a Voice
to Parliament was a means of constitutional recognition broadly agreed upon by
Aboriginal and Torres Strait Islander communities across Australia. It was written and
endorsed by Aboriginal and Torres Strait Islander leaders selected as delegates to the
First Nations National Constitutional Convention.
Although the 2023 Voice to Parliament referendum failed, there is still a chance for
constitutional reform to occur in the future to address the absence of Aboriginal and
Torres Strait Islander constitutional recognition and to further advance the rights
of Aboriginal and Torres Strait Islander peoples in this country.
Table 1 Timeline of significant events leading up to the Voice to Parliament referendum
Year Event Explanation

1967 The 1967 referendum The Constitution was changed in 1967 to alter two discriminatory sections related to
Aboriginal peoples. Although these changes to the Constitution were broadly positive
for First Nations peoples, there are now no references to Aboriginal and Torres
Strait Islander peoples in the Constitution, despite them being Australia’s traditional
custodians with a connection to Australia for tens of thousands of years.
1995 ‘Recognition, Rights and The Aboriginal and Torres Strait Islander Commission (ATSIC) delivered the
Reform’ report delivered ‘Recognition, Rights and Reform’ report to the prime minister at the time, Paul
Keating. In this report, the group called for constitutional recognition, asserting
this recognition to be ‘central to the proper recognition of Aboriginal and Torres Strait
Islander peoples in an inclusive way within Australian society’ (ATSIC, 1995).
1999 1999 Preamble referendum In 1999, John Howard initiated the 1999 Preamble referendum that sought to insert
a preamble into the Constitution which referenced Indigenous ‘custodianship’. This
inclusion would provide Aboriginal and Torres Strait Islander peoples with some
degree of recognition as being in Australia prior to colonisation.
However, granting First Nations peoples constitutional recognition through a preamble
was perceived by the Expert Panel on Constitutional Recognition of Indigenous
Australians (2012) as ‘tokenistic’, meaning that it provided them recognition but made
no changes to their rights or opportunities in Australia. Furthermore, the proposal did
not gain a majority ‘yes’ vote, and therefore the Constitution continued to not make any
formal recognition to Aboriginal and Torres Strait Islander peoples.
2000 ‘Reconciliation: Australia’s The Council for Aboriginal Reconciliation delivered a final report entitled
challenge’ report delivered ‘Reconciliation: Australia’s challenge’. In the report, a roadmap for reconciliation
was laid out and constitutional reform was identified as ‘unfinished business’.
2012 Expert Panel on the The Expert Panel on the Recognition of Aboriginal and Torres Strait Islander Peoples
Recognition of Aboriginal and in the Constitution, which was established by former prime minister Julia Gillard,
Torres Strait Islander Peoples delivered its final report. It found strong public support for constitutional recognition
in the Constitution delivered and recommended a number of ways the Constitution could be reformed to remove any
its final report discriminatory aspects of this document and to provide First Nations peoples with
meaningful recognition.
Continues →
492 CHAPTER 10: Constitutional reform

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Table 1 Continued
Year Event Explanation
10E THEORY
2015 Referendum Council Prime minister Malcolm Turnbull and opposition leader Bill Shorten established the
established Referendum Council, which delivered its final report in 2017. From 2016 to 2017,
the Referendum Council held 12 Dialogues, which were a series of meetings with
Aboriginal and Torres Strait Islander peoples across the country that aimed to provide
an opportunity for participants to discuss the main options for recognition. This
allowed the council to gauge what the general consensus of the Aboriginal and Torres
Strait Islander community was in relation to constitutional recognition.
2017 Uluru Statement from the On the 50th anniversary of the 1967 referendum, in May 2017, a group of Indigenous
Heart is produced Australians came together at the National First Nations Constitutional Convention
in Uluru. At this convention, the Referendum Council shared the priorities gathered
from each of the First Nations Dialogues. As a result of the Convention, the Uluru
Statement from the Heart was produced, which called for:
• a constitutionally entrenched First Nations Voice to Parliament
• a Makarrata Commission to promote treaty and truth.
2018 Joint Select Committee In 2018, the Joint Select Committee released its final report. In this report, the
on Constitutional Recognition Committee made a number of recommendations as to how the Voice to Parliament
of Aboriginal and Torres Strait could be initiated and executed, including that the Australian Government should
Islander Peoples delivers co-design the Voice with Aboriginal and Torres Strait Islander peoples.
its final report The Committee report made suggestions on how the Voice can be truly representative
of First Nations peoples from all over Australia, how representatives should be chosen,
and how the advisory body should be structured.
2023 Anthony Albanese announces In 2022, when Anthony Albanese was elected as Prime Minister of Australia,
Voice to Parliament referendum he reconfirmed his commitment to implement the Uluru Statement from the Heart
to take place in October 2023 and promised to hold a referendum regarding the Voice.
In 2023, he announced the Voice referendum would occur on October 14 2023.
This referendum proposal was unsuccessful.
WANT TO KNOW MORE? LESSON LINKS

In 2021, the Uluru Statement from the Heart won the 2021-22 Sydney Peace Prize. You You learnt about the 1967 Aboriginal
can find out more about the timeline of events leading up to the 2023 Voice to Parliament referendum in 10D The 1967
referendum by searching ‘Uluru Statement from the Heart: The Journey So Far’ and clicking referendum.
the relevant webpage (Uluru Statement from the Heart, 2023). You learnt about the 1999 Preamble
referendum in 10A Reasons for
constitutional reform.
On October 14 2023, Australian electors had to decide whether they approved
You learnt about bipartisan support
of changing the Constitution to add s 129, which would establish the Aboriginal
in 10C Factors that affect the success
and Torres Strait Islander Voice to Parliament. of referendums.
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
i. there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
ii. the Aboriginal and Torres Strait Islander Voice may make representations to the
Parliament and the Executive Government of the Commonwealth on matters relating
to Aboriginal and Torres Strait Islander peoples;
iii. the Parliament shall, subject to this Constitution, have power to make laws with respect
to matters relating to the Aboriginal and Torres Strait Islander Voice, including its
composition, functions, powers and procedures.
Figure 1 The provision the 2023 Voice to Parliament referendum sought to add to the Constitution

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Upon the referendum being announced, the coalition opposition, led by Peter
LEGAL VOCABULARY
Dutton, launched a ‘no’ campaign against the Voice to Parliament. Considering the
Bipartisan support the agreement importance of bipartisan support to a successful referendum, the lack of support
10E THEORY
of the government of the day and the

by the coalition immediately raised concerns about the referendum’s ability
opposition party on a particular issue.
to succeed. The ‘official referendum 2023 pamphlet’ published the arguments for
both the ‘yes’ and ‘no’ campaigns, with these arguments being authorised by the
members of parliament who voted for and against the Voice to Parliament when
it was a bill being passed through parliament.
Table 2 Arguments raised by the ‘yes’ and ‘no’ campaign in relation to the Voice to Parliament (Australian Electoral Commission, 2023)
Yes campaign No campaign

• The Voice to Parliament would be able to make a practical, • The Voice is risky as it covers all areas of the executive
positive difference to Aboriginal and Torres Strait Islander government, suggesting it will have a broad reach that
peoples’ lives as it would ensure the government can make will be determined by the High Court, not the parliament.
better decisions about First Nations peoples by receiving • The details of the Voice are unknown, such as which
their direct advice about policies. representatives would be chosen or how it would operate.
• It could allow practical progress in the health, education, • Constitutionally enshrining the Voice would mean that
employment, and housing of First Nations peoples to occur. it is permanent and future generations will be forced
• It allows for constitutional recognition, whereby Aboriginal to experience any negative repercussions it creates.
and Torres Strait Islander peoples are recognised and have • The Voice would permanently divide Australians as it goes
respect paid for their tens and thousands of years of culture against the democratic system of Australia which suggests
and tradition. everyone and every race is equal before the law.
• The current approach by the government to creating • It will not help Aboriginal and Torres Strait Islanders, as there
policies for Aboriginal and Torres Strait Islander peoples are already many First Nations representative bodies that seek
clearly is not working considering First Nations peoples to advise the government about laws.
still experience: • It could cause the Commonwealth Parliament to experience
– shorter life expectancies delays if the Voice has to review legislation before it can
– higher suicide rates be passed. The Voice may take a while to consult the
legislation and make a decision, slowing the process
– worse rates of disease and infant mortality
of legislation being made.
– fewer education opportunities.
• Once there is a Voice, further activism efforts may occur. For
• The idea for the Voice originated directly from Aboriginal and example, First Nations peoples may seek to abolish Australia
Torres Strait Islander peoples and a majority of Aboriginal and Day, change the flag, or seek reparations and compensation
Torres Strait Islander peoples support the Voice. for past injustices.
• It will save money as the government has previously invested
billions into programs that are not adequately addressing the
problems experienced by First Nations peoples, however,
a Voice would be able to advise the government so they
do not continue to make these ill-fitted policies.
The referendum was unsuccessful as all six states failed to achieve a majority ‘yes’
No 60.1% vote and just 39.9% of the Australian electors overall voted ‘yes’. On the night of
the referendum, when it was clear it had failed, Prime Minister Anthony Albanese
addressed the Australian public, reporting that ‘constitutional change may not
have happened tonight, but great change has happened in our nation’ (9 News
Australia, 2023).
Yes 39.9% WANT TO KNOW MORE?

In the electorate of ‘Melbourne’, almost 80% of voters voted ‘yes’ to the Voice to
Parliament referendum. On the other hand, the electorate of Maranoa in Queensland
Figure 2 The national vote in the 2023 Voice received a ‘yes’ vote of less than 20%. You can find out more about how each electorate
to Parliament referendum (AEC, 2023) in Australia voted in the Voice to Parliament referendum by searching ‘How did your
electorate vote in the voice referendum? Check out our interactive map’ and clicking
the The Guardian webpage (Evershed, 2023).

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DEEP DIVE
Are Nordic parliaments a step ahead of Australia?
10E THEORY
Australia is not the only country to have proposed introducing a Voice to Parliament to
consider the perspectives of Indigenous peoples. In Norway, Finland, and Sweden, elected
bodies have been designed to ensure the perspectives of the Sámi people, the Indigenous
peoples of the three countries, are considered in law-making.
In 1989, Norway established a Sámi Parliament, which does not fulfil the normal, law-making
role of a parliament and cannot vote on bills. Instead, the Sámi Parliament is a body that
makes representations to the Norwegian government on issues concerning the Sámi people.
It seeks to ‘improve the Sámis’ political position and promote their interests’ (Sámediggi,
n.d.). The body is comprised of 39 representatives who are re-elected every four years.
However, the Sámi Parliament and other Nordic bodies were created by legislation, not
constitutionally enshrined. This is different to the proposed Voice to Parliament in Australia
which would have involved amending the Constitution if the 2023 referendum had
been successful. Image: INTREEGUE Photography/Shutterstock.com
Sweden and Finland introduced similar bodies in 1993 and 1996 respectively. A Voice Figure 3 The Sámi Parliament in Norway
to Parliament in Australia could have operated in a similar manner to these bodies. is a body that makes representations
to the Norwegian government about
Adapted from ‘Could these Nordic parliaments give a glimpse of what to expect from the Voice?’ (Orr, 2023) matters concerning Norway’s First Peoples
Reform for Australia to become

a republic 4.2.11.2
Australia, like Britain, is a constitutional monarchy meaning the King is Australia’s
LEGAL VOCABULARY
head of state, who delegates his power as monarch to the Governor-General. However,
there have been persistent debates over the past decades to change Australia’s structure Republic a form of government
of government so that Australia instead becomes a republic. whereby a state is ruled
by representatives from the
Although an unsuccessful referendum was held in 1999 about whether Australia population’s citizens.
should become a republic, debates surrounding whether Australia should or should
not become a republic have remained prevalent over the past two decades. Leading
the push for Australia to become a republic is the Australian Republic Movement.
Additionally, certain federal and state political parties campaign for this change,
such as the Australian Greens Party, which is committed to Australia being declared
a republic.
Table 3 Arguments for and against Australia becoming a republic
For Against
• Australia should have an Australian • Australia should maintain the status
as our head of state, not a British King quo. The current system has certainty
or Queen. and stability, therefore it is unlikely
• Australians should be able to choose an alternative system could be just
who represents them to fulfil as good, or better, than the current
important constitutional roles. system of a constitutional monarchy.
• Choices about Australians’ futures • Changing Australia to become Image: Christie Cooper/Shutterstock.com
should be in the hands of Australians, a republic would require 69 changes Figure 4 Adam Bandt, the current leader of the
to the Constitution all at once, Australian Greens Party, campaigns for Australia
not a foreign monarch. to become a republic
whereas since the Constitution was
• It is undemocratic for the important
formed, only 13 separate amendments
role of ‘head of state’ to be passed
have been made to it, showing just
down through a family and not
how fundamental and significant the
awarded to someone based on their
change would be.
merit or number of votes.
• The changes are unpredictable
• An independent country deserves
as there is no way of knowing how
to elect its own head of state.
making such substantial changes
to the Constitution could affect the
courts, parliament, the system of
government, and Australia as a whole.
Continues →

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Table 3 Continued
For Against
10E THEORY
• The Greens (2023) have described • There are divisions among

the British monarchy as ‘an outdated, republicans themselves as different
colonial, and racist institution built groups propose different models for
on the blood, backs, and stolen becoming a republic.
wealth of brown and black people’. • Australia is already an independent
Therefore, reconciliation with First nation as all legal links with Britain
Nations peoples in Australia can were cut in 1986 when the Australia
only occur if colonialist ties to the Act 1986 (Cth) was introduced.
LEGISLATION
monarchy are severed. Australia is legally and internationally
Australia Act 1986 (Cth) recognised as a sovereign country,
therefore no further independence
will be gained from becoming
a republic.
Do you think Australia In 1999, the question of whether Australia should become a republic was put
should become a republic? to the people. However, the proposal only received support from 45.13% of voters
and therefore, change to the constitution did not occur.
Yes This question proposed whether Australia should install a two-party preferred,
No bipartisan style of government with a president as the head of the state, similar
to America. However, this is not the only way a country can become a republic.
Don’t know Australia could choose to retain the current system of parliament with a prime
minister elected by a public majority who exercises day-to-day authority. The
0 25 50 75 100 Republic of Ireland, for example, made a transition to this style of government
Figure 5 Respondents answers to a 2021 in 1949 when it declared itself a republic.
IPSOS survey asking 1222 Australians whether
they think ‘Australia should become a republic’ In the two decades following this proposal, surveys have been conducted to determine
(Topsfield, 2021)
if the Australian public’s attitude towards becoming a republic has remained the same.
Due to a large portion of people surveyed often responding that they ‘do not know’
or are ‘unsure’ how they would vote, it is difficult to determine whether a republic
referendum would be successful, should it occur within the next few years.
WANT TO KNOW MORE?
You can find out more about Australia
Do you approve of this proposed alteration?
becoming a republic by searching
‘Why should Australia become a A proposed law: To alter the Constitution to establish the Commonwealth of Australia
republic?’ and clicking the Australian as a republic with the Queen and Governor-General being replaced by a President
appointed by a two-thirds majority of the members of the Commonwealth Parliament.
Republic Movement (2022) frequently
asked questions webpage.
Figure 6 The question asked to Australian voters in the 1999 republic referendum
Other possible constitutional reform 4.2.11.3

LESSON LINKS Considering that the Constitution came into effect in 1901 and there have been
You learnt about the principle relatively few amendments since, there are a number of other provisions it contains
of representative government in that people argue should be removed or amended, or sections that should be added.
7H Parliament’s ability to make law Some Australians argue such changes need to occur to uphold the principle
– representative nature. of representative government and to better reflect the modern, multicultural
You learnt about the bicameral nature country Australia has become.
of parliament in 7F Parliament’s ability
to make law – the bicameral structure. In 2019, the Australian Law Reform Commission (ALRC) summarised reforms
to the Constitution that had been raised by parties in recent years, including:
• changing the eligibility requirements for members of the Commonwealth
CONSTITUTION Parliament set out in s 44
• changing the parliamentary terms of members of the House of Representatives
Section 44
from three to four years.
Other reforms have been proposed by interest groups seeking to enhance human rights
protection in Australia, including:
• entrenching an Australian ‘Bill of Rights’ into the Constitution to protect
human rights
• removing the ‘race power’ from the Constitution.

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Table 4 Other possible constitutional reforms
Proposed reform Section of Constitution the Explanation

reform seeks to change
10E THEORY
Changing Section 44, which sets out • It has been argued that the Constitution preventing people with dual
the eligibility a number of disqualifications citizenship from working as a politician goes against the multicultural
requirements for that apply to becoming nature of Australian society.
the Commonwealth a member of the Commonwealth • Migration has resulted in a number of people living in Australia being
Parliament Parliament, one of which is that born overseas and having citizenship in another country. In 2020, more
a person is ineligible to become than 7.6 million people living in Australia were born overseas (Australia
a member of Federal Parliament Bureau of Statistics, 2021).
if they have dual citizenship.
• A number of politicians have been referred to the High Court to have
their eligibility to be a federal member of Parliament determined
after allegations of foreign citizenship, causing the court to have
to hear more cases than it would have to hear if this provision was
removed. If parliament is to be truly representative of the people it
governs, people with dual citizenship should be able to be elected as
members of the Commonwealth Parliament to represent the millions
of migrants in modern Australia.
• If parliament is to be truly representative of the people it governs, people
with dual citizenship should be able to be elected as members of the
Commonwealth Parliament to represent the millions of migrants
in modern Australia.
• In 1998, the Constitution Alteration (Right to Stand for
Parliament-Qualification of Members and Candidates) Bill 1998 was
introduced into the Senate seeking to remove this qualification requiring
members of parliament to not have dual citizenship. However, the bill
did not receive support from parliament. Therefore, a referendum was
never put to the Australian people asking whether they agreed with this
constitutional change.
Changing the Section 28, which states the • In Australia, members of the Commonwealth Parliament serve
parliamentary House of Representatives will three-year ‘fixed terms’ meaning it is not the role of the government
terms of members have a three-year duration, but to call an election but rather elections are automatically called at the
of the House may also be dissolved sooner end of the three-year term.
of Representatives by the Governor-General. • In other Commonwealth countries, such as India, South Africa, and
from three Ireland, members of parliament have five-year fixed terms, whilst
to four years in Canada they have four-year fixed terms, as opposed to in Australia
where a member only has a shorter fixed term of three years.
• All state parliaments in Australia have four-year fixed terms.
• Arguments for changing the terms of members of the House
of Representatives from three to four years include it would be cheaper
since fewer elections would be required, politicians would have greater
time to focus on creating legislation instead of merely campaigning for
the next election, and governments would be able to plan policies better
and execute longer-term policies as they would have a greater number
of years to do so.
• However, arguments against this change include that it will make
politicians less accountable to face electors more infrequently, it may
result in unpopular governments having power for longer, and it would
take longer for voters to be able to express their disapproval of the
government of the day’s policies.
• The question of whether the parliamentary terms of members of the
House of Representatives should be changed has been put to the people
in several referendum proposals in the past, all of which have failed.
Continues →
CONSTITUTION
Section 44

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Table 4 Continued
Proposed reform Section of Constitution the Explanation

reform seeks to change
10E THEORY
Entrenching No section currently establishes • Countries such as Canada, the United States, and South Africa all have
an Australian a Bill of Rights in the a Bill of Rights in their constitution, protecting certain rights. However,
‘Bill of Rights’ Constitution, so a new section Australia does not have one.
into the would need to be added. • Arguments for enshrining a Bill of Rights in the Constitution suggest
Constitution that ‘without a Bill of Rights, many of our basic freedoms, possibly even
to protect including the right to vote of some section of the community, can be
human rights taken away by federal, state, and territory parliaments’ (Williams, 2001).
• For example, in 1901 the Commonwealth Parliament was able to pass
an Act implementing the ‘White Australia’ policy, designed to limit
non-British migration to Australia, whilst in 1950, it passed an Act
banning the Communist Party in Australia (although the High Court
later declared the Act invalid), clear infringements on civil liberties
that would be avoided if Australia had a Bill of Rights protecting
such liberties.
• It has been argued a Bill of Rights ‘would enhance Australian democracy
by expressing the core rights of the Australian people’ (Williams, 2001).
• However, arguments against constitutionally enshrining a Bill of Rights
suggest it will limit the powers of parliament to legislate on certain
matters. Arguments also suggest that the system of representative
government in Australia should ensure laws unfairly infringing
on people’s rights are not passed, as a politician will likely be voted
out at election if they make draconian laws violating human rights.
Removing the ‘race Section 51 (xxvi), which gives • Former NSW Chief Justice, James Spigelman, suggested the race power,
power’ from the the Commonwealth Parliament when initially written into the Constitution, was ‘a racist power’.
Constitution the power to make laws for ‘the • He believes the race power should no longer be in the Constitution
people of any race for whom as it is a ‘dangerous power’.
it is deemed necessary to make
• The Expert Panel on Constitutional Recognition of Indigenous
special laws’.
Australians recommended in 2012 that the section should be removed
and replaced with a power for the Commonwealth to make laws that
only apply to Aboriginal and Torres Strait Islander peoples.
• Former Chief Justice Robert French suggests the Federal Parliament
should still have the power to make laws for Aboriginal and Torres
Strait Islander peoples, not on the basis of their race, but because
of their connection with Australia as the traditional owners of the
land (Lee, 2020).
• Mick Gooda informed the Joint Select Committee on Constitutional
Recognition that the race power ‘permits’ racial discrimination
(Allam, 2018).
LEGAL VOCABULARY USEFUL TIP

Bill of Rights a list of rights that are The study design dot point of this lesson requires students to understand ‘possible
most important to the citizens of a future constitutional reform’, as well as the Voice to Parliament proposed reform.
country, and which many common Therefore, there is no requirement that you understand and memorise each of the
law countries have enshrined in their proposed reforms mentioned in this lesson. Read through the reforms mentioned
Constitution. in this lesson and determine which two reforms you find most interesting, then just
focus on understanding the arguments and information related to these reforms!
CONSTITUTION WANT TO KNOW MORE?

Section 51(xxvi) You can find out more about arguments for and against Australia having an enshrined
Bill of Rights in its Constitution by searching ‘Should Australia Have a Bill of Rights?’
and clicking the Go To Court webpage (Taylor, 2018).

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DEEP DIVE
Parliamentary terms change rejected by the people
10E THEORY
In 1988, a referendum took place which asked Australian voters whether they approved of the
terms of members of the House of Representatives being changed from three years to four.
The proposal received support from just 32.92% of Australian voters and did not receive a
majority ‘yes’ vote in any of the states. Image: EQRoy/Shutterstock.com
Although the referendum was unsuccessful in 1988, over 30 years on from this decision, Figure 7 In 1988, a majority of Australian
the attitude of the Australian public may now swing in favour of changing the Constitution voters did not support changing the
to extend the terms of members of the House of Representatives. Constitution to extend the fixed terms
of parliamentarians in the House of
Adapted from ‘History of Australian Referendums’ (Australian Parliament House, n.d.) Representatives from three to four years
The ability of the Australian people

to change the Australian constitution 4.2.11.4
LESSON LINKS
Considering that only eight out of the 45 referendums that have taken place have been
You learnt about the double majority
successful, it is clear the ability of the Australian people to change the Constitution can
requirement in 10B Referendums.
sometimes be challenged. This is often due to the rigid, double-majority requirement
You learnt about petitions and
that must be met in order for the constitutional change to occur. However, the actions
demonstrations in 9B Influences
of Australians prior to successful referendums indicate that when the public comes on law reform.
together and campaigns for change, such reform can occur.
Table 5 Evaluating the ability of the Australian people to change the Australian Constitution
The Australian people can pressure the government into People must be given the opportunity to vote for constitutional
introducing a constitution alteration bill or can elect a government change. Even if a majority of members of the Australian public
into power that is promising to hold a referendum. One of the want a constitutional change, if the majority of members
initial steps to a referendum is the passing of a constitution of parliament do not introduce or pass a constitutional alteration
alteration bill in parliament, which can be encouraged by public bill, there will not be a referendum. For example, the proposed
pressure. After the bill is passed, a referendum will be held, giving reform to alter the eligibility requirements for parliamentarians
the Australian people the power to change the Constitution. under s 44 of the Constitution has support from a number
of Australians. However, the Constitutional Alteration bill
For example, considering Anthony Albanese promised trying
introduced in 1998 seeking to change s 44 did not pass through
to introduce a Voice to Parliament during his federal election
parliament, meaning a referendum did not take place.
campaign in 2022, by voting in Anthony Albanese as Prime
Minister of Australia in 2022, the Australian people increased their
chances of changing the Constitution as Albanese fulfilled his
promise and initiated a referendum.
Methods such as petitions and demonstrations can drive Referendums are complex, expensive, and time-consuming.
constitutional reform. By engaging in these mass, public efforts, Parliament must first pass a constitution alteration bill, the
members of the Australian public can show politicians that there referendum process must then take place which is lengthy as it
is broad support for constitutional change. For example: requires planning and campaigning, and a successful referendum
• the 1957 petition, led by the Aboriginal-Australian Fellowship is difficult to achieve as the double majority requirement must
(AAF), called for amendments to s 127 and s 51(xxvi) of the be satisfied. The double majority requirement means 4/6 states
Constitution. It received over 100,000 signatures and is one must vote ‘yes’ as well as the majority of voters in the entirety of
of the reasons why the bill to change the constitution was then Australia. Only eight out of 45 referendums held in Australia have
passed in parliament to initiate the 1967 referendum about been successful, demonstrating that the ability of the people to
First Nations peoples. change the Constitution can be limited.
• the Uluru Statement from the Heart was signed by a number of This can be seen in the 2023 Voice to Parliament referendum
First Nations peoples, indicating the desires of some Aboriginal where, despite there being numerous petitions, demonstrations,
and Torres Strait Islander communities to gain constitutional and bodies supporting the change, the double majority
recognition. requirement was not achieved and the referendum proposal failed.
Additionally, in the lead-up to a referendum, petitions and

demonstrations can be used by the Australian people to
influence the way other Australians vote on a referendum,
and ultimately constitutional change. For example:
• in 2023, ‘yes’ campaign marches took place across
Australia, calling for Australians to vote yes during the
Voice to Parliament referendum. Continues →

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Table 5 Continued
10E THEORY
When factors all point towards the referendum being successful, When factors affecting the success of a referendum all point
the Australian people have a greater likelihood of voting ‘yes’ in favour of the referendum failing, it is highly likely to not
to changes to the Constitution. succeed. For example, if in the lead-up to a referendum, there
is a lack of bipartisan support, a lack of voter knowledge, a strong
For example, in the 1967 referendum about First Nations peoples,
‘no’ campaign, and an unpopular politician leading a campaign,
many factors pointed in favour of the ‘yes’ vote succeeding from
the referendum is likely to be unsuccessful.
the outset as there was:
• a lack of a published ‘no’ campaign. The ability of these factors to produce an unsuccessful
referendum can be observed in the Voice to Parliament
• bipartisan support for a ‘yes’ vote to the proposal.
referendum, as there was:
• strong knowledge by voters of what aspects of the Constitution
• no bipartisan support with the opposition leader, Peter
they were changing and what the effects of this were, as the
Dutton, advocating for the ‘no’ vote.
question was written clearly and there was a lot of publicity
surrounding the proposal. • voter confusion as the campaigns in the lead-up to the Voice
to Parliament referendum were ‘flooded with misinformation,
disinformation, and outright lies’ (Allam, 2023).
• a strong ‘no’ campaign led by various groups and people,
including ‘Fair Australia’ which argued ‘we are one together,
not two divided’.
• accusations of politicians supporting the ‘yes’ campaign
to advance their political objectives, instead of supporting
the change for the benefit of Australia. For example, Fair
Australia (2023) accused the Voice of being a ‘pet project
of the politicians in Canberra’.
Bodies established by the government and activist groups can The proposed changes to the Constitution are drafted by
influence constitutional reform. Through their specialised work, politicians. This means that the Australian people do not have
such parties can thoroughly research specific matters and present a role in approving the final wording of the alterations and such
their findings to the Australian public, which may spark public changes may not reflect the true or specific desires of the peoples’
outcry and campaigning for constitutional reform. intentions for constitutional reform.
For example, the Referendum Council, which was established
in 2015, conducted extensive research in order to advise the
prime minister and opposition leader on steps that should
be taken to allow for Aboriginal and Torres Strait Islander
constitutional recognition. Through National Dialogues, the
perspectives of many First Nations communities across Australia
were taken into consideration. Therefore, the panel was able
to condense the priorities of First Nations communities into
a core list of recommendations, including a Voice to Parliament.
By participating in these National Dialogues, members of the
Australian public could influence constitutional change by sharing
their opinions on what should be done.
Referendum voting is compulsory. All eligible voters are able Although voting is compulsory in Australian referendums, there
to have their say in whether the Constitution should be changed. are certain people who are ineligible to vote in referendums.
For example, in 1967, 90.77% of Australian voters approved the Therefore, not all Australian citizens have the ability to have their
constitutional change in relation to Aboriginal and Torres Strait say on changing the Constitution. Currently, a person is not eligible
Islander peoples’ rights, demonstrating how the Australian people to vote if they:
can change the Constitution by exercising their right to vote. • are of unsound mind and, as a result, are incapable
of understanding the nature and significance of enrolment
and voting.
• have been convicted of treason or treachery and have not
been pardoned.
• are the holder of a temporary visa or an unlawful non-citizen,
defined under the Migration Act 1958 (Cth),
• are under the age of 18.
• are serving a prison sentence of three years or more.
LEGISLATION
Migration Act 1958 (Cth)

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Lesson summary
10E QUESTIONS
• Considering the 2023 Voice to Parliament referendum was the first referendum
since 1999, the Australian people have had a very restricted opportunity to change USEFUL TIP
the Constitution in recent decades. Therefore, there are a number of reforms to the The relevant key skill related to this
Constitution that people argue must occur. lesson requires students to ‘discuss
• The most recent proposed reform to the Constitution that was sent to a referendum the ability of the Australian people
to change the Australian Constitution,
was the 2023 Voice to Parliament referendum, however, this referendum was
including in relation to the 1967
unsuccessful. referendum about First Nations people
• Other proposed reforms include: and possible future constitutional
reform’. Therefore, you can refer
– changing Australia to become a republic.
to Table 5 to remember the ways
– changing the eligibility requirements for the Commonwealth Parliament in which Australians have been
set out in s 44. both able to and unable to change
– changing the eligibility requirements for members of the Commonwealth the Constitution.
Parliament set out in s 44.
– entrenching an Australian ‘Bill of Rights’ into the Constitution to protect
human rights.
– removing the ‘race power’ from the Constitution.
• As seen by the success of the 1967 referendum, the Australian people are able
to change the Constitution, however, the failure of the 2023 Voice to Parliament
referendum and the fact that other proposed reforms have not yet been put to
a referendum indicates this ability to change the Constitution is often limited.
10E Questions
Question 1
Considering the high proportion of failed referendums in Australia’s history, the Australian public has stopped
advocating for constitutional reform in recent years.
A. True
B. False
Question 2
The Aboriginal and Torres Strait Islander Voice to Parliament was:
A. created by Anthony Albanese as he believed this idea would allow him to win the 2022 federal election.
B. articulated in the Uluru Statement from the Heart in 2017 after National Dialogues were conducted by the
Referendum Council to determine how Aboriginal and Torres Strait Islander peoples wanted constitutional
recognition.
Question 3
The Voice to Parliament was proposed to be a:
A. third chamber of Parliament that would get to vote on bills and reject any legislation passed through
the Commonwealth Houses of Parliament.
B. an advisory body to allow Aboriginal and Torres Strait Islander peoples to make representations on matters
relating to First Nations peoples.
C. composed of half Aboriginal and Torres Strait Islander peoples, and half members of parliament (MPs),
regardless of whether those MPs were of Aboriginal and Torres Strait Islander descent or not.
D. an independent body not affiliated with any particular party that would be comprised of Aboriginal and
Torres Strait Islander representatives.

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Question 4
10E QUESTIONS
becoming a republic introducing a Voice to Parliament
In 1999, a referendum was held asking Australian voters whether they agreed to .
However, after this proposal failed calls for this referendum to happen again have occurred. On the other hand, for the
first time in 2023, a referendum was put to voters asking whether they supported Australia
Question 5
Which of the following statements are arguments in support of Australia becoming a republic?
A. Australia should have an Australian as our head of state, not a British King or Queen.
B. Australia should maintain the status quo. The current system has certainty and stability, therefore
it is unlikely an alternative system could be just as good, or better, than the current system.
C. An independent country deserves to elect its own head of state.
D. A republic will make us more similar to the United States, autocratic model of governance.
Question 6
There is now popular support for Australia becoming a republic, with recent polling suggesting
95% of Australians want to become a republic.
A. True
B. False
Question 7
Which of the following are proposed reforms to the Australian Constitution that members of the Australian
public have suggested? (Select all that apply)
A. Changing the eligibility requirements for the Commonwealth Parliament so that every member of the
House of Representatives must have dual citizenship to become a member of Parliament.
B. Entrenching an Australian ‘Bill of Rights’ into the Constitution to protect human rights.
C. Changing the parliamentary terms of members of the House of Representatives from three to six years.
D. Removing the ‘race power’ from the Constitution.
Question 8
The Australian public has no role in changing the Constitution. As long as a majority of parliament agrees with
the constitutional change, constitutional reform can occur.
A. True
B. False
Preparing for exams

Standard exam-style
Describe one possible future constitutional reform.
‘The only way for the Australian people to influence constitutional reform is through demonstrations.’
Do you agree with this statement? Justify your response by referring to the 2023 Voice to Parliament referendum.

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Referring to one proposed constitutional reform, explain one strength and one limitation of the Australian
10E QUESTIONS
people in influencing constitutional reform.
Extended response
Question 12
Tick the box to indicate whether the following statements are strengths or limitations of the Australian
people’s ability to change the Constitution with reference to the First Nations Voice to Parliament referendum.

I. The Australian people are able to change the Constitution by pressuring governments to introduce
and pass a constitution alteration bill through parliament so that the public can decide on whether
the Constitution should be changed during a referendum. For example, Anthony Albanese ran his
2022 federal election campaign on the promise he would try to implement a Voice to Parliament,
therefore, since the public indicated they wanted this by electing him as Prime Minister, he was
compelled to initiate constitutional reform in parliament.
II. The Australian public can utilise various tools, such as petitions, to drive constitutional reform.
For example, the Uluru Statement from the Heart was signed by a number of First Nations
peoples, indicating the desires of Aboriginal and Torres Strait Islander communities to gain
constitutional recognition.
III. For a referendum to take place and be successful, a lengthy and difficult process must occur.
Considering only eight out of 45 referendums in Australia’s history have been successful,
it is clear the double majority requirement is difficult to achieve. Despite the advocacy by some
Australians for a Voice to Parliament to be established, the double majority requirement was not
achieved during the referendum as no state had a majority ‘yes’ vote. Additionally, the majority
of Australians voted ‘no’ therefore the national majority requirement also was not achieved.
IV. When factors affecting the success of a referendum all point in favour of the referendum failing,
it is highly likely to not succeed regardless of certain efforts by the public. For example, in the
lead-up to the Voice to Parliament referendum, there was a lack of bipartisan support, a lack
of voter knowledge, and a strong ‘no’ campaign. Therefore, this referendum was unlikely
to be successful from the beginning.
V. A referendum allows all Australian voters to have their say on whether they approve constitutional
change. In the 2023 Voice to Parliament referendum, this resulted in Australians not changing the
Constitution since a majority rejected the change. Therefore, even when there is a large group
of people advocating for constitutional change, their ability to change the Constitution
is contingent on the rest of the Australian public.
Analyse the ability of the Australian people to change the Australian Constitution by referring to the
First Nations Voice to Parliament referendum.

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10E QUESTIONS
Question 14
Tick the box to indicate whether the following statements are strengths or limitations of the Australian
people’s ability to change the constitution.

I. The Australian people are able to change the Constitution by pressuring governments
to introduce and pass a constitution alteration bill through parliament so that the public
can decide on whether the Constitution should be changed during a referendum. For example,
prior to the 1967 referendum, there were a number of activist efforts, such as the Freedom
Rides, which sought to compel parliament to take the first steps in removing the discriminatory
provisions of the Constitution.
II. All eligible voters have to vote in a referendum, therefore, all these individuals are able to have
their say on whether the Constitution should be changed. For example, in 1967, 90.77%
of Australian voters approved the constitutional change in relation to Aboriginal and Torres
Strait Islander peoples’ rights, demonstrating how the Australian people can change the
Constitution by exercising their right to vote.
III. The Constitution can only be changed by a referendum, which requires parliament to initiate
and pass a bill for the referendum to occur. Despite a number of Australians wanting Australia
to become a republic, no parliamentarian in recent years has tried to introduce a constitution
alteration bill on this issue to parliament. Therefore, the ability of the people to change the
Constitution is limited as they cannot vote in a referendum if parliament fails to initiate
a referendum.
IV. When factors all point towards the referendum being successful, the Australian people have
a greater likelihood of voting yes to changes to the Constitution. For example, in the 1967
referendum about First Nations peoples, many factors pointed in favour of the ‘yes’ vote
succeeding from the outset as there was no, published ‘no’ campaign and bipartisan support
for a ‘yes’ vote to the proposal.
V. For a referendum to take place and be successful, a lengthy and difficult process must occur.
In 1999, when the question of whether Australia should become a republic was first put to the
people, the double majority requirement was not achieved as the national ‘yes’ vote was below
50%, therefore constitutional change could not occur regardless of some of the Australian public’s
strong advocating for this change.
Referring to the 1967 referendum about First Nations peoples and one proposed constitutional reform,
discuss the ability of the Australian people to change the Constitution.

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ANSWERS
CONTENTS
Chapter 1 506
Chapter 2 512
Chapter 3 528
Chapter 4 534
Chapter 5 538
Chapter 6 559
Chapter 7 564
Chapter 8 585
Chapter 9 596
Chapter 10 609
Image: chrupka/Shutterstock.com
505
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1A K
ey principles of the 11. [The prosecution has the burden of proof in Acacia’s case, meaning
they have the responsibility of proving the facts of the case. ] 1
criminal justice system [However, in order for Acacia to be found guilty and convicted
of culpable driving causing death, the prosecution must prove that
Acacia is guilty beyond reasonable doubt, which is the standard
Check your understanding of proof in a criminal case.2]
1. True: I; IV; V
I have identified that the prosecution has the burden
False: II; III
of proof.1
2. A. True. Explanation: Summary offences are less severe criminal
I have provided information about the standard of proof
offences generally heard in the Magistrates’ Court.
in a criminal case.2
3. B; D; E. Explanation: Indictable offences can be heard summarily when
I have used connecting words, such as ‘However’.
the offender is eligible, the court agrees, and the accused consents.
4. B. Explanation: Offences found in the Crimes Act 1958 (Vic) are

12. a. [Kavi has been charged with an indictable offence.1][Murder is
generally indictable offences.
a serious indictable offence that is heard and determined in the
5. The burden of proof refers to the responsibility of a party to prove Supreme Court, where cases are heard by a judge and jury.2]
the facts of a case. In a criminal case, the burden of proof rests with
the prosecution. On the other hand, the standard of proof, which I have identified that Kavi has been charged with
is beyond reasonable doubt in criminal cases, refers to the degree an indictable offence.1
to which the facts of the case must be proven in court in order to
find the accused guilty. I have provided information about the indictable
offence of murder.2
6. A. True. Explanation: The accused’s right to silence upholds the
presumption of innocence as the prosecution is required to prove
the facts of the case. The Charter of Human Rights and Responsibilities
b. [Kavi’s friend is incorrect as murder is a serious indictable
Act 2006 (Vic) ensures the accused has the right to remain innocent offence that cannot be heard summarily.1][Given the nature of
until proven guilty. the crime, Kavi’s case would be heard in the Supreme Court,
which hears indictable offences and can also conduct trials by
7. A; B. Explanation: An accused is likely to have their case heard jury.2][Moreover, as murder is an extremely serious crime, severe
summarily, if possible, as it is less costly and time consuming, sanctions are imposed upon those found guilty of the offence and
whilst the maximum sentence imposed in the Magistrates’ Court the Supreme Court can hand down the appropriate sanction.3]
is less severe.
I have identified that Kavi’s friend is incorrect.1
8. B. Explanation: The offence of theft can be heard summarily
if the value of the goods stolen is under $100,000. I have provided one reason why these offences cannot
be heard summarily.2
9. C. Explanation: The accused’s right to be presumed innocent
is upheld by ensuring the prosecution has the responsibility I have provided information about why it would not
of proving the facts of the case and the accused cannot be found be appropriate to have this case heard summarily.3
guilty unless it is proven that they committed the crime(s) beyond
reasonable doubt. I have used connecting words, such as ‘Moreover’.
Preparing for exams 13. [The presumption of innocence and the burden of proof have
Standard exam-style a complementary relationship, as the burden of proof facilitates
the right of the accused to be presumed innocent until proven
10. [Burning rubbish shavings or other materials is found in the Summary otherwise.1][The responsibility to prove the facts of a case in
Offences Act 1966 (Vic), therefore, it is considered a summary offence criminal proceedings is on the prosecution. Therefore, the accused
as it is a minor criminal offence.1][This crime would likely attract does not need to prove the case or validate the charges against
a less severe sanction, like a small fine. This is unlike indictable them.2][Rather, they are legally understood to be innocent until the
offences, which are heard by a judge and/or jury in superior courts prosecution can prove them guilty beyond reasonable doubt.3]
and carry more severe sanctions.2]
I have provided information about the relationship between
I have provided information about summary offences the presumption of innocence and the burden of proof.1
with reference to the Summary Offences Act 1996 (Vic).1
I have provided information about one aspect of the
I have provided information about why burning relationship between the presumption of innocence and
rubbish shavings or other materials is considered the burden of proof.2
1A ANSWERS
a summary offence.2
I have provided information about a second aspect of the
relationship between the presumption of innocence and
the burden of proof.3
I have used connecting words, such as ‘Therefore’

and ‘Rather’.
506 ANSWERS
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14. [The burden of proof is the responsibility of a party to prove the

I have provided one limitation of the Victorian
facts of a case. In a criminal case, the burden of proof rests with
criminal justice system in upholding the presumption
the prosecution.1][On the other hand, the standard of proof refers of innocence.3
to the degree to which the facts of the case must be proven in court.
The standard of proof in criminal proceedings is beyond reasonable I have provided a second way the presumption
doubt.2][One key difference between these two concepts in Olive’s of innocence is upheld by the Victorian criminal
case is that the burden of proof requires the prosecution to prove justice system.4
the facts of the case, whereas the standard of proof requires the
prosecution to prove that there is no reasonable doubt that Olive I have provided a second limitation of the Victorian
is guilty of these crimes.3] criminal justice system in upholding the presumption
of innocence.5
I have provided information about the burden of proof
in this scenario.1 I have provided a third way the presumption of innocence
is upheld by the Victorian criminal justice system.6
in this scenario.2 I have provided a third limitation of the Victorian
criminal justice system in upholding the presumption
I have provided one key difference between the burden of innocence.7
of proof and the standard of proof and linked it to
the scenario.3 I have provided a conclusion to my response that links
‘One key difference’. I have used paragraphs to organise my response.
I have used comparison words, such as ‘On the other hand’ I have used signposting in my response, such as ‘Firstly’
and ‘whereas’, when distinguishing. and ‘Finally’.
I have used connecting words, such as ‘Moreover’

and ‘However’.
Extended response
15. A; D; E
16. [The criminal justice system upholds the presumption of innocence 1B Rights of an accused
to a large extent. There are various mechanisms and rights available
to the accused to ensure they are presumed innocent until proven Check your understanding
otherwise, although, this can be limited in certain circumstances.1]
1. A; D. Explanation: An accused is presumed innocent unless proven
[Firstly, the right to silence is a provision of the Charter of Human guilty, whilst the right to trial by jury is not applicable for summary
Rights and Responsibilities Act 2006 (Vic) that ensures an accused
offences, as these are decided by a magistrate alone or are
individual does not have the obligation to answer any questions
sanctioned by an infringement notice.
and cannot be pressured to give evidence to prove their
innocence or guilt.2][While this can prevent self-incrimination, the 2. B. False. Explanation: There is no exact definition in statute
effectiveness of this right could be reduced if an accused is subject or common law regarding what an ‘unreasonable’ delay is.
to prolonged interrogation and feels threatened or pressured by Rather, the courts decide on a case-by-case basis, considering
authorities to speak.3] a number of different factors.
[Moreover, the right to apply for bail upholds the presumption 3. A; B; D. Explanation: The length of the delay, the complexity of the
of innocence as accused individuals have the right to remain in the case, and the number of offences committed by the accused are
community whilst awaiting trial and should not be imprisoned until all considered by a court when determining whether a delay was
proven guilty.4][However, bail is not an automatic right and if there ‘unreasonable’.
are reasonable grounds, such as the accused is a threat to society,
bail can be denied.5] 4. The right to silence ensures a person is not obliged to supply
information to a person in authority, whereas the right to be tried
[Finally, if the accused is found guilty but believes it is a wrongful without unreasonable delay ensures an accused person’s case
conviction, they also have the right to appeal the verdict and uphold
is heard in a timely manner.
their innocence.6][Yet, the success of an appeal is dependent on
a range of factors, and there are cases where individuals remain 5. A. Explanation: The right to silence upholds the presumption
wrongfully convicted after failed appeals.7] of innocence as an accused person is not required to prove their
innocence, this is presumed.
[Therefore, while there are features of the criminal justice system
that uphold the presumption of innocence, there can be limitations 6. B. Explanation: A judge may make a direction that a jury should
in ensuring all accused individuals are presumed innocent until not perceive an accused’s silence as an admission of guilt.
1B ANSWERS
proven otherwise.8]
7. A; C; D. Explanation: Generally, a unanimous verdict must be
I have provided an introduction to my response.1 reached, meaning all 12 jurors must agree on the same verdict.
However, in some circumstances, a majority verdict of 11/12 jurors
I have provided one way the presumption of innocence will be accepted.
is upheld by the Victorian criminal justice system.2
ANSWERS 507
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8. B. False. Explanation: There are several pieces of legislation, both

I have provided an answer the question.1
Commonwealth and Victorian, that protect the rights of an accused.
I have provided information about the right to silence

Preparing for exams to justify my answer.2
Standard exam-style I have provided an example from the scenario and linked
it to the right to silence.3
9. [One right of an accused is the right to be tried without unreasonable
delay.1][Another right of an accused is the right to be tried by jury for
certain offences.2]
Extended response
I have identified one right of an accused in the Victorian
13. Upheld: I; III
criminal justice system.1
Limited: II; IV
I have identified a second right of an accused in the
14. [The principle of fairness can be promoted in Chirag’s criminal
Victorian criminal justice system.2
case due to the rights he retains as a person accused of a crime.
However, certain aspects of these rights are limited, preventing
‘One right’ and ‘Another right’. fairness from being entirely achieved.1]
[One way fairness could have been achieved in Chirag’s case is the
fact that he was tried by jury, a right he had as he was being accused
10. [The right of an accused to be tried without unreasonable delay
of murder, which is an indictable offence, and pleaded not guilty.2]
is the entitlement accused people possess to have their case heard
in a timely manner, unless the court considers delays to the trial [A jury is an impartial group of citizens that would not contain
anyone that personally knows Chirag. This ensures jury members
to be ‘reasonable’.1][This right aims to ensure an accused receives
would not have any bias for or against Chirag before the trial began,
a fair trial, reducing the likelihood that witnesses’ memories fade
promoting fairness as his guilt would be decided by the jury based
over time and ensuring the accused does not endure the stress and
solely on the facts, rather than prejudices.3][However, jury members
anxiety of waiting for a trial for an extended duration.2]
are still people, therefore they may base decisions off their emotions
or inherent biases they hold against certain races, ethnicities, and
I have defined an accused’s right to be tried without
occupations, instead of solely making their decision according to
unreasonable delay.1
the facts. This would therefore prevent jurors from being entirely
I have provided information about an accused’s right impartial, limiting fairness.4]
to be tried without unreasonable delay.2 [Another way fairness could be achieved is by Chirag exercising
his right to silence and refusing to speak at his trial for murder.5]
11. [The right of an accused to trial by jury ensures a person accused [When an accused person is silent, their lawyer can request that a
of an indictable offence who pleads not guilty can have their guilt judge directs the jury to not make any inferences from the accused’s
determined by members of the community chosen at random, silence. This promotes fairness as jurors would know to remain
meaning they are more impartial, thus promoting the achievement impartial, and not allow Chirag’s silence to sway their verdict about
of fairness.1][Jury members are selected at random, however, the accused’s guilt.6][However, just because a judge gives such a
if a juror has personal connections to either the prosecution or the direction to jury members, this does not mean they will not view an
accused, they are unable to participate as a jury member, preventing accused unfavourably as a result of their silence. Jury members may
people with biases against a party from contributing to the final view Chirag’s silence as an admission of guilt, possibly unconsciously
decision about the accused’s guilt.2][Fairness is therefore promoted without even realising they are doing so. This may lead to an unfair
as jurors are impartial and can determine their verdict based on the result if jurors base their decision on their own ideas, instead of
facts of the case, as opposed to their own personal biases or ideas deciding the verdict on the facts.7]
about the case.3] [Ultimately, although jury members may be impacted by their own
feelings and emotions, fairness will be upheld in this case as Chirag
I have provided one way the right to trial by jury upholds has exercised his right to silence and trial by jury.8]
the principle of fairness.1
I have provided information about my chosen way the
right to trial by jury upholds the principle of fairness.2 I have provided one way the principle of fairness is upheld
in Chirag’s criminal case.2
I have provided further information about my chosen way
the right to trial by jury upholds the principle of fairness.3 I have provided information about my chosen way.3
I have provided one way the principle of fairness is limited

12. [Marika does not necessarily have to give evidence at her trial,
in Chirag’s criminal case.4
although she can do so if she chooses to.1][This is because Marika
1B ANSWERS
is the person accused of committing the crime, therefore she has a I have provided a second way the principle of fairness
right to silence, and to not give evidence in the courtroom if she does is upheld in Chirag’s criminal case.5
not want to do so.2][Marika’s right to silence when in the courtroom
contributes to the presumption of innocence as she does not have to I have provided information about my chosen way.6
prove her innocence in relation to her alleged attack on Piper. Rather,
it is the role of the prosecution to prove that Marika is guilty beyond
reasonable doubt.3]
508 ANSWERS
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I have provided a second way the principle of fairness 1C Rights of victims

is limited in Chirag’s criminal case.7
I have provided a conclusion to my response that links Check your understanding

1. A. True. Explanation: The Victims’ Charter Act 2006 (Vic) creates
I have used signposting in my response, such as various rights for victims regarding how crimes are prosecuted and
‘One way’ and ‘Another way’. how offenders are sanctioned.
2. B. False. Explanation: Witnesses giving evidence in relation to sexual

I have used connecting words, such as ‘However’
offences, family violence, and some other offences can often do so via
and ‘Ultimately’.
alternative arrangements and not in a publicly accessible courtroom.
3. C. Explanation: Road traffic offences are not a category of offences

Linking to previous learning for which witnesses have the right to give evidence using alternative
arrangements in Victoria.
15. [No, Lucia does not have a right to trial by jury as she has committed
a summary offence, not an indictable offence and has pleaded 4. A; B; D. Explanation: Armed robbery and road traffic offences are
guilty.1][Firstly, for an accused to have a right to trial by jury, they not offences for which witnesses can give evidence using alternative
must plead not guilty to an offence. If they pleaded guilty there will arrangements.
be no trial, just a sentencing process.2][Secondly, a driving offence
5. The Victims’ Charter Act 2006 (Vic) provides that the police or Office
is usually a summary offence, not an indictable offence. Summary
of Public Prosecutions may give information concerning an offender
offences are generally heard in the Magistrates’ Court, or may result
to a person included on the Victims Register. This could include
in a person receiving an infringement notice, therefore no jury is used
information such as, the length of the sentence.
to decide an accused’s guilt for summary offences, even where the
accused pleads not guilty.3] 6. B. Explanation: Victims of crime will be provided with information
about the proceedings by the Office of Public Prosecutions or
I have stated that Lucia does not have a right to a trial the police.
by jury.1
7. B. False. Explanation: Only victims of ‘criminal acts of violence’ have
I have provided one reason why Lucia does not have the right to be informed about the likely release date of the offender.
a right to trial by jury.2
8. A. Explanation: A burglary is not defined as a ‘criminal act of violence’
I have provided a second reason why Lucia does not have under the legal provisions that outline the eligibility for a victim to be
a right to trial by jury.3 placed on the Victims Register.
I have used signposting in my response, such as ‘Firstly’ 9. Strengths: II; III

and ‘Secondly’. Limitations: I; IV
16. [The right to silence is a common law right that allows a person Preparing for exams
to remain silent when questioned or asked to supply information by
Standard exam-style
a person in authority.1][The presumption of innocence is the right
for all accused persons to be presumed not guilty until it is proven 10. [One right that all victims have in the Victorian criminal justice
they are guilty beyond reasonable doubt.2][Therefore, the right system is the right to be informed about the proceedings.1]
to silence upholds the presumption of innocence as an accused [Another right that some victims have is the right to be informed
person is able to remain completely silent in a court of law instead of the likely release date of the offender.2]
of defending their innocence, demonstrating that it is not the
accused’s responsibility to prove their innocence, but rather it is the I have provided one right of victims in the Victorian
prosecution’s responsibility to prove the guilt of the accused beyond criminal justice system.1
reasonable doubt.3]
I have provided a second right of victims in the Victorian
I have provided information about the right to silence.1 criminal justice system.2
I have provided information about the presumption I have used signposting in my response, such as
of innocence.2 ‘One right’ and ‘Another right’.
I have provided one way the right to silence upholds the

presumption of innocence.3 11. a. [Seiko will be able to give evidence using alternative arrangements
because the offences she witnessed are the types of offences
I have used connecting words, such as ‘Therefore’. mentioned in the Criminal Procedure Act 2009 (Vic) that allow
for the use of alternative arrangements.1][The provisions in this
1C ANSWERS
Act apply to summary offences involving the use of obscene or

indecent language, as well as summary offences involving sexual
exposure.2][Since the accused shouted at Seiko using indecent
language and obscenities, whilst also indecently exposing himself
to her, it is likely he has been charged with applicable summary
offences that would allow Seiko to give evidence using alternative
arrangements.3]
ANSWERS 509
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I have stated that Seiko will be able to give evidence I have provided information about my chosen reason.4
via alternative arrangements.1
I have provided information to justify my answer.2
I have provided an example from the scenario and linked ‘One reason’ and ‘Another reason’.
it to giving evidence via alternative arrangements.3
I have referred directly to relevant legislation

in my response. Extended response
13. Strengths: I; IV; V
b. [Another right Seiko has is the right to be informed about the Limitations: II; III
proceedings, which is a right outlined in the Victims Charter Act
14. [I agree to a moderate extent that victims are supported and
2006 (Vic), afforded to all victims of crime.1][It provides victims
protected in the criminal justice system because various rights
of crime with the right to be given information about the case
are provided in Victorian statute, however, these rights are not
in which they are involved, such as the offences with which the
applicable to all victims.1]
accused has been charged, details about whether these charges
are withdrawn or changed, key developments in the case, and [There are several ways in which victims are supported and protected
outcomes of a trial, including any sanctions imposed by the in Victoria, by the provision of various victims’ rights in legislation.2]
court.2][The young man has been charged with a number of [Firstly, victims of crime have a right to be informed about the
summary offences, so Seiko would have the right to be informed proceedings, such as being provided with information about the case
about these, as well as other information about the proceedings, in which they are involved. This is important as victims often have
and the outcome of his trial.3] a strong desire to observe the provision of justice.3][Additionally,
victims of serious crimes have a right to be notified of the likely
I have identified one right, besides the right to give release date of the offender, which can provide certainty for victims
evidence via alternative arrangements, that Seiko has and the opportunity to ensure an intervention order is applied for if
as a victim of crime.1 they fear being contacted.4][Further, the Criminal Procedure Act 2009
(Vic) contains provisions that allow some witnesses to give evidence
I have provided information about my chosen right.2
using alternative arrangements. This includes witnesses in trials
involving sexual offences and family violence, thus protecting victims
I have provided an example from the scenario and
from having to face their offender in court or from being intimidated
linked it to my chosen right.3
by the process of giving evidence.5]
I have referred directly to relevant legislation [However, there are limitations to these victims’ rights.6][Under
in my response. the Victims’ Charter Act 2006 (Vic), only victims of criminal acts of
violence can apply to be on the Victims Register for information
I have used signposting in my response, such as about the offender’s release date, meaning not all victims have the
‘Another right’.
right to know when the offender is released.7][Another limitation
of victims’ rights is that the right to give evidence via alternative
Note: The right to be informed of the likely release date of the arrangements is not available to all victims or witnesses. It is only
offender is not a valid answer since the summary offences available in trials for sexual offences, family violence offences, and
mentioned in the scenario do not meet the definition of ‘criminal summary offences involving sexual exposure or the use of obscene
acts of violence’. Therefore, Seiko would not be an eligible victim
or indecent language.8]
for the Victims Register.
[Therefore, while there are some provisions that provide rights to
12. [One reason why the right to be informed of Bob’s likely release victims that somewhat protect them, support may not be adequately
date is beneficial for Makani is that, as she is eligible to be on the available as these provisions do not apply to all victims.9]
Victims Register, she has the opportunity to make a submission
to the Adult Parole Board to express the effects that Bob’s release I have provided an introduction to state the extent to which
may have on her.1][Makani’s right to safety can be considered when I agree or disagree, and a brief reason for my answer.1
a decision is made about Bob’s parole, enabling her to have some
influence on this decision.2] I have provided a topic sentence to introduce the main
idea of the paragraph.2
[Another reason why having this right is beneficial to Makani is
because she genuinely feared for her life at the time of the offences, I have provided one way in which the rights of victims are
so she may feel safer if she is prepared for Bob’s potential release protected in the Victorian criminal justice system.3
by ensuring he is unable to contact her.3][Makani can apply for, or
extend, an intervention order that will prevent Bob from approaching I have provided a second way in which the rights of victims
her, whilst she may take other precautions to protect her own safety.4] are protected in the Victorian criminal justice system.4
1C ANSWERS
I have provided one reason why the right to be informed I have provided a third way in which the rights of victims
is beneficial for Makani.1 are protected in the Victorian criminal justice system.5
I have provided information about my chosen reason.2 I have provided a topic sentence to introduce the main
I have provided a second reason why the right to be
I have provided one limitation of the Victorian criminal
informed is beneficial for Makani.3
justice system in protecting victims of crime.7
510 ANSWERS
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I have provided a second limitation of the Victorian [Furthermore, a victim’s evidence is often crucial for the prosecution
to prove an offender’s guilt beyond reasonable doubt, so it is
criminal justice system in protecting victims of crime.8
important that this evidence is heard by the judge and/or jury.5]
[Therefore, because a victim’s evidence can be essential for proving
back to the question.9 the guilt of an accused, I agree that it is crucial for victims to be able
to give evidence using alternative arrangements.6]
I have referred directly to relevant legislation in
my response.
I have provided an introduction to state whether I agree
or disagree, and a brief reason for my answer.1
I have provided one reason why alternative arrangements

I have used signposting in my response, such as ‘Firstly’,
are crucial in criminal trials.2
and ‘Another limitation’.
I have provided an example of an alternative arrangement
I have used connecting words, such as ‘Additionally’
and linked it to my chosen reason.3
and ‘Further’.
I have provided a second reason why alternative
arrangements are crucial in criminal trials.4
I have provided a third reason why alternative
15. [One right that Leina had as an accused was the right to silence, arrangements are crucial in criminal trials.5
which is a common law right that allows a person to remain silent
when questioned or asked to supply information by a person in I have provided a conclusion to my response that links
authority.1][This right protects accused people, such as Leina, from back to the question.6
self-incrimination and is designed to prevent oppression by the
I have used signposting in my response, such as ‘Firstly’.
police or other authorities.2][Alternatively, one right that Nick has
as a victim is the right to be informed about the likely release date
of Leina, which includes information, such as the earliest possible
and ‘Therefore’.
release date, when Leina applies for or is released on parole, and
whether that parole is cancelled.3][This victims’ right is provided to
victims of ‘criminal acts of violence’, which includes assault, so Nick
would be eligible for the Victims Register to receive information
about the likely release date of Leina.4]
I have identified and defined one right of an accused

person.1
I have provided information about my chosen right

of an accused person.2
I have identified and defined one right of a victim.3
I have provided information about my chosen right

of a victim.4
I have linked my answer to the scenario where appropriate.
I have used signposting in my response, such as ‘One right’.
I have used connecting words, such as ‘Alternatively’.
16. B; C; D
17. [I agree with this statement because the standard of proof in a criminal
trial is ‘beyond reasonable doubt’, which is a high threshold of guilt.
Hence it may be difficult for the prosecution to prove an accused’s
guilt beyond reasonable doubt, without evidence from the victim.1]
[Firstly, alternative arrangements enable witnesses who may

otherwise be too intimidated to participate in a trial, a means by
1C ANSWERS
which they can still be involved. This can prevent a trial from being
discontinued due to a victim’s fear of giving evidence.2][For example,
victims of crime who have been traumatised by their experience are
more likely to give evidence as a witness, in the accused’s trial, if they
can do so via CCTV, without physically seeing the accused.3][This
also ensures victims do not present unreliable evidence as a result
of feeling intimidated by the accused.4]
ANSWERS 511
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2A T
he principles of justice I have provided one reason why Theo’s trial may not
achieve the principle of access.1
during a criminal case I have provided information about my chosen reason.2
Check your understanding I have provided a second reason why Theo’s trial may not
achieve the principle of access.3
1. A. Explanation: The justice system must be accessible to all
individuals, everyone must be treated the same, and a fair trial I have provided information about my chosen reason.4
should occur.
2. B. Explanation: Whilst all accused people are entitled to seek
‘One reason’ and ‘another reason’.
legal representation, they may not be able to afford it. This limits
the achievement of fairness as a self-represented accused may I have used connecting words, such as ‘Furthermore’.
be unable to present their case in the best possible light.
3. The principle of equality is upheld when all people are able to engage
with the justice system without disparity or disadvantage. Extended response
4. A; C; D. Explanation: The principle of equality requires all people 10. Strengths: II; III; IV
engaging with the justice system to be treated the same, although, Limitations: I; V
if the same treatment results in disadvantage, an accused may
be treated differently to ensure equal outcomes for all individuals. 11. [The principles of fairness and equality may be achieved in Axel’s case,
subject to certain limitations.1]
5. A. True. Explanation: An accused who understands their rights and
legal processes may be able to engage more comprehensively with [One way fairness can be achieved in Axel’s case is that, as an
the justice system, improving their access. accused, he will be presumed innocent until proven guilty. This means
the prosecution will attempt to prove his guilt, as they initiated the
6. A; B; C. Explanation: Criminal processes and procedures that case against Axel, ensuring a just outcome is achieved.2][However,
increase engagement with the justice system help achieve the fairness can be limited by Axel’s self-representation as he may be
principle of access. unable to present his case in the best possible light.3][Axel does not
know how to properly present his evidence and is worried he might
7. A. True. Explanation: Equality can be attained by treating people say something that incriminates himself. His lack of legal presentation
differently to ensure an equal result, which achieves fairness experience, when compared to the skill of the prosecution, could
by promoting a just outcome for an accused.
jeopardise the achievement of a just outcome.4]
[On the other hand, one way equality may be achieved is that the
Preparing for exams judge and jury in Axel’s case must be independent and unbiased,
Standard exam-style basing their decisions solely on the facts of the case and not the
characteristics of the prosecution or the accused.5][Although, despite
8. [Fairness is the principle that all people can participate in the justice this, equality may not be achieved if the judge has an unconscious bias
system and its processes should be impartial and open.1][Birrani’s in favour of the prosecutor, given they appear to be friends. If this is the
decision to represent himself can limit the achievement of fairness case, the achievement of equality may be jeopardised as Axel and the
as he may be unable to present his case in the best possible light.2] prosecutor are unlikely to be treated in the same way.6]
[As Birrani speaks very little English and is not familiar with the justice [Overall, the requirement of the presumption of innocence and
system, this may lead to an unjust outcome in his case, limiting the an independent judge and jury assist in upholding the principles
achievement of fairness.3] of fairness and equality. However, as Axel is representing himself and
the judge appears to be friendly with the prosecutor, the achievement
I have defined fairness as a principle of justice.1 of fairness and equality may be limited in this case.7]
I have provided one reason why fairness may not I have provided an introduction to my response.1
be achieved in this case.2
I have provided one way the principle of fairness may
I have provided an example from the scenario and linked be achieved in Axel’s criminal case.2
it to fairness as a principle of justice.3
I have provided one way the principle of fairness may
be limited in Axel’s criminal case.3
9. [One reason why Theo’s trial may not achieve access is that the trial
was delayed significantly, causing Theo to feel stressed and anxious. ] 1
I have provided an example from the scenario and linked
[This limits the achievement of access as the case is not being heard it to the achievement of fairness.4
in a timely manner, reducing Theo’s ability to engage with the justice
system as an alleged victim of crime.2][Furthermore, another reason I have provided one way the principle of equality may
2A ANSWERS
why Theo’s case may not achieve access is that he was not informed be achieved in Axel’s criminal case.5
of the proceedings related to the trial.3][This limits the achievement
of access as Theo has a right to be involved in court proceedings as a I have provided one way the principle of equality may
victim of crime. Therefore, by not being informed about proceedings, be limited in Axel’s criminal case.6
he is unable to adequately engage in the justice system.4]
512 ANSWERS
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I have linked my answer to the scenario where appropriate. 2B V

ictoria Legal Aid and
I have used paragraphs to organise my response community legal centres
‘One way’. Check your understanding
I have used connecting words, such as ‘However’ and 1. A. True. Explanation: Both VLA and CLCs have the shared goal
‘On the other hand’. of providing affordable legal advice for accused people and victims
of crime.
2. C. Explanation: Counselling services are not provided by VLA

Linking to previous learning as they focus on legal information, advice, and support.
12. a. [One right of victims, such as Dewei, is the right to be informed 3. A; B; C. Explanation: Grants of legal assistance are provided by VLA.
about the proceedings.1]
4. Strengths: I; IV
Limitations: II; III
I have identified one right of victims in the Victorian
5. The income test requires an accused to demonstrate that their
income is limited or their main source of income is welfare
payments from the government in order to receive duty lawyer
‘One right’.
assistance. On the other hand, the means test considers an
accused’s income, assets, and expenses to determine whether
b. [The right to be informed about the proceedings ensures victims they are eligible for a grant of legal assistance
of crime, such as Dewei, are able to engage with the justice system
6. A; C. Explanation: Whilst VLA’s eligibility requirements prioritise
as they are provided with information about the case in which they
those most in need, others who are in the middle ground, whose
are involved, achieving access to justice.1][Another way access
circumstances are not considered dire enough to warrant help, are
is upheld by this right is that it ensures the police and prosecutors
unable to receive legal assistance, limiting the achievement of equality.
minimise suffering experienced by victims, such as Dewei,
by keeping victims informed, promoting access.2] 7. B. Explanation: CLCs are less accessible to those who live in remote
areas as there are fewer regional CLC locations, therefore limiting
I have provided one way a victim’s right to be informed access to legal resources and support for individuals within
about the proceedings upholds the principle of access.1 those communities.
I have provided a second way a victim’s right to be

informed about the proceedings upholds the principle Preparing for exams
of access.2
Standard exam-style
‘Another way’.
8. [One role of Victoria Legal Aid (VLA) in assisting an accused person
is providing free information.1][General information about the law
and legal matters is readily available on the website, in brochures,
13. [The burden of proof is the responsibility of a party to prove the and over the phone.2][These resources are free, available in different
facts of a case. In a criminal case, the burden of proof rests with the languages, and are accessible to everyone. They aim to educate
prosecution.1][The principle of fairness is upheld by the burden accused individuals and the community about legal matters, criminal
of proof as the prosecution is pursuing the case against the accused, law procedures, and provide general legal support.3]
and therefore, the onus is on them to prove the facts and claims
against the accused.2][It is not the responsibility of the accused I have identified one role of Victoria Legal Aid in assisting
to prove their own innocence, as this would be unfair.3] an accused person.1
I have defined the burden of proof.1 I have provided information about my chosen role
of Victoria Legal Aid.2
I have provided one way in which the burden of proof
upholds the principle of fairness.2 I have provided further information about my chosen role
of Victoria Legal Aid.3
I have provided information about the relationship
between the burden of proof and the principle I have used signposting in my response, such as
of fairness.3 ‘One role’.
9. a. [ Community legal centres (CLCs) are independent organisations

2B ANSWERS
that aim to enhance access to justice for members of the

community by providing free general and specialist legal
services.1][CLCs enhance individuals’ access to the justice
system by allowing them to engage with legal matters in
an informed manner and with relevant legal support.2]
ANSWERS 513
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I have provided information about the main purpose I have provided information about why Victoria Legal
of community legal centres.1 Aid would be more appropriate than a community legal
centre in this scenario.3
I have provided further information about the purpose
of community legal centres.2
Extended response
b. [Community legal centres (CLCs) uphold the principle of fairness
by providing high quality, free legal support and education to 12. Strengths: I; II
Limitations: III; IV
members of the community, including the accused.1][This enables
accused individuals to adequately participate in legal proceedings,
13. [Victoria Legal Aid (VLA) and community legal centres (CLCs)
understand the case against them, and present their cases in
can uphold the principle of access to a moderate extent. However,
the best light, hence encouraging just outcomes.2][Moreover,
they are limited in their ability to do so due to available resources
CLCs can provide legal representation in limited circumstances,
and funding.1]
further assisting accused individuals in achieving fair outcomes by
assisting them to navigate the complex criminal justice system.3] [Firstly, VLA’s legal services can be accessed in multiple ways.
For example, it offers assistance in person, over the phone, and
I have provided one way community legal centres online, meaning that individuals are provided with multiple avenues
uphold the principle of fairness when assisting through which they can access legal support.2][Similarly, CLCs are
accused people.1 located across metropolitan Melbourne and in some regional areas,
with some providing legal assistance over the phone, therefore
I have provided information about my chosen way.2 promoting access to legal information and advice for members
of the community.3]
I have provided a second way community legal
centres uphold the principle of fairness when [Moreover, access to legal representation and the ability to engage
assisting accused people.3 with the legal system is facilitated by VLA and CLCs. VLA provides
duty lawyers and grants of legal assistance to eligible clients,
increasing their access to the criminal justice system, and ensuring
10. [One role of community legal centres (CLCs) is to help victims, they can participate in the processes in an informed manner.4][CLCs
such as Charles, navigate the legal process by providing free legal can also provide legal representation for accused individuals and duty
information.1][General legal information can be provided in person lawyers for victims in some circumstances, enhancing access to legal
and online, whilst specialist CLCs can ensure relevant resources representation for those in disadvantageous circumstances.5]
and legal support are available for specific legal matters, such as
discriminatory crimes.2][Therefore, a disability-focused CLC could
[However, though VLA and CLCs can both provide legal representation
and tailored advice to varying degrees, this support is not widely
provide relevant legal support and assistance to Charles, enabling
available.6][CLCs usually provide assistance for relatively minor
him to receive justice for his attack.3]
criminal matters and therefore, do not promote access to resources
for those charged with very serious criminal matters. Moreover, CLC
I have identified one role of community legal centres
representation for accused individuals is very limited and difficult to
in assisting Charles.1
acquire, for example, it can only be provided to an accused if they have
I have provided information about the role of community a grant of legal assistance which is also hard to obtain.7][Likewise,
legal centres.2 VLA duty lawyers and grants of legal assistance can only be provided
if the accused satisfies the income and means test, respectively, and
I have provided an example from the scenario and linked duty lawyers are only available in the Magistrates’ Court and not for
it to the role of community legal centres.3 indictable offences.8]
I have used signposting in my response, such as ‘One role’. [Finally, both VLA and CLCs are limited in their abilities to facilitate
access to legal resources and support due to a lack of funding. ] 9
[The demand for legal services is greatly disproportionate to

11. [Victoria Legal Aid (VLA) would be more appropriate for Kai the assistance available. Therefore, more individuals may be left
as they are set to appear in the Magistrates’ Court and may need uninformed and unable to adequately engage with the criminal
tailored advice to assist them in resolving the matter.1][Unlike justice system and achieve justice.10]
community legal centres (CLCs), VLA has duty lawyers available
in the Magistrates’ Court to assist people charged with summary
[In conclusion, whilst VLA and CLCs can promote access to legal
services and support to the community in many different ways,
offences, and can provide advice and representation to accused
their ability to do so is limited by available resources and
individuals on the day of their hearing.2][Given Kai’s matter is a
financial restrictions.11]
summary offence, if they satisfy the requirements of the income
test, they may be eligible for duty lawyer assistance which would
I have provided an introduction to summarise my answer.1
be beneficial given they do not have knowledge of the criminal
justice system and English in their second language.3] I have provided one way VLA upholds the principle
2B ANSWERS
of access.2
I have identified that VLA would be more appropriate
in Kai’s scenario.1 I have provided one way CLCs uphold the principle
of access.3
I have provided information about the role of VLA in
assisting accused individuals.2
514 ANSWERS
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3. A; B; D. Explanation: Plea negotiations secure a conviction by

I have provided a second way VLA upholds the principle
ensuring the accused pleads guilty to a charge(s), avoiding the
of access.4
costs, time, and stress associated with a criminal trial. However,
a penalty is not decided at this time.
I have provided a second way CLCs uphold the principle
of access.5 4. B; D. Explanation: Plea negotiations may be appropriate
in circumstances where the prosecution is unsure if they
I have provided one way VLA and CLCs are limited in their
can secure a verdict of guilty at trial.
ability to uphold the principle of access.6
5. If a plea negotiation results in the accused pleading guilty
I have provided information about my chosen way and to a charge that does not adequately reflect the crime, this
linked it to CLCs.7 prevents the achievement of fairness.
I have provided information about my chosen way and 6. B. False. Explanation: There are circumstances where plea
linked it to VLA.8 negotiations are not appropriate, including if the accused
is not willing to plead guilty to the charge(s) against them.
I have provided a second way VLA and CLCs are limited
in their ability to uphold the principle of access.9
Preparing for exams
I have provided information about my chosen way.10
Standard exam-style
back to the question.11 7. [One participant in the plea negotiation process is the accused. ] 1
[Another participant is the prosecution. ] 2

I have identified one participant in the plea
I have used signposting in my response, such as ‘Firstly’ negotiation process.1
and ‘Finally’.
I have identified a second participant in the plea
I have used connecting words, such as ‘Therefore’ negotiation process.2
and ‘Moreover’.
‘One participant’ and ‘Another participant’.

8. [Plea negotiations may be appropriate in cases where victims and
14. [Community legal centres (CLCs) could help Sonia understand her witnesses are reluctant to give evidence, or where giving evidence
rights as a victim by providing her with information about trial and will be particularly traumatic for the victim or witnesses.1][In these
her rights when giving evidence.1][Given that Sonia was a victim circumstances, the prosecution may decide to enter into plea
of a sexual assault offence, she has the right to give evidence using negotiations with the accused to avoid going to trial altogether so
alternative arrangements.2][Therefore, CLCs can assist her in victims and witnesses do not have to present their evidence in court.2]
understanding the different ways she could give evidence, such as [Plea negotiations may also be appropriate where the accused or
via CCTV, which may ease her stress and enable her to adequately prosecution wishes to avoid the costs and time associated with a
participate in the proceeding and achieve a fair outcome.3] criminal trial.3][In these circumstances, either party may enter into
plea negotiations to ensure a prompt resolution of the case without
I have provided one way CLCs could assist Sonia in
the need for a full criminal trial.4]
understanding her rights as a victim.1
I have identified one reason why plea negotiations may
I have provided examples from the scenario and linked
be appropriate in determining a criminal case.1
them to the rights of victims.2
I have provided information about my chosen reason.2
I have provided information about CLCs and their ability
to assist Sonia as a victim.3
I have provided a second reason why plea negotiations
may be appropriate in determining a criminal case.3
2C Plea negotiations

9. [One reason why a plea negotiation would be appropriate is that it
will result in an early determination of the case by avoiding the trial
1. B. False. Explanation: Plea negotiations may be initiated by either that is more than 14 months away.1][This is appropriate as Lottie
the prosecution or the accused. wants the case to be resolved quickly and engaging in successful plea
negotiations can avoid the trial process in the County Court. Therefore,
2C ANSWERS
2. A. Explanation: It is the role of the court to impose an appropriate Lottie’s case can be resolved far quicker than if a trial were conducted,
sentence upon the accused. Plea negotiations merely result in the avoiding court delays.2][However, one reason why a plea negotiation
parties agreeing to the charges to which the accused will plead may not be appropriate is that Nico’s family wants to see Lottie
guilty, not the sentence. punished severely.3][Plea negotiations may result in Lottie pleading
guilty to a lesser charge than culpable driving and therefore, this may
lead to Nico’s family believing Lottie has been ‘let off’ too easily.4]
ANSWERS 515
Back to contents
I have provided one reason why a plea negotiation would Linking to previous learning
be appropriate in this scenario.1
12. Strengths: I; II
I have provided information about my chosen reason.2 Limitations: III; IV
I have provided one reason why a plea negotiation would 13. [Plea negotiations achieve fairness and access to a large extent by
not be appropriate in this scenario.3 securing a conviction in cases where the evidence may not be strong
enough, whilst also avoiding the costs and time associated with trial.1]
[Firstly, one way plea negotiations achieve fairness is because they
may result in the accused pleading guilty to a charge that adequately
reflects the crime, leading to a just outcome to the case.2][However,
‘One reason’.
where plea negotiations result in the accused pleading guilty to a
I have used connecting words, such as ‘Therefore’ charge that does not adequately reflect the crime, this may result in
and ‘However’. the community feeling an accused has been ‘let off’. This could lead to
the impression that the outcome was unfair, limiting the achievement
of fairness.3][Another way fairness may be achieved is in cases
where witnesses are reluctant to give evidence, or if some evidence
Extended response in inadmissible in court, as successful plea negotiations can secure a
conviction, providing an alternative avenue for securing a conviction,
10. A; C; D
without the need for the matter to proceed to trial.4]
11. [Plea negotiations may be appropriate in Tabitha’s case as she [Furthermore, plea negotiations achieve the principle of access as
can avoid having to represent herself in a criminal trial, which is they save the courts time and resources by allowing cases to be
particularly beneficial due to her limited case presentation skills.1] resolved before going to trial. This minimises delays and frees up court
[Therefore, plea negotiations could result in Tabitha pleading guilty in resources to make the legal system more accessible for cases that
return for a concession from the prosecution, such as a lesser charge do go to trial.5][However, plea negotiations are conducted in private,
that potentially results in a reduced sentence.2][Additionally, plea meaning victims, their families, and society cannot engage in this
negotiations may also be appropriate in securing a conviction for the process, reducing the achievement of access.6][Access may also be
prosecution. This is because Aria is reluctant to give evidence at trial limited for some accused persons as the prosecution has to agree
as she does not want to relive the traumatic experience by presenting to conduct plea negotiations.7]
evidence, potentially reducing the likelihood of Tabitha being convicted
if a trial were to proceed.3] I have provided an introduction to summarise my answer
to the question.1
[However, as Joe’s parents wish to see justice served at trial, plea
negotiations may not be appropriate, as such negotiations could result
I have provided one way plea negotiations promote the
in the prosecution providing a concession to Tabitha in return for a
achievement of fairness.2
plea of guilty.4][This could cause Joe’s parents to believe Tabitha has
‘gotten off lightly’ considering the seriousness of the offence.5] I have provided one way plea negotiations limit the
[Overall, despite the potential perception that Tabitha has been achievement of fairness.3
‘let off’, plea negotiations are appropriate in securing a conviction
I have provided a second way plea negotiations promote
and avoiding a full criminal trial in this case.6]
the achievement of fairness.4
I have provided one reason why plea negotiations are
I have provided one way plea negotiations promote the
appropriate in this scenario.1
achievement of access.5
I have provided one way plea negotiations limit the
are appropriate in this scenario.3
I have provided a second way plea negotiations limit the
I have provided one reason why plea negotiations are not
appropriate in this scenario.4

‘Firstly, one way’ and ‘Another way’.
and ‘Furthermore’.
2C ANSWERS

and ‘Additionally’.
516 ANSWERS
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2D T
he Victorian 12. a. [In order to appeal her case, Kaya must have valid legal grounds.
This could include appealing her conviction and guilty verdict,
court hierarchy appealing her five year imprisonment sentence, or appealing on

a question of law.1][If Kaya determines she has valid grounds for
and criminal cases an appeal, she may also need leave to appeal, which is permission
from the Court of Appeal to appeal a case.2]
Check your understanding I have identified the three grounds for an appeal.1
1. A. Explanation: The courts are ordered from least to most superior. I have provided information about the appeals process.2
2. B. False. Explanation: The Magistrates’ Court does not have

I have linked my answer to the scenario where
appellate jurisdiction.
appropriate.
3. B. Explanation: Parking fines are summary offences and are heard
in the Magistrates’ Court. b. [Given that armed robbery is an indictable offence heard in the
4. Specialisation refers to a court’s ability to develop expertise in a County Court, the appeal would be heard in the Court of Appeal. ] 1
particular area of criminal law, and in dealing with specific criminal [The Court of Appeal’s appellate jurisdiction includes the hearing
cases as a result of the court hierarchy. and determination of all appeals for crimes originally heard by
a judge and jury in the County Court or Supreme Court – Trial
5. B; C; E. Explanation: Parties can only appeal a case on valid grounds, Division.2][Appeals heard by the Court of Appeal can be based on
such as appealing on a question of law, appealing the conviction, any valid grounds, including appeals against the sanction imposed,
or appealing the sanction imposed. on questions of law, or the appeal of a conviction.3]
6. C. Explanation: The Court of Appeal only has the legal authority I have identified that the appeal would be heard in the
to hear cases on appeal. Court of Appeal.1
7. B. False. Explanation: Courts can only hear cases explicitly within

I have provided information about the appellate
their jurisdiction.
jurisdiction of the Court of Appeal.2
8. B. False. Explanation: It is not guaranteed that a party can appeal
I have provided further information about the
a case as they may need leave to appeal.
appellate jurisdiction of the Court of Appeal.3
9. A. Explanation: The Victorian court hierarchy facilitates
specialisation and the process of appeals in criminal cases.
13. [No, I do not agree with this statement. Appeals uphold the principle
of access and ensure all individuals are afforded access to a fair trial
Preparing for exams in circumstances where the original ruling may have been unjust.1]
[If a party is dissatisfied with the outcome of a case, they have the
Standard exam-style right to apply for leave to appeal a case and, if successful, have a
higher court review the decision of the lower court.2][If all rulings were
10. [One reason for the Victorian court hierarchy is appeals. This means
final and there were no opportunities to appeal, the criminal justice
that, if a party is dissatisfied with the outcome of a case, they can
system would be ineffective as any mistakes or inconsistencies in the
seek to have the decision reviewed by a higher court.1][Therefore, the
original ruling could not be rectified by a superior court.3][Therefore,
court hierarchy allows more superior courts to review the decisions
appeals enhance a party’s access to bodies that can deliver justice and
of lower courts, however, a party may need leave to appeal as it is not
a fair outcome when engaging with the criminal justice system.4]
an automatic right.2]
I have stated whether I agree or disagree with the

I have identified one reason for the Victorian
statement and provided an introduction to my response.1
court hierarchy.1
I have provided information about the process of appeals.2

I have provided one way appeals uphold my chosen

11. [Specialisation is facilitated by the Victorian court hierarchy as it principle of justice.3
allows each court to develop expertise in a particular area of criminal
I have provided information about my chosen way
law.1][This means the court hierarchy allows each court to become
appeals uphold the principle of justice.4
familiar with hearing certain types of criminal cases, and the laws and
procedures, relevant to these cases.2][For example, the Supreme Court I have used connecting words, such as ‘Therefore’.
– Trial Division specialises in hearing murder cases.3]
I have stated how specialisation is facilitated by the

2D ANSWERS
Victorian court hierarchy.1 Extended response
I have provided information about how specialisation 14. B; E

is facilitated by the Victorian court hierarchy.2
I have provided an example of specialisation to support

my answer.3
ANSWERS 517
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15. [I do not agree with this statement as the efficiency and effectiveness I have provided information about the court hierarchy.2
of the Victorian courts are dependent on its hierarchical structure.1]
I have provided information about the relationship between
[Firstly, the court hierarchy facilitates specialisation and expertise. ] 2
the court hierarchy and one right of an accused individual.3

[This means that, as a result of the ordering of the courts, judges of the
respective courts are experienced and skilled in dealing with particular
areas of criminal law and the relevant court procedures.3][If there was
only one level of courts, it would be difficult to determine which court
should hear particular matters as the judges would not be specialised
2E J udges, magistrates, and
in any specific areas of law. Resultantly, this could lead to delays and
inconsistencies in court rulings.4]
juries in a criminal case
[Moreover, the appeals process is reliant on the courts being ranked Check your understanding
from least to most superior.5][If a party is unsatisfied with the
outcome of a case, they have the right to apply for leave to appeal and 1. C. Explanation: In VCE Legal studies, phrasing and details are very
have the final decision reviewed by a superior court, as a result of the important to obtain full marks. So whilst the other answers have
court hierarchy.6][Therefore, if the court hierarchy did not exist, there partially correct elements, they are not entirely accurate or acceptable.
would be no opportunity for potential errors to be reconsidered
by a higher court and more experienced judge.7] 2. B. False. Explanation: The jury only determines the verdict. It is the
role of the judge to hand down a sentence.
[Hence, it is imperative that the Victorian courts are hierarchically
ordered to ensure the functional and smooth delivery of justice. ] 8
3. B; D. Explanation: There is no jury in the Magistrates’ Court, thus
magistrates never direct a jury. Further, questioning witnesses
I have stated whether I agree or disagree with the is a role of the prosecution and defence lawyers, not the magistrate.
statement and provided a summary of the reason for
my answer.1 4. C. Explanation: Jurors are not allowed to have relations with the
parties. Therefore, Axin, Cora, and Ethan have committed juror
I have provided a topic sentence to introduce the main misconduct that could lead to a mistrial. Bellamy’s pact with the
idea of the paragraph.2 other jurors is also considered juror misconduct, and a mistrial
would be ordered in this case.
I have provided one reason why the court hierarchy
should or should not exist.3 5. B. False. Explanation: Though the judge may clarify and assist the
jury in understanding different areas of law, the judge cannot assist
I have provided one consequence of not having the jury in determining a verdict.
a court hierarchy.4
6. B. False. Explanation: The jury cannot conduct external research
I have provided a topic sentence to introduce the main and must make their decision based on the evidence presented
idea of the paragraph.5 in court alone.
I have provided a second reason why the court hierarchy 7. Judges and magistrates rely on the parties to present all relevant
should or should not exist.6 evidence during a trial. If an accused person has no legal
representation, this may prevent the principle of fairness from
I have provided a second consequence of not having being achieved.
a court hierarchy.7
8. A trial by one’s peers protects democracy, ensuring decisions
I have provided a conclusion to my response that links are based on the facts and reflect community values. This promotes
back to the question.8 access by engaging citizens in and informing them about the
legal system.
I have used signposting in my response, such as ‘Firstly’. Preparing for exams

Standard exam-style
I have used connecting words, such as ‘Moreover’
and ‘Hence’. 9. [One role of the jury is to carefully consider the evidence presented
and weigh it against the legal standards communicated in the judge’s
instructions.1][The jury must determine its verdict based solely on the
Linking to previous learning evidence presented in court and not on any outside information or
biases.2][This ensures the accused person is given a fair and impartial
16. [The Victorian court hierarchy promotes accused individuals’ right trial, where justice is served.3]
to be tried without unreasonable delay.1][As the court hierarchy
facilitates specialisation, each court has expertise in dealing with I have identified one role of the jury in a criminal case.1
certain types of criminal matters and proceedings.2][This means
2E ANSWERS
knowledgeable judges are familiar with hearing and determining I have provided information about my chosen role of the
specific cases, reducing the likelihood of delays as judges would be jury in a criminal case.2
familiar with the effective case management of the types of matters
I have provided further information about my chosen role
they preside over.3]
of the jury in a criminal case.3
I have identified one way in which the Victorian court
I have used signposting in my response, such as ‘One role’.
hierarchy promotes one right of an accused individual.1
518 ANSWERS
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10. [In Aayush’s case, the judge is responsible for managing courtroom judge is unable to provide them with legal advice or assistance beyond
proceedings and ensuring the trial is conducted in a fair and efficient explaining basic legal procedures. This limits a judge’s ability to ensure
manner.1][This involves making decisions on what evidence can be a fair trial and facilitate the administration of justice.5]
presented, and what is relevant and admissible.2][The judge will [Overall, the judge’s impartiality, and legal expertise are essential in
also act to ensure both the prosecution and defence have an equal ensuring justice is served in the criminal justice system. However, it is
opportunity to present their case, Aayush is given a fair trial, and also important to recognise and address the limitations in the judge’s
justice is served.3] ability to promote fairness.6]
I have identified one aspect of the role of the judge I have provided an introduction to summarise my answer
in a criminal case.1 to the question.1
I have provided information about my chosen role of the I have provided one way a judge promotes the
judge in a criminal case.2 achievement of fairness in a criminal case.2
I have identified a second aspect of the role of the judge I have provided a second way a judge promotes the
in a criminal case.3 achievement of fairness in a criminal case.3
I have linked my answer to the scenario where appropriate. I have provided one way a judge limits the achievement
of fairness in a criminal case.4
11. [A judge is the umpire of a courtroom who oversees all personnel, I have provided a second way a judge limits the
and evidence, whilst upholding rules and procedure.1][A magistrate achievement of fairness in a criminal case.5
performs the same roles as a judge, but only in the Magistrates’
Court.2][One key difference between a magistrate and a judge is that I have provided a conclusion to my response that links
magistrates hear and determine summary offences, such as traffic back to the question.6
offences. Contrary to this, judges deal with more serious criminal
offences, such as homicide, as they have the expertise to do so and I have used paragraphs to organise my response.
reside in more superior courts.3]
I have used signposting in my response, such as ‘One way’
I have provided information about the role of the judge and ‘Another way’.
I have provided information about the role of the
magistrate in a criminal case.2 14. Strengths: I; II; V; VI
Limitations: III; IV; VII
I have provided one key difference between judges and
magistrates in a criminal case.3 15. [I agree with this statement to a moderate extent, because even
though judge’s have more experience and expertise than juries, juries
may be less subject to political bias and they represent a cross-section
‘One key difference’.
of the community.1]
I have used comparison words, such as ‘Contrary to this’, [Firstly, judges have extensive legal expertise and training, allowing
when distinguishing. them to interpret complex legal concepts and apply them correctly
to a criminal case.2][They are also familiar with legal precedents and
the principles of legal reasoning, which allows them to make justified
Extended response rulings that ensure a fair trial.3][However, as ordinary and randomly
selected individuals, jurors may not be equipped with these skills and
12. B; C their verdict may be incorrectly informed or lack consideration of key
legal principles.4]
13. [The role of the judge in a criminal case is crucial to achieving the
principle of fairness. However, there are limitations that hinder [Moreover, judges have experience in setting aside their personal
fairness from being achieved in all cases.1] beliefs so as to remain impartial and unbiased in their rulings. ] 5
[Jurors, on the other hand, are more likely to be influenced by personal

[One way a judge promotes the achievement of fairness is by prejudices and emotions, increasing the risk of an unfair verdict that is
informing the jury on the laws relevant to the case and providing
based on their biases as opposed to the facts of the case.6]
guidance on the facts and evidence that must be considered in their
deliberations. This promotes fairness as the jury is well-informed [However, there are also arguments against judges deciding verdicts. ] 7
and capable of reaching a just and fair verdict.2][Judges also uphold [One of the main criticisms is that judges are government-appointed
fairness by acting impartially towards both parties and conducting officials and may be subject to political pressure or biases. This can
the trial in a manner that is in accordance with the rules of evidence potentially compromise their impartiality and lead to unfair
and procedure.3] or unjust verdicts.8]
2E ANSWERS
[However, there are limitations in the judge’s ability to promote [Another limitation of judges deciding verdicts is that it limits the
fairness in a criminal case. Inherently, each person holds subconscious participation of ordinary citizens in the legal process. ][Juries are
9
biases and this may be reflected in a judge’s rulings, impacting the comprised of a cross-section of the community that represents a
achievement of a fair trial.4][Another way the achievement of fairness diverse range of views. The use of juries helps ensure the legal system
is limited by the judge is that they rely on the parties to present all is accountable to the people.10]
the evidence and present their case in the best light. If an accused
is self-represented and unable to adequately present their case, the
ANSWERS 519
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[In conclusion, whilst judges may have more legal expertise and I have provided information about my chosen way.2
experience in remaining impartial in their decisions, the use of juries
to determine verdicts is a valuable means of public participation I have provided an example from the Act and linked it to my
in the criminal legal system.11] chosen way the Jury Directions Act 2015 (Vic) ensures the
jury understands the concept of the standard of proof.3
to which I agree or disagree with the statement, and why.1 I have linked my answer to the stimulus material
where appropriate.
I have provided one strength of judges determining the
verdict in criminal cases.2
I have provided information about my chosen strength

of judges determining the verdict in criminal cases.3
2F T
he parties in a
I have provided one limitation of juries determining
criminal case
the verdict in criminal cases and linked it to my chosen
strength of judges determining the verdict.4 Check your understanding
I have provided a second strength of judges determining 1. A. True. Explanation: The prosecution is the party that brings
the verdict in criminal cases.5 the criminal case to court, whilst the accused is the party who
is charged with a criminal offence.
I have provided a second limitation of juries determining
the verdict in criminal cases and linked it to my chosen 2. B. Explanation: Whilst the accused is not required to do so, they are
strength of judges deciding the verdict.6 able to call witnesses to present evidence at trial.
I have provided a topic sentence to introduce the main 3. B; C. Explanation: It is the role of the accused to determine whether
idea of my paragraph.7 they wish to plead guilty or not guilty and determine which, if any,
lawful defences they wish to raise.
I have provided one limitation of judges determining the
verdict in criminal cases.8 4. Where a witness is questioned by the party who called them to give
evidence, this is referred to as examination-in-chief.
I have provided a second limitation of judges determining
5. A; B; C. Explanation: The prosecution is not allowed to speak
the verdict in criminal cases.9
to members of the jury outside of presenting evidence to them
I have provided one strength of juries determining the in the courtroom.
verdict in criminal cases and linked it to my chosen
6. Strengths: I; III
limitation of judges determining the verdict.10
Limitations: II; IV
7. A. True. Explanation: The role of the prosecution is to convince the
jury the accused is guilty beyond reasonable doubt. Alternatively,
the accused only has to place doubt in the jurors’ minds, rather than
prove their innocence beyond reasonable doubt.
I have used signposting in my response, such as ‘Firstly’
and ‘Another limitation’. Preparing for exams
I have used connecting words, such as ‘However’ Standard exam-style
and ‘Moreover’.
8. [One role of the prosecution is to present evidence at trial to
convince the jury the accused is guilty beyond reasonable doubt.1]
Linking to previous learning [One role of the accused is to enter into a plea of ‘guilty’ or ‘not
guilty’ to the charges against them.2]
16. [The Jury Directions Act 2015 (Vic) is designed to ensure juries
understand the concept of the standard of proof of ‘beyond reasonable I have identified one role of the prosecution
doubt’ in criminal cases. This standard requires the prosecution to in a criminal case.1
prove its case to a high level of certainty, which is intended to protect
I have identified one role of the accused in a criminal case.2
the rights of the accused and prevent wrongful convictions.1][Section
63 of the Act provides that the trial judge must explain the meaning
of the phrase ’proof beyond reasonable doubt’ to the jury. Section
64 then sets out several ways in which the judge may explain this
concept, ensuring the jury clearly understands the standard of proof.2] 9. [One role of Aki in his criminal case is to present evidence and
2F ANSWERS
[The judge may explain that reasonable doubt is not an imaginary decide which witnesses to call, such as the witness Aki believes will
or fanciful doubt or an unrealistic possibility, but rather a doubt that support his case.1][Whilst Aki, as the accused, is not required to
a reasonable person might have, based on the evidence presented present evidence, as he does not have the burden of proof, he may
in court.3] choose to do so, such as by calling on a witness.2][This will assist in
disproving the prosecution’s case as he would be providing evidence or
I have identified one way the Jury Directions Act 2015 (Vic) questioning witnesses that contradict the prosecution’s argument.3]
ensures the jury understands the concept of the standard
of proof.1
520 ANSWERS
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I have identified one role of Aki in his criminal case.1 I have provided one limitation of my chosen role of the
prosecution in Callum’s criminal case.3
it to my chosen role of the accused.2 I have provided an example from the scenario and linked
it to the role of the prosecution in Callum’s criminal case.4
I have provided information about my chosen role
of the accused.3 I have identified one role of the accused in Callum’s
criminal case.5
I have provided one limitation of my chosen role of the
accused in Callum’s criminal case.6
10. [One role of the prosecution is to present evidence at trial to
convince the jury the accused is guilty beyond reasonable doubt.1] I have provided an example from the scenario and linked
[This role achieves the principle of fairness as it means the accused it to the role of the accused in Callum’s criminal case.7
is not required to prove their innocence beyond reasonable doubt,
as they are not the party bringing the charge.2][Alternatively, one
role of the accused is to decide whether to use a legal representative
when presenting their case.3][This achieves the principle of fairness
as the law is highly complex and therefore, the decision to use legal
I have used connecting words, such as ‘Therefore’ and
representation can ensure a just outcome to the case.4] ‘On the other hand’.
I have identified one role of the prosecution

I have provided one way my chosen role achieves the
principle of fairness.2 13. Strengths: II; IV
Limitations: I; III
I have identified one role of the accused in a criminal case.3
14. [The role of the parties and the judge in a criminal case upholds the
I have provided one way my chosen role achieves the principle of equality to a large extent, subject to some limitations.1]
principle of fairness.4
[Firstly, both the prosecution and accused have an equal opportunity
to present their case, as both parties can present evidence and call
upon witnesses.2][However, a self-represented accused may be at a
I have used connecting words, such as ‘Alternatively’. disadvantage to the prosecution as a result of not understanding court
processes and being unable to present all relevant evidence to prove
their case, therefore limiting equality.3]
Extended response [Alternatively, judges have a role in ensuring rules of evidence

and procedure apply equally to both parties during a criminal trial,
11. A; C; D achieving the principle of equality as neither party is disadvantaged.4]
[Although, whilst judges are impartial judicial officers, they are
12. [The prosecution and accused have a broad range of roles in still subject to personal bias and therefore, may unconsciously
presenting and proving a criminal case.1] discriminate against certain parties, hindering equality.5]
[One role of the prosecution is to determine which witnesses to
call upon for evidence during Callum’s trial. This may include calling I have provided an introduction to summarise the extent
to which the role of the parties and the judge in a criminal
witnesses to prove that Callum caused the collision with Lorenzo.2]
case upholds the principle of equality.1
[However, the prosecution must call all relevant witnesses to assist
in the emergence of the full truth, and not just witnesses that will help
I have provided one strength of the role of the parties
secure a guilty verdict at all costs.3][Therefore, if there is a witness that in upholding the principle of equality.2
claims Callum did not cause the collision with Lorenzo, the prosecution
must call this witness even though their evidence may lead a jury to I have provided one limitation of the role of the parties
have doubts about the guilt of the accused.4] in upholding the principle of equality.3
[On the other hand, one role of Callum as the accused is to present I have provided one strength of the role of the judge
evidence and call upon any witnesses that help create reasonable
in upholding the principle of equality.4
doubt as to his guilt in the jurors’ minds. As Callum believes he has a
witness to support his innocence in the collision with Lorenzo, he may I have provided one limitation of the role of the judge
choose to question this witness to disprove the prosecution’s case.5] in upholding the principle of equality.5
[However, Callum is representing himself, as he cannot afford legal
representation, therefore, he may not question the witness properly, I have used paragraphs to organise my response.
2F ANSWERS
potentially damaging his case.6][This is because Callum is unsure

about legal processes and procedures, particularly in relation to the I have used signposting in my response, such as ‘Firstly’.
best way to question his witness.7]
I have provided an introduction to my response.1 and ‘Alternatively’.
I have identified one role of the prosecution

in Callum’s criminal case.2
ANSWERS 521
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2G L egal practitioners case in court or to understand the complex criminal proceedings that
occur.1][Solicitors and barristers gather evidence, research laws, craft
in a criminal case arguments, and question witnesses on behalf of their client, removing
any pressures associated with an accused presenting their own
arguments in court.2]
I have provided one reason why an accused person may
1. B; C. Explanation: The judge and/or jury decide on the accused’s seek legal representation in a criminal case.1
guilt and legal practitioners have no say in determining this guilt.
Furthermore, barristers are legal professionals with experience in the I have provided information about my chosen reason.2
legal field and will, therefore, have a strong understanding of possible
defences to raise in a criminal case. I have used signposting in my response, such as
‘One reason’.
2. A. Explanation: The rule of law aims to ensure everyone is equal
before the law. Therefore, judges cannot favour a lawyer and provide
their clients with ‘not guilty’ verdicts due to personal connections or 10. [One reason why Cindy may require legal practitioners if her case goes
relationships as this goes against the impartiality promoted by the rule to trial would be to uphold the rule of law.1][The rule of law requires
of law. accused persons to receive a fair and impartial trial. By receiving legal
advice or representation in a trial, fairer outcomes can be promoted
3. B. False. Explanation: Under s 197 of the Criminal Procedure Act as Cindy can ensure her case is represented in the best possible light
2009 (Vic) a trial may be adjourned so an accused can gain legal through her lawyer’s articulation of relevant evidence and appropriate
representation from VLA. However, if the accused voluntarily chooses legal principles.2][Furthermore, by gaining legal advice, the law can
not to hire lawyers despite having the financial means to do so, the be presented to Cindy in a more certain and clear manner as legal
court is under no obligation to adjourn the trial for the accused. practitioners are experts in law, therefore allowing Cindy to better
understand her rights, such as her right to remain silent when being
4. A legal practitioner may help an accused by providing objectivity,
questioned by the police.3]
as they have a greater ability to look at the facts of the case from an
impartial point of view, allowing them to identify weaker or stronger
I have provided one reason why Cindy may need
points in the prosecution’s evidence. This can enable a stronger
a legal practitioner.1
defence case to be built.
Limitations: II; IV
6. If an accused engages legal practitioners, this ensures equal legal it to the need for legal practitioners.3
representation for both the prosecution, which will likely have
a team of expert legal practitioners, and the accused.
‘One reason’.
7. B. False. Explanation: In a criminal case, there is a significant need
for legal practitioners in order for accused persons to receive a fair I have used connecting words, such as ‘Furthermore’.
trial. Parties who represent themselves are often disadvantaged due
to their lack of legal knowledge.
Extended response
Preparing for exams 11. Upheld: I; III
Limited: II; IV
Standard exam-style
12. [Fairness is often achieved to a minimal extent when the accused does
8. [One reason legal practitioners may be needed in a criminal case not have legal representation, as legal practitioners help an accused
is to question witnesses, such as the victim of the crime, on behalf
present their case in the best possible light.1]
of the accused. This can ensure procedural rules of questioning
witnesses are complied with and potential victim traumatisation by an [Firstly, legal practitioners can uphold the principle of fairness by
accused’s personal questioning is avoided.1][Another reason why legal giving advice to their clients that allows them to participate in criminal
practitioners are needed in a criminal case is to present their client’s proceedings on an informed basis.2][By providing accused persons
case in the best possible light, by making arguments based on points with legal information, legal practitioners can assist accused persons
of law and legal research.2] to better understand the pre-trial and court processes, leading to fairer
outcomes as they can participate in certain aspects of the criminal
I have provided one reason why legal practitioners are justice process on a more informed basis.3]
needed in a criminal case.1
[Another way legal practitioners achieve fairness is by remaining
I have provided a second reason why legal practitioners objective when looking at the facts of an accused’s case. Therefore,
are needed in a criminal case.2 they can make impartial decisions on behalf of the accused, such
as rejecting unjust plea negotiations or raising certain defences they
2G ANSWERS
I have used signposting in my response, such as believe will be successful, to ensure a fair outcome is reached.4]
‘One reason’ and ‘Another reason’.
[However, if the accused does not have legal representation they may
not receive a fair trial. This is because a self-represented person may
struggle to participate in criminal proceedings without receiving legal
9. [One reason why an accused person may seek assistance from a legal
practitioner is due to a lack of legal expertise. An everyday person advice. For example, they may not understand how to appeal their
would likely not possess the legal knowledge to defend their own conviction or sentence after a guilty verdict has been decided,
limiting fairness.5]
522 ANSWERS
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[Furthermore, where both parties have legal representation, this can

still be unfair. If representation for the accused is unequal, such as
2H T
he impact of costs
having a less experienced legal practitioner, this may lead to an unfair
outcome, as the accused cannot prepare and present a case of equal
and time – criminal case
quality to that of the expert legal practitioners of the prosecution.6]
[Overall, if an accused person does not have legal representation, they
are less likely to receive a fair trial. Legal practitioners aim to ensure 1. B. False. Explanation: Criminal cases can be impacted by costs and
their client’s case is presented in the best possible light with legal delays, just as civil cases are.
expertise to validate their arguments.7]
2. C. Explanation: Barrister fees, solicitor fees, and court filing fees are
I have provided an introduction to summarise my answer all likely to be incurred by an accused when trying to assert their
to the question.1 innocence in a criminal case. However, an accused does not have
to pay any arrest warrant fee.
I have provided one way in which legal representation
contributes to the achievement of fairness.2 3. An offender may incur costs when ordered to pay the victim a sum
of money due to the injury caused or the loss they incurred from the
I have provided information about my chosen way property being damaged, stolen, or lost.
in which legal representation contributes to the
achievement of fairness.3 4. A. Explanation: An accused person who is found guilty in a lower court
may not want to appeal this decision in a higher court, even if they
I have provided a second way in which legal representation believe they are innocent, on the basis that appealing the decision
contributes to the achievement of fairness.4 will cause them to incur significant costs, therefore limiting access
to justice.
I have provided one limitation of legal representation
contributing to the achievement of fairness.5 5. Knowing about delays in the justice system may prevent victims from
reporting a suspected crime to police as they may feel it’s pointless
I have provided a second limitation of legal representation to do so, limiting access. Delays may also cause some witnesses to
contributing to the achievement of fairness.6 produce unreliable or false evidence as their memory fades over time
and they can no longer recall the exact events. This limits fairness as
I have provided a conclusion to my response that links witnesses may be unable to provide impartial and truthful information.
6. A; B; D. Explanation: A victim of crime may be adversely impacted
I have used paragraphs to organise my response. by delays in the criminal justice system, as such delays could result
in witnesses forgetting key details of the events, stress accumulating
I have used signposting in my response, such as ‘Firstly’ in the victim, and a victim remaining fearful if the accused is not
and ‘Another way’. on remand.
I have used connecting words, such as ‘However’ 7. A; C; D. Explanation: Alternative methods of dispute resolution are
and ‘Furthermore’. used in civil disputes where defendants and plaintiffs can discuss their
issues. This would not occur in criminal cases and is thus, not a source
of delay.
Linking to previous learning 8. B. False. Explanation: Although the impacts of time and costs are
significant, the principles of justice are still achieved through some
13. [Legal practitioners, such as solicitors and barristers, can be hired by mechanisms of the criminal justice system, such as Victoria Legal Aid
an accused to provide advice or representation throughout criminal and the court hierarchy.
proceedings, such as police questioning and a trial. Therefore, legal
practitioners can advise accused persons about their rights under
Victorian law.1][For example, a solicitor could sit with an accused as Preparing for exams
they are being questioned in police interviews and inform them of their
Standard exam-style
right to silence, as an accused person may be unaware of this right’s
existence prior to being informed by a skilled lawyer.2] 9. [One impact that costs have on a criminal trial is that they may
cause an accused person to avoid appealing a decision made in
I have provided one way legal practitioners uphold the a lower court, due to the costs associated with filing fees and legal
rights of an accused.1
representation for an appeal.1][As a result, accused people of a lower
socioeconomic status may accept a guilty verdict delivered by the
I have provided information about my chosen way legal
court, even if they are innocent, as the expense of fighting to prove
practitioners uphold the rights of an accused.2
their innocence is high.2]
I have identified one impact of costs during a criminal trial.1

2H ANSWERS
I have provided information about my chosen impact.2

‘One impact’.
I have used connecting words, such as ‘As a result’.
ANSWERS 523
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10. [Delays in the criminal justice system, particularly in the Magistrates’ [Finally, the introduction of the Cyber Court would reduce some
Court, may cause a victim to avoid seeking justice and reporting a of the delays experienced by the Magistrates’ Court as the burden
crime.1][Therefore, the principle of access is limited as victims may not of cybercrimes would be removed from the court. Therefore, access
attempt to access justice due to being aware that it can take months to justice would be improved for victims of other summary offences
or even years for the accused to be held accountable by the courts.2] and accused persons.5]
I have provided one impact of time in a criminal trial.1 I have provided an introduction to my response.1
I have provided information on how my chosen impact I have provided one impact of cybercrimes on the
limits the achievement of the principle of access.2 achievement of access.2
I have used connecting words, such as ‘Therefore’. I have provided a second impact of cybercrimes on the
11. [One impact that time may have on the principle of fairness is that, I have provided a third impact of cybercrimes on the
if delays occur, Previn’s trial may not be fair as key eyewitnesses, the achievement of access.4
two elderly people, may forget the events they saw transpire.1]
I have provided a fourth impact of cybercrimes on the
[The trial of Previn’s attacker is set to occur in 18 months, meaning
it is likely that the witnesses may forget certain events by the time achievement of access.5
they are called to the witness stand, or they may have passed away.2]
[This limits the principle of fairness as it could result in false or and ‘Secondly’.
unreliable statements being taken as evidence, impacting the fairness
of the decided verdict. For example, the judge may be unable to I have used connecting words, such as ‘Therefore’.
determine whether Previn was attacked beyond reasonable doubt
if witnesses cannot remember the exact facts of what they saw,
causing the attacker to be declared not guilty despite their crimes.3] 14. Strengths: I; III
Limitations: II; IV; V
I have identified one impact of time on the achievement
of fairness.1 15. [One factor that could affect the ability of the criminal justice
system to achieve fairness is the costs involved in a criminal case.1]
them to time and the achievement of fairness.2
[One way the principle of fairness is limited in criminal cases as
a result of costs is that if an accused person is of lower socioeconomic
status, they may not be able to afford representation, leading to an
I have provided further information about my chosen
impact on time and the achievement of fairness.3 unfair trial.2][There are significant expenses which accompany a
criminal case for an accused person, including solicitor and barrister
I have used signposting in my response, such as fees for these individuals to prepare the case, review the evidence,
‘One impact’. and represent the accused in the courtrooms, as well as witness
fees.3][Furthermore, another way the principle of fairness is limited is
that, even if an accused does pay for legal representation, the quality
of legal representation will likely depend on how much the accused
Extended response is willing, or able, to pay. Therefore, if the accused can only afford a
12. A; B; D relatively cheap and inexperienced lawyer, the facts of the case may
not be presented in the best light for the accused, which is unfair on
13. [Currently, the number of cybercrime cases that need to be resolved the poorly represented party.4][Additionally, the principle of fairness is
in the Magistrates’ Court is placing a great burden on this court, undermined by the cost of a criminal case, as an accused person may
indicated by the 12-month delay it is now facing due to a backlog of plead guilty to a criminal offence just because they are unable to afford
cases. This is limiting access. However, the presence of the Cyber the costs associated with defending a criminal case in the courts.5]
Court could counteract this issue.1]
[Despite the ways in which the costs of a criminal case can limit
[Firstly, the principle of access is currently impeded by the frequency the principle of fairness, there are mechanisms in place to ensure a
of cybercrime hearings in Victoria. The 12 months of delays that fair trial can still be received by an accused. Firstly, VLA can provide
exist due to cybercrimes have negative impacts on accused persons, duty lawyers or grant accused persons of low socioeconomic
such as causing stress for the accused when awaiting trial. Accused status, promoting fairness by ensuring these individuals still have
persons are forced to retain legal representation for an extended representation in a criminal case.6][Secondly, juries are independent
period of time as a result of these delays, limiting access to justice due decision-makers who may be used in serious criminal cases. For
to the cost, which may be inaccessible for accused persons of a lower Commonwealth indictable offences, all accused persons have the right
socioeconomic status.2] to trial by jury, and the cost of this is borne by the Commonwealth,
therefore an accused person can have a trial by jury regardless of their
[Secondly, a victim’s access to justice may also be limited by the financial situation, promoting fairness.7]
current system. This is because they may see the lengthy delays
2H ANSWERS
regarding cybercrime and therefore, decide against reporting the

crimes they have suffered. Therefore, this limits their access to
obtaining justice for the damages the cybercrime inflicted.3] I have provided one way costs could limit the ability of the
[Thirdly, it is said that cybercrime cases typically require oral criminal justice system to achieve fairness.2
evidence from witnesses, however, delays may cause witnesses’
evidence to distort overtime, limiting both the accused person I have provided further information about my chosen way
costs could limit the ability of the criminal justice system
and the victim’s access to a fair trial.4]
to achieve fairness.3
524 ANSWERS
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I have provided a second way costs could limit the ability 2I T

he impact of cultural
of the criminal justice system to achieve fairness.4
I have provided a third way costs could limit the ability

differences – criminal cases
of the criminal justice system to achieve fairness.5
I have provided one way costs could strengthen the ability
of the criminal justice system to achieve fairness.6 1. B. False. Explanation: Cultural differences can have an impact on the
ability of the criminal justice system to achieve the principles of justice.
I have provided a second way costs could strengthen the
2. A; B; C. Explanation: First Nations individuals may experience
ability of the criminal justice system to achieve fairness.7
differences in the criminal justice system due to racial prejudices,
I have used signposting in my response, such as ‘One way’ overrepresentation in prison, and cultural differences. The sentencing
and ‘another way’. in the Koori Court is no less or more severe.
3. A. Explanation: If a person is unaware of their rights or the systems

in place to protect their rights, access can be limited as a migrant or
refugee may be unable to understand their rights and pursue justice.
4. Fairness: III; IV
Linking to previous learning Equality: I; II
16. [Plea negotiations, which are discussions between the prosecution 5. A; B; D. Explanation: The accused does not have to pay for interpreter
and the accused, in which the accused agrees to plead guilty to a services. Rather, the court is responsible for organising and paying
lesser charge, or fewer charges altogether, may be able to reduce for this.
the negative impact of time on a criminal case.1][By having an
6. A. True. Explanation: All three of the principles of justice are limited to
accused plead guilty to a charge, the trial aspect of a criminal case
some extent for individuals interacting with the criminal justice system
does not have to occur, meaning that the time-consuming elements
who are culturally or linguistically diverse.
of a trial, such as jury empanelment, judges directions, and hung
jury deliberations, can be avoided.2]
Preparing for exams
I have provided one way plea negotiation impacts time
during a criminal case.1 Standard exam-style
I have provided information about my chosen way.2 7. [One way cultural differences can limit the principle of equality
in a criminal case is that individuals from a non-English speaking
background may be less able to present evidence as either a victim
17. [One role of Victoria Legal Aid (VLA) in relation to costs in a criminal or an accused person.1][As a result, this undermines the opportunity
case is that they may be able to provide an accused person with for all individuals to be seen equally before the eyes of the law and,
a duty lawyer of a grant if they meet certain requirements, allowing consequently, individuals may be more likely to be convicted
the accused to gain legal representation without incurring significant of a crime or unable to seek justice if they cannot present their
costs.1][Attaining legal representation and having the representation case to the same extent as the other party.2]
complete all the relevant work for a trial, such as getting a solicitor
to prepare for the trial, reviewing the prosecution’s evidence, and I have identified one way cultural differences can limit the
plan which witnesses will be called if the matter goes to trial, will be principle of equality from being achieved in a criminal case.1
a significant expense for the accused.2][Therefore, if an accused can
satisfy the relevant means test and income test conducted by the VLA, I have provided information about my chosen limitation.2
they may qualify for a grant for legal assistance which will mean some
I have used signposting in my response, such as ‘One way’.
or all of their legal expenses will be covered.3]

I have provided one role of Victorian Legal Aid in relation
to costs in a criminal case.1
I have provided information about my chosen role.2

8. [One way in which cultural differences impact the principle of access
in a criminal case is through migrants or refugees who are unfamiliar
with the legal system, their rights, and the services available to them
I have provided further information about my chosen role.3
as either victims or an accused.1][Victoria Legal Aid, for example,
may help an accused person of a low socioeconomic status defend
themselves in a criminal case. However, if individuals from culturally
diverse backgrounds are unaware these services exist they may not
utilise them.2][This limits access to justice as cultural differences may,
therefore, cause an accused to be unable to access a just outcome.3]
2I ANSWERS
I have provided one way in which cultural differences

impact the principle of access in a criminal case.1
I have provided information about my chosen impact

on the principle of access.2
ANSWERS 525
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Victoria Legal Aid (VLA) can provide legal representation to accused

persons when they meet certain eligibility criteria, including First
impact on the principle of access.3
Nations and migrant accused persons, and promotes its resources
online in multiple languages, thus ensuring cultural differences do not
significantly impact equality.7][Furthermore, interpreters are available
I have used connecting words, such as ‘However’. to all accused persons in the courts, and the courts are required to pay
for such services instead of an accused, thus promoting equality.8]
9. [Firstly, the interpreter services of the Victorian courts can enhance [Overall, although cultural differences may limit equality,
mechanisms are in place to continue to uplift individuals in the
the ability of the criminal justice system to achieve fairness by
criminal justice system.9]
ensuring non-English speaking accused persons do not misunderstand
the meaning of the questions being asked to them by police or
courts.1][Considering Ahmed has limited English-speaking skills,
as he mainly speaks Arabic, he may misunderstand the questions
I have provided one way equality is limited for culturally
being asked by police if asked without an interpreter.2][This may diverse people in the Victorian criminal justice system.2
lead to an unfair outcome, as he could then answer the questions
incorrectly or unintentionally provide false testimonies.3][Furthermore, I have provided information about my chosen way.3
an interpreter may be useful to interpret Ahmed’s answers to certain
questions so that there is a low possibility that Ahmed will accidentally I have provided a second way equality is limited for
self-incriminate and enter a guilty plea without understanding the culturally diverse people in the Victorian criminal
nature of the situation.4] justice system.4
I have identified one way the interpreter services of the I have provided information about my chosen way.5
Victorian courts could enhance the ability of the criminal
justice system to achieve fairness.1 I have provided a topic sentence to introduce the main
idea of my paragraph.6
it to interpreter services and the achievement of fairness.2 I have provided one way equality is upheld for culturally
diverse people in the Victorian criminal justice system.7
I have provided information about my chosen way the
interpreter services of the Victorian courts could enhance I have provided a second way equality is upheld for
the ability of the criminal justice system to achieve fairness.3 culturally diverse people in the Victorian criminal
justice system.8
I have identified a second way the interpreter services
of the Victorian courts could enhance the ability of the I have provided a conclusion to my response that links
criminal justice system to achieve fairness.4 back to the question.9
I have use signposting in my response, such as ‘Firstly’. I have used paragraphs to organise my response.
I have used connecting words, such as ‘Furthermore’. I have used signposting in my response, such as ‘Firstly’
and ‘Secondly’.

Extended response and ‘However’.
10. Strengths: II; IV

Limitations: I; III 12. Strengths: I; II; III
Limitations: IV
11. [Cultural differences are one factor that may impact the ability
of the criminal justice system to achieve the principle of equality, 13. [Firstly, the use of the Koori Courts can increase equality in the
and can disproportionately affect culturally diverse populations Victorian criminal justice system as it allows culturally-relevant
when engaging with the criminal justice system.1] sentencing practices to be used when determining the appropriate
sentence for an offender, therefore uplifting First Nations peoples to
[Firstly, individuals from migrant or refugee backgrounds may be achieve equality before the law.1][Furthermore, the Koori Court has
unable to speak English proficiently, therefore limiting their ability
proven to be an effective mechanism in reducing rates of recidivism.
to answer questions at the stand as either an accused person or a
Therefore, equality can be improved as the over-incarceration of
victim.2][This can limit equality as it undermines all people being seen
First Nations peoples may decline.2][A third way the Koori Court can
equally in the criminal justice system, since those who cannot present
improve equality is that it involves Community Elders or Respected
their evidence strongly, due to language barriers, may be more likely
Persons having open discussions with offenders. Therefore, language
to be wrongly convicted.3][Secondly, equality is further limited due to
barriers are reduced as these discussions can occur using Aboriginal
the high incarceration rates among First Nations peoples, which point
English, promoting equality as the motives and remorse of the
towards the existence of inherent prejudices within the Australian
2I ANSWERS
offender will likely be better understood and reflect more adequate

criminal justice system.4][Therefore, structural and systemic racism
sentencing.3]
alongside biases among members of the justice system may lead to
Aboriginal and/or Torres Strait Islander people being issued harsher [However, Community Elders and Respected Persons, which are
penalties or being found guilty falsely on the basis of their race.5] required for the Court to function, may be unaware of the Court and
their ability to participate. This limits the Court’s effectiveness as the
[However, certain mechanisms in Australia aim to uphold equality participation of these individuals is essential and the court would not
and counterbalance the impact of cultural difference.6][For example, have continued success if the number of Elders and Respected Persons
available is insufficient.4]
526 ANSWERS
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[Ultimately, the Koori Court is an effective mechanism in promoting

equality in the Victorian criminal justice system, despite certain
limitations.5]
I have provided one way the Koori Court can enhance the
ability of the Victorian criminal justice system to achieve
the principle of equality.1
I have provided a second way the Koori Court can

enhance the ability of the Victorian criminal justice
system to achieve the principle of equality.2
I have provided a third way the Koori Court can enhance the
ability of the Victorian criminal justice system to achieve
the principle of equality.3
I have provided one way the Koori Court is limited in its

ability to achieve the principle of equality in the Victorian


and ‘A third way’.

14. [Considering Arjun’s financial struggles, the costs associated with

defending himself in this criminal case may impact Arjun significantly,
limiting his access to justice.1][This is because the expense of legal
fees, including paying a barrister and/or solicitor, is high. Therefore,
due to these costs, Arjun may choose to self-represent, which could
limit his ability to defend himself successfully and ensure he is not
falsely found guilty if he did not commit a crime, given his minimal
English.2][Secondly, as a migrant, cultural differences may also have
an impact on Arjun when trying to defend himself.3][His limited
ability to speak English could cause him to be unable to understand
Australian court procedures or be able to articulate his evidence
at trial.4]
I have identified one impact of costs on Arjun’s

criminal case.1
I have provided information about costs in a criminal case.2
I have identified one impact of cultural differences

on Arjun’s criminal case.3
I have provided information about cultural differences

I have used signposting in my response, such as ‘Secondly’.

2I ANSWERS
ANSWERS 527
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3A Purposes of sanctions 10. [Denunciation is a purpose of sanctions whereby the court publicly
condemns or criticises the offender’s criminal behaviour.1][The court
denounces the offender’s actions to highlight the extent to which the
Check your understanding offender has violated the moral and ethical standards
of society. The judge expresses denunciation in their final statements
1. A sanction is a penalty imposed by the court on an offender when at the end of a hearing or trial.2][The statement made by the
they are found guilty of a crime. sentencing judge in this instance clearly exemplifies the extent
to which they denounce the offender’s actions, especially through
2. B. Explanation: Rehabilitation, deterrence, and punishment are all
purposes of sanctions. their use of the words ‘heinous’, ‘extreme disdain’, and ‘disgraceful’.3]
3. B. False. Explanation: Protection seeks to remove dangerous offenders I have defined denunciation.1
from the community to protect victims and society as a whole.
I have provided information about denunciation
4. The purpose of rehabilitation is to sentence criminal offenders as a purpose of sanctions.2
in a manner that aims to break the cycle of criminal behaviour.
On the other hand, the purpose of punishment is to adequately I have provided examples from the statement and linked
penalise an offender and ensure they are held accountable for them to denunciation.3
their crimes and their impact on the victims and society as a whole.
5. A; B. Explanation: Punishment is achieved if the sanction adequately 11. [Rehabilitation should be a key consideration in Ezra’s sanctioning
punishes an offender and reflects the severity of the crime, while as he has been convicted of the same offences multiple times. ] 1
also delivering justice to the victims and society as a whole. [Therefore, in order to break the cycle of offending, the judge should
consider a sanction that would address the underlying causes of his
6. C. Explanation: Specific deterrence refers to the ability of a sanction actions, such as alcohol abuse.2][If Ezra is subjected to attending drug
to discourage an offender from reoffending and committing a similar and alcohol rehabilitation programs, this may aid in resolving the root
offence to avoid receiving another sanction that may be similar
cause of his offending and discourage him from reoffending.3]
to the original sanction.
I have identified one reason why rehabilitation should
7. A. True. Explanation: In their sentencing statement, the judge may
be considered when sanctioning Ezra.1
seek to condemn and criticise an offender’s actions to highlight how
they have breached the social code of behaviour and ethics.
I have provided information about rehabilitation as
8. B. False. Explanation: Some sanctions are more likely to achieve a consideration in sentencing Ezra.2
specific purposes more than others. For example, fines can punish
I have provided further information about rehabilitation
the offender however protection is unlikely to be achieved by a fine.
as a consideration in sentencing Ezra.3
Preparing for exams I have used connecting words, such as ‘Therefore’.
Standard exam-style
12. [No, I do not agree with this statement as punishment is not
9. [General deterrence is a type of deterrence in which individuals intended to be achieved by victims and their families personally.1]
other than the offender, such as the general public, are discouraged [If an offender is found guilty, the judge should impose a sanction
from committing offences because they wish to avoid receiving that reflects the nature of and severity of the offence committed,
the same sanction as offenders.1][On the other hand, specific while also seeking retribution on behalf of the victim and the
deterrence a type of deterrence in which the offender themselves is community.2][Therefore, punishment is achieved through the
discouraged from reoffending and committing offences of a similar imposition of an adequate sanction, not by victims seeking revenge
nature.2][Therefore, general deterrence seeks to deter the wider themselves.3][If victims or their families decide to take it upon
community from offending to avoid a possible sanction, whereas themselves to seek ‘justice’ this could be dangerous for both parties
specific deterrence aims to discourage an individual offender from and delay the delivery of justice through the criminal justice system.4]
reoffending through the imposition of a sanction.3]
I have provided an introduction to state the extent to which
I have defined general deterrence.1 I agree or disagree, and a brief reason for my answer.1
I have defined specific deterrence.2 I have provided one reason why I agree or disagree with
the statement.2
I have provided one key difference between general and
specific deterrence.3 I have provided information about my chosen reason.3
I have used comparison words, such as ‘On the other hand’ I have provided further information about my
and ‘whereas’, when distinguishing. chosen reason.4
3A ANSWERS
528 ANSWERS
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13. [One purpose of sanctions that has been considered in Melanie’s I have provided an introduction to my response.1
sentencing is rehabilitation. ][The judge has stated that the sanction
1
should address ‘Melanie’s serious mental health conditions’. I have provided one purpose of sanctions achieved
Therefore, it is likely that her sentence will include some form through Gwenyth’s sentence.2
of rehabilitation, such as therapy or counselling, to address the
underlying causes of her reoffending.2][Another purpose of sanctions I have provided a second purpose of sanctions achieved
that has been considered in her sentencing is the need to protect the through Gwenyth’s sentence.3
community.3][Given that Melanie has been previously convicted of
multiple dangerous driving offences, and is now being convicted of I have provided a third purpose of sanctions achieved
culpable driving causing death, it is important to make sure the safety through Gwenyth’s sentence.4
of the community and road users is protected. Thus, the sentencing
I have provided a fourth purpose of sanctions achieved
judge may consider disqualifying her license for a long period of time,
through Gwenyth’s sentence.5
alongside other sanctions, to ensure the roads remain safe.4]
I have provided a fifth purpose of sanctions achieved
I have identified one purpose of sanctions that has been
through Gwenyth’s sentence.6
considered in Melanie’s sentencing.1
I have provided information about my chosen purpose.2
I have identified a second purpose of sanctions that has I have used signposting in my response, such as ‘Firstly’
been considered in Melanie’s sentencing.3 and ‘Finally’.
I have provided information about my chosen purpose.4 I have used connecting words, such as ‘Moreover’

‘One purpose’ and ‘Another purpose’. Linking to previous learning
I have used connecting words, such as ‘Thus’. 16. [Plea negotiations can influence whether an offender is adequately
punished, as a plea deal may be reached which can see the offender
plead guilty in exchange for a lesser sentence.1][Although the plea deal
must still adequately reflect the severity of the crimes committed, the
Extended response
victim and wider society may feel that the offender has been ‘let off’
14. B; C; E and not appropriately punished for their offending.2]
15. [Gwenyth’s 18-year prison sentence seeks to address multiple I have provided one way plea negotiations can impact the
purposes of sanctions and adequately reflects the nature of the achievement of punishment.1
crimes committed.1]
I have provided information about my chosen way plea
[Firstly, Gwenyth’s drug and alcohol issues may be addressed negotiations can impact the achievement of punishment.2
and treated through rehabilitation programs. As the judge has
recommended that she partake in rehabilitation programs while I have used connecting words, such as ‘Although’.
in prison, it is possible that these underlying factors contributing
to her offending will be resolved, decreasing the likelihood
of reoffending upon release.2]
[Moreover, Gwenyth may be specifically deterred from reoffending 3B Types of sanctions

to avoid receiving a similar sanction in future, such as the lengthy
sentence imposed by the judge for the current offences.3] Check your understanding
[General deterrence could potentially occur in this case if individuals 1. A. True. Explanation: Analysing whether a sanction has achieved
are aware of the sentences associated with drug trafficking and money
its purposes will assist the court in determining whether imposing
laundering, although the nature of the crimes themselves would most
this particular sanction is appropriate.
likely deter ordinary citizens from committing the same offences.4]
2. B. Explanation: A judge or magistrate may order a CCO if the offence
[Furthermore, during sentencing, the judge also denounced Gwenyth is punishable by five penalty units or more, a fine is not appropriate,
by reprimanding her behaviour, underscoring that she has breached
and if the offender has agreed to a CCO.
the codes of acceptable and legal conduct within society.5]
[Finally, though it is not stated that Gwenyth was physically harming 3. If the court imposes imprisonment, the offender will be held
other individuals, her removal from society can protect victims of drug in custody for a given period of time. Alternatively, if the court
imposes a CCO, the offender can remain in the community.
3B ANSWERS
trafficking and disrupt money laundering schemes.6]
[Thus, all of the purposes of sanctions have been considered and 4. A. True. Explanation: Parole is the conditional early release
achieved by Gwenyth’s sentence to a certain degree. ] 7 of a prisoner after their minimum term of imprisonment is served
and often involves certain conditions or supervisions that must
be followed.
5. A. Explanation: Courts may impose more than one type of sanction

on an offender simultaneously.
ANSWERS 529
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6. B; D. Explanation: When imposing a fine, the courts consider the

offender’s ability to pay and whether the imposition of a fine will
I agree or disagree, and a brief reason for my answer.1
adequately punish or deter the offender.
7. A; B; C; F. Explanation: Imprisonment removes the offender from I have provided one reason why fines achieve the purpose
society, punishing them and protecting the community. Fines of punishment.2
require the offender to pay a sum of money to the state, which may
I have provided a second reason why fines achieve the
discourage further offending particularly where the offender cannot
purpose of punishment.3
afford to receive another fine.
I have provided one reason why fines achieve the purpose
Preparing for exams of deterrence.4
Standard exam-style I have provided a second reason why fines achieve the
purpose of deterrence.5
8. [One sanction that may be imposed on an offender is imprisonment,
a sanction that removes an offender from the community and places I have provided a conclusion to my response that links
them in a prison for a given period of time.1][When a court imposes a back to the question.6
prison term, it will usually provide a minimum period of imprisonment,
after which an offender can apply for parole.2] I have used paragraphs to organise my response.
I have identified and defined one sanction that may I have used signposting in my response, such as
be imposed on an offender.1 ‘one reason’ and ‘Another reason’.
I have provided information about my chosen sanction.2 I have used connecting words, such as ‘Firstly’
‘One sanction’.
12. A; B
13. [Imprisonment may be effective in protecting the community and

9. [The court has imposed a community correction order (CCO) deterring Elias in the short term, however, there may be negative
on Wayne, which is a non-custodial sanction that is served by the
implications after Elias is released from prison.1]
offender in the community with certain conditions attached.1][This is
evident as he is serving his sentence in the community and is required [Firstly, if Elias is sentenced to a term in prison, this will protect the
to complete 200 hours of community service and undertake medical community as he is removed from society and therefore, does not
treatment for his drug addiction.2] pose a significant risk to the welfare of the public or his victims.2]
[However, community protection in the long term may be limited as
I have identified and defined a community correction many prisoners, like Elias, who are released will reoffend. There are
order (CCO).1 various reasons for reoffending, including that underlying reasons
for offending were not addressed, such as mental health issues,
I have provided an example relevant to the scenario
or drug or alcohol addiction.3]
and linked it to community correction orders.2
[Moreover, sentencing Elias to a term of imprisonment will likely deter
him from reoffending out of fear he will receive a similar sentence,
particularly as the offence of culpable driving causing death carries a
Extended response
maximum of 20 years imprisonment.4][However, the rate of recidivism
10. A; C; E is high, as approximately 43.6% of those released from Victorian
prisons reoffend to such a serious extent that they are in prison again
11. [Fines achieve the purposes of punishment and deterrence to a large within two years. This suggests prison is not an effective specific
extent, as the offender is required to pay a sum of money to the state, deterrent for many offenders, such as Elias.5]
which drains their own financial resources.1]
[Therefore, whilst imprisonment may protect the community in the
[Firstly, one reason fines achieve punishment is because the offender short term, Elias may not be deterred from reoffending after his
must pay money to the state instead of using the amount to improve release from prison, negatively impacting the community.6]
their own living standards, therefore penalising the offender.2][Another
reason why fines adequately punish the offender is that the court can I have provided an introduction to summarise my answer
set the size of a fine based on an offender’s ability to pay it, meaning to the question.1
the court can try to ensure each offender feels punished in proportion
I have provided one reason why imprisonment achieves
to their personal or financial circumstances.3]
the purpose of protection.2
[Furthermore, fines may achieve specific deterrence as the economic
loss caused by a fine will likely discourage an offender from I have provided one limitation of imprisonment achieving
reoffending.4][Fines also achieve general deterrence as the economic the purpose of protection.3
3B ANSWERS
loss caused by a fine discourages other members of the community

from committing similar offences to avoid receiving a similar fine.5] I have provided one reason why imprisonment achieves
the purpose of specific deterrence.4
[Overall, fines achieve punishment and deterrence due to the drain
in financial resources experienced by the offender, reducing the I have provided one limitation of imprisonment achieving
likelihood of reoffending by the offender or the community.6] the purpose of specific deterrence.5
530 ANSWERS
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I have provided a conclusion to my response that links I have stated the extent to which I agree or disagree
back to the question.6 with the statement.1
I have linked my answer to the scenario where appropriate. I have provided one reason why imprisonment can
achieve the purpose of rehabilitation.2
I have used paragraphs to organise my response
I have provided one reason why imprisonment
I have used signposting in my response, such as ‘Firstly’. may be limited in its ability to achieve the purpose
of rehabilitation.3
and ‘Moreover’. I have provided a second reason why imprisonment
may be limited in its ability to achieve the purpose of
rehabilitation.4
Linking to previous learning I have linked my answer to the scenario where

appropriate.
14. a. [ One reason for the Victorian court hierarchy is appeals.
For example, if Toby is dissatisfied with the outcome of his case, I have used connecting words, such as ‘However’
he can seek to have the decision reviewed by a higher court, such and ‘As a result’.
as the Court of Appeal.1][Therefore, the court hierarchy allows
more superior courts to review the decisions of lower courts.
Although, this still requires Toby to have leave to appeal as it is
not an automatic right.2] 3C F
actors considered
I have identified one reason for the Victorian
Court Hierarchy.1
in sentencing
I have provided information about my Check your understanding
chosen reason.2
1. A. True. Explanation: The courts will consider both aggravating and
I have linked my answer to the scenario mitigating factors when deciding on an appropriate sentence for
where appropriate. an offender.
I have used signposting in my response, such as 2. B; C; D. Explanation: If a crime is premeditated, involves the use
‘One reason’. of a weapon, or is committed in front of a vulnerable person, these
are all aspects of a crime that increase the seriousness of the
I have used connecting words, such as ‘Therefore’. offence and are therefore considered aggravating factors.
3. If the offender committed a crime that was motivated by prejudice

b. [Toby was likely sentenced to a term of imprisonment, which toward, or hatred of a particular group, such as a religious or ethnic
is a sanction that requires the offender to be held in custody group, this will be an aggravating factor considered by the courts
for a given period of time, and it is the most severe penalty in sentencing.
a court can impose.1][This is because Toby was charged with
4. A. True. Explanation: A victim impact statement (VIS) may be an
manslaughter, which is punishable by level 2 imprisonment.2]
aggravating factor if the crime has had a significant negative impact
on the offender. Alternatively, a VIS can be a mitigating factor if the
I have identified and defined imprisonment.1
victim forgives the offender.
I have provided an example relevant to the scenario 5. A guilty plea may result in the court imposing a less severe sanction
and linked it to the theory.2 by applying a sentencing discount.
6. B. False. Explanation: Whilst remorse is a mitigating factor, the

c. [Imprisonment can achieve the purpose of rehabilitation to a courts will not consider a lack of remorse as an aggravating factor.
moderate extent, however, this can depend on resource availability
and the willingness of the individual offender.1][Imprisonment
may be able to rehabilitate Toby as prisons provide some Preparing for exams
rehabilitation programs, such as alcohol and drug programs,
Standard exam-style
which can address potential underlying causes of offending.2]
[However, the success of rehabilitative programs will also be 7. [A guilty plea is a full admission by an accused person of an offence
dependent on Toby’s willingness to engage with and participate for which they have been charged. ][One impact that a guilty plea
1
in the rehabilitative activities, and may be unsuccessful if Toby may have on Stavros’ criminal case is that the court may consider
is not willing to address the causes of his offending.3][Additionally, this as a mitigating factor, and consequently lessen the severity
3C ANSWERS
the prison population’s need for rehabilitative services far exceeds of the sanction it imposes.2][By pleading guilty, Stavros demonstrates
the services provided, as there are often very long waiting lists for that he recognises his conduct was wrong and is willing to accept
access to such services. As a result, Toby may leave prison without
the consequences for his actions.3]
addressing the underlying causes for his offending and return
to committing crimes.4] I have defined the term ‘guilty plea’.1
I have provided one impact of a guilty plea on Stavros’

criminal case.2
ANSWERS 531
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I have provided information about my chosen impact I have provided a second example from the scenario and
of a guilty plea on Stavros’ criminal case.3 linked it to my chosen factor.3
I have used signposting in my response, such as I have identified and defined a second factor the courts
‘One impact’. would consider before sentencing Zuri.4

8. [Mitigating factors are aspects of an offence or the offender that it to my chosen factor.5
render the offending less serious and can lead to a less severe
sentence.1][An example of a mitigating factor is where the offender I have provided a second example from the scenario and
shows remorse for their actions, as this illustrates they regret their linked it to my chosen factor.6
actions.2][Alternatively, aggravating factors are aspects of an offence
or the offender that render the offending more serious and can lead I have used paragraphs to organise my response.
to a more severe sentence.3][An example of an aggravating factor
I used signposting in my response, such as ‘One factor’
is where the crime was motivated by prejudice toward, or hatred
and ‘Another aggravating factor’.
of a particular group, such as a religious or ethnic group.4][One key
difference is that aggravating factors will increase the severity I have used connecting words, such as ‘Furthermore’
of the sanction imposed, whereas, mitigating factors will decrease and ‘Additionally’.
the severity of the sanction imposed.5]
I have defined the term mitigating factors.1

I have provided an example of a mitigating factor.2
11. Appropriate: II; III; IV
I have defined the term aggravating factors. 3 Not appropriate: I
12. a. [ Aggravating factors are aspects of an offence or the offender

I have provided an example of an aggravating factor.4
that render the offending more serious and can lead to a more
I have provided a key difference between mitigating severe sentence.1][For example, the fact that Nathan fled the
factors and aggravating factors.5 scene of the car crash is an aggravating factor, as it increases the
seriousness of Nathan’s actions, consequently, increasing the
I have used signposting in my response, such as severity of the sentence imposed by the court.2][Alternatively,
‘One key difference’. mitigating factors are aspects of an offence or the offender that
I have used comparison words, such as ‘Alternatively’, sentence.3][For example, the court will consider the fact that
when distinguishing. Nathan has no prior criminal convictions as a mitigating factor
as this shows he has no criminal history, which may decrease
the severity of the sentence imposed on him.4]
Extended response
I have defined aggravating factors.1
9. A; C; D
10. [One factor the court would consider when sentencing Zuri are linked it to the impact of aggravating factors.2
aggravating factors, which are aspects of an offence or the offender
that render the offending more serious and can lead to a more I have defined mitigating factors.3
severe sentence.1][As Zuri committed the offence in a crowded park
filled with young children and families, this is an aggravating factor I have provided an example from the scenario and
that will likely render the offending more serious, leading to a more linked it to the impact of mitigating factors.4
severe sentence.2][Another aggravating factor the court would
I have used connecting words, such as ‘Alternatively’.
consider when sentencing Zuri is the fact that she used a knife
to threaten to injure the families and children at the park. The use
of a weapon often renders the offending more serious.3] b. [Plea negotiations are appropriate in this case for both the
[Furthermore, the court will also consider mitigating factors, which prosecution and Nathan if both parties are willing to enter
are aspects of an offence or the offender that render the offending into negotiations.1]
less serious and can lead to a less severe sentence.4][For example, as [One reason why plea negotiations are appropriate in Nathan’s
Zuri pleaded guilty at the first available opportunity, this is a mitigating case is that they can relieve Bec of the stress and trauma
factor as it avoids the need for a full trial to take place, leading to a associated with presenting evidence at trial, whilst it can also
less severe sentence being imposed on Zuri.5][Additionally, as Zuri secure a guilty verdict for the prosecution.2]
demonstrated remorse by stating that she regretted her actions and
[Additionally, another reason why plea negotiations may
3C ANSWERS
is willing to accept the consequences, this will render the offending be appropriate is that they can allow Nathan to plead guilty
less serious, leading to a less severe sentence.6] to the charges against him. In return, Nathan may receive
a lesser charge or fewer charges altogether.3][Plea negotiations
I have identified and defined one factor the courts would
can also allow both Nathan and the prosecution to avoid the
consider before sentencing Zuri.1
costs and time associated with a criminal trial.4]
it to my chosen factor.2
532 ANSWERS
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[However, plea negotiations may not be appropriate if Nathan

is not prepared to plead guilty to the charges against him,
particularly as he has already pleaded not guilty to each of the
three offences he has been charged with.5]
[Overall, plea negotiations are largely appropriate in this case

as they can secure a guilty verdict, avoid the costs and time
associated with a trial, and may be beneficial to Nathan. However,
Nathan must be willing to plead guilty.6]

appropriate in Nathan’s case.2

are appropriate in Nathan’s case.3
I have provided a third reason why plea negotiations

are appropriate in Nathan’s case.4

not appropriate in Nathan’s case.5



and ‘However’.
3C ANSWERS
ANSWERS 533
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4A K
ey principles of Alternatively, in relation to the standard of proof, the requirement is for
Abigail to prove that her version of the facts is more likely to be correct
the Victorian civil than ProTimes’ version of the facts.4]
justice system I have provided information about the burden of proof.1
I have provided information about the standard of proof.2

I have provided one key difference between the burden
1. A. True. Explanation: The civil justice system provides a means of proof and the standard of proof.3
of resolving private disputes between parties where there has been
an alleged breach of rights. I have provided an example from the scenario and linked
it to the burden of proof and the standard of proof.4
2. A; B; D. Explanation: Both kidnapping and murder are criminal offences.
3. The plaintiff has the burden of proof in civil cases, meaning they are ‘The key difference’.
responsible for proving the facts of the case.
4. B. False. Explanation: The burden of proof in civil claims shifts from
the plaintiff to the defendant if the defendant files a counterclaim. I have used comparison words, such as ‘On the other
hand’ and ‘whereas’, when distinguishing.
5. C. Explanation: The plaintiff must prove the case on the balance
of probabilities, meaning the plaintiff is required to establish that their
version of the facts is more likely to be correct, and the defendant 10. [The first error in the scenario is that the burden of proof rested
is most likely liable. with Martha for breaching the contract.1][The burden of proof
would lie with Imashi as she is the plaintiff who initiated a civil
6. The standard of proof in civil cases is a lower threshold in comparison
claim against Martha.2]
to the standard of proof in criminal cases.
[The second error is that the case had to be proven beyond
reasonable doubt. ][For civil claims, the standard of proof is on
3
Preparing for exams the balance of probabilities, meaning Imashi would need to prove
Standard exam-style that her version of the facts is more likely to be correct, and that
Martha is most likely liable.4]
7. [The standard of proof is the degree to which the facts of the case [The third error is that Martha was later sentenced to a term
must be proven in court, and in civil cases, the standard of proof
of imprisonment. ][In civil claims, where the plaintiff is successful,
5
is on the balance of probabilities.1][This means the plaintiff is required
the defendant, may be ordered to pay damages to the plaintiff
to establish that their version of the facts is more likely to be correct,
to compensate the loss but would never be imprisoned, as this
and the defendant is most likely liable.2]
is a sanction of the criminal justice system.6]
I have identified the standard of proof in civil disputes.1
I have identified the first error in the scenario.1
I have defined the balance of probabilities.2
I have provided the correct civil procedure for the first
error in the scenario.2
8. [In this case, the burden of proof lies with Beatrice as she is the plaintiff I have identified the second error in the scenario.3
initiating a claim against Blubes. ][As this is a civil case, the standard
1
of proof is on the balance of probabilities, meaning Beatrice must prove

I have provided the correct civil procedure for the second
that her version of the facts is more likely to be correct, and Blubes, the
defendant, is most likely liable for the breach of contract.2]
I have identified the third error in the scenario.5
I have identified the party that holds the burden of proof
in Beatrice’s case.1 I have provided the correct civil procedure for the third
in Beatrice’s case.2 I have used paragraphs to organise my response.

9. [The burden of proof refers to the responsibility of a party to prove ‘The first error’ and ‘The second error’.
the facts of a case. In a civil case, the burden of proof rests with
the plaintiff.1][On the other hand, the standard of proof refers to
the degree to which the facts of the case must be proven in court.
The standard of proof in civil proceedings is on the balance of Extended response
4A ANSWERS
probabilities.2][One key difference between these two concepts is that

11. A; D; E
the burden of proof refers to which party is responsible for proving the
facts of a case, whereas the requirement in relation to the standard
of proof is about the degree to which that party must prove the facts.3]
[Therefore, in Abigail’s case, as the plaintiff, she has the burden of proof
or the responsibility of proving her version of the facts of the case.
534 ANSWERS
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12. [The burden of proof refers to the responsibility of a party to prove

I have provided information about how the standard
the facts of a case, and in civil claims, this burden rests with the
of proof in a criminal case differs from the standard
plaintiff.1][In its case against Hannah, Sleek Financial has the burden of proof in a civil case.3
of proof as it is the party initiating the claim against its customer,
Hannah.2][However, if Hannah initiates a counterclaim against Sleek I have used connecting words, such as ‘Therefore’.
Financial, the burden of proof will shift to lie with her as she is initiating
a separate claim against Sleek Financial, and is therefore responsible I have used comparison words, such as ‘On the other hand’,
for proving her claim against the business.3] when distinguishing.
[Furthermore, the standard of proof refers to the degree to which

the facts of a case must be proven in court. ][In civil disputes, the
4
standard of proof is on the balance of probabilities, meaning the

plaintiff is required to establish that their version of the facts is more
4B Initiating a civil claim
likely to be correct, and the defendant is most likely liable.5][Therefore,
Sleek Financial must prove it is more probable than not that Hannah Check your understanding
owes $1000 in fees for financial services not completed in 2021.6]
1. A. True. Explanation: Before initiating a civil claim, a potential
[Although, if Hannah initiates a counterclaim, she must prove that her plaintiff should consider if they can afford to do so, if they are
version of the facts, that Sleek Financial has been charging her fees
within the legal-time frame for commencing a claim of that type,
every year since 2012 but providing no service for these fees, is more
and if the defendant is in a position to fulfil their legal obligation
likely to be correct.7]
to compensate the plaintiff.
I have defined the burden of proof.1 2. A; B; D. Explanation: Even if the plaintiff is successful in their civil claim,
the defendant may not be in a position to fulfil financial obligations.
I have provided information about who has the burden
of proof in Sleek Financial’s claim.2 3. A potential plaintiff should consider enforcement issues as this may
indicate that the defendant is not in a position to pay, or will unlikely
I have provided information about who has the burden pay compensation to the plaintiff.
of proof if Hannah initiates a counterclaim against
Sleek Financial.3 4. A. True. Explanation: There are circumstances in which a plaintiff can
commence a civil action after the limitation period as applications for
I have defined the standard of proof.4 extensions can be made in certain circumstances.
I have identified and defined the balance of probabilities.5 5. Prior to initiating a civil claim, a potential plaintiff should consider
costs due to the various expenses that are involved with a civil action,
I have provided information about the balance such as fees for legal representation. A potential plaintiff should also
of probabilities in Sleek Financial’s claim.6 consider the limitation of actions because this may indicate that their
claim falls outside the legal time frame in which they are allowed
I have provided information about the balance to initiate their civil action.
of probabilities if Hannah initiates a counterclaim
against Sleek Financial.7 6. A; C. Explanation: If a plaintiff is unsuccessful, an adverse cost order is
often made by the courts to make them pay the defendant’s legal cost,
I have used paragraphs to organise my response. but not always. The opposite is applicable too, if a plaintiff is successful,
the defendant often has to pay the plaintiff’s legal expenses.
and ‘Furthermore’. 7. A. True. Explanation: Initiating a civil claim may not be appropriate
in all circumstances, for example, if the plaintiff cannot afford to bring
a civil action against the defendant.

Preparing for exams
13. [In a criminal case, the standard of proof is beyond reasonable
doubt, which requires the prosecution to prove there is no reasonable Standard exam-style
doubt that the accused is guilty of the crime they have been charged
with.1][On the other hand, the standard of proof in civil cases is on
8. [One enforcement issue that Steve should consider is the fact that
Kehlani is in jail, as this may make it difficult to enforce a payment.1]
the balance of probabilities, which requires the plaintiff to establish
that their version of the facts is more likely to be correct, and the [This may impact Steve’s decision to sue Kehlani as she may be unable
defendant is most likely liable.2][Therefore, the key difference is to pay compensation to Steve even if he is successful in his claim.2]
that the civil standard of proof is a lower threshold of proof than the
I have provided one enforcement issue that Steve
criminal standard of proof. This is because the consequences do not
should consider.1
generally extend beyond the plaintiff and defendant in a civil case.3]
4B ANSWERS
I have identified and defined the standard of proof

enforcement issue.2
I have identified and defined the standard of proof

in a civil case.2
ANSWERS 535
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whether she is entitled to a legal remedy for her injured hand, as well
9. [One factor that should be considered before initiating a civil claim
is the limitation of actions, which refers to the time frame restriction as helping prepare legal documents and represent Nyla if the matter
in which a plaintiff is able to initiate their civil action.1][For example, proceeds to trial.5][Additionally, Nyla should consider the possibility
the limitation period for defamation is one year, meaning an that if unsuccessful, the court may make an adverse cost order, adding
individual must initiate a defamation claim within one year of the to the financial burden of taking legal action by paying for some or all
alleged breach occurring.2][Therefore, before a potential plaintiff of Healthy Foods’ legal costs.6]
initiates a civil claim, they must ensure they do so in the legal [It will be important for Nyla to consider a variety of factors before
time-frame for disputes of that type.3] initiating civil action against Healthy Foods as, if she doesn’t,
she may be in a worse-off financial position than she would have
I have identified and defined one factor that should been had she not initiated the claim.7]
be considered before initiating a civil claim.1
I have identified and defined one factor that would have
I have provided an example of my chosen factor.2 to be considered before initiating a civil claim.1
I have provided further information about my I have provided examples from the scenario and linked
chosen factor.3 them to my chosen factor.2
I have provided further information about my chosen factor.3

10. [One factor that Leo and Kira would have to consider before initiating
a civil claim is costs, which refers to the amount of money that has I have identified and defined a second factor that would
to be paid to resolve a legal dispute.1][The costs involved in initiating have to be considered before initiating a civil claim.4
a civil claim are very high, as Leo and Kira may have to pay for various
fees, such as fees for legal representation and court fees.2] I have provided examples from the scenario and linked
them to my chosen factor.5
[Furthermore, another factor that should be considered is enforcement
issues, which refers to a problem a plaintiff may need to consider
I have provided further information about my chosen factor.6
regarding the capacity of a defendant to fulfil their legal obligation
to compensate the plaintiff.3][As the builder has moved overseas, I have provided a conclusion to my response that links
it may be difficult for Leo and Kira to secure damages from overseas back to the question.7
even if they are successful in their civil claim. Therefore, doing so may
not be appropriate.4] I have used paragraphs to organise my response.
I have identified and defined one factor that would have I have used signposting in my response, such as
to be considered before initiating a civil claim.1 ‘One factor’ and ‘another factor’.
I have provided an example from the scenario and linked I have used connecting words, such as ‘Moreover’.
I have identified and defined a second factor that would

have to be considered before initiating a civil claim.3 Linking to previous learning
I have provided an example from the scenario and linked 13. a. [ Ping has the burden of proof in this case as she is the one
it to my chosen factor.4 initiating the claim against Mimi.1][The standard of proof
in this case is on the balance of probabilities, which requires
I have used signposting in my response, such as Ping to establish that her version of the facts is more likely
‘One factor’ and ‘another factor’. to be correct, and Mimi is most likely liable.2]
I have used connecting words, such as ‘Furthermore’. I have identified who has the burden of proof in
Ping’s case.1
I have identified what the standard of proof is in

Extended response Ping’s case.2
11. A; C; D
12. [One factor that Nyla should consider before initiating civil action
b. [Ping should consider costs before issuing a proceeding against
Mimi because the costs involved in a civil dispute can be very
against Healthy Foods is enforcement issues, which refers to a
high.1][For example, Ping may have to pay for various fees, such
problem a plaintiff may need to consider regarding the capacity
as fees for legal representation and court filing fees. Therefore,
of a defendant to fulfil their legal obligation to compensate the
Ping should consider whether she is willing and able to afford
plaintiff1][As Healthy Foods has been losing money and has limited
these costs.2][Additionally, Ping should consider the limitation
assets, this may indicate that even if Nyla is successful in her claim,
of actions which restricts the legal time-frame for a defamation
the company may be unable to pay compensation.2][Therefore, Nyla
4B ANSWERS
case, requiring a plaintiff to bring an action in defamation within

should consider the likelihood of obtaining a legal remedy enforced
one year of the defamation occurring, unless there are extenuating
by the court before initiating a claim against Healthy Foods.3]
circumstances.3][Therefore, Ping must initiate her claim within
[Moreover, another factor that Nyla should consider is costs, which one year of when Mimi published the article. However, Ping’s claim
refers to the amount of money that has to be paid to resolve a legal may fall outside the limitation period as the article claiming Ping
dispute.4][Nyla should consider the high costs associated with a civil is a liar and has a stunt double was published ‘some time ago’.4]
case, such as paying fees for legal representation to advise her on
536 ANSWERS
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I have identified why Ping should consider costs.1

them to costs.2
I have identified why Ping should consider the limitation

of actions.3

them to the limitation of actions.4

4B ANSWERS
ANSWERS 537
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5A T
he principles of justice 9. [One way Baxter could gain better access to the legal system is
through using alternate methods of dispute resolution, which are
during a civil dispute out-of-court settlement options for civil disputes where the parties
negotiate with an independent third party who facilitates discussion
and encourages, or determines, a fair resolution.1][This would allow
Check your understanding Baxter to access a just resolution in a timely manner by avoiding the
delays associated with the courts which he was becoming frustrated
1. B. False. Explanation: There are only three principles of justice; by.2][Another way Baxter could gain better access to a just resolution
fairness, equality, and access.
is through an alternate dispute resolution institution, such as VCAT.3]
2. B. Explanation: As the law is highly complex, a defendant may not [As VCAT aims to provide efficient dispute resolution services, this
understand how to best present their case which may lead to an may allow Baxter to avoid the extensive delays in resolving his civil
unjust outcome to the case, limiting the achievement of fairness. dispute in the courts.4]
3. The principle of fairness ensures that all people can participate in I have provided one way Baxter could better access justice.1
the justice system and its processes should be impartial and open.
I have provided an example relevant to the scenario and
4. A; C. Explanation: Victim impact statements are only relevant linked it to my chosen way.2
to criminal law and would not be taken into account in civil
proceedings. Additionally, if a juror demonstrated bias towards I have provided a second way Baxter could better
either party in a civil case due to knowing them personally, they access justice.3
would be disqualified from being part of the jury.
5. A. True. Explanation: Class actions promote engagement with the linked it to my chosen way.4
justice system and empower individuals to partake in a case they
may not have been able to afford individually. This is because the I have used signposting in my response, such as ‘One way’
expenses of a class action are covered by either the lead plaintiff and ‘Another way’.
or third-party litigation funders.
6. The principle of equality aims to ensure uniform treatment of all 10. [One reason why the Politician Exemption Act would hinder equality
individuals in the civil justice system, with the exception of instances is that it breaches the rule of law.1][All members of the community
where it may lead to disadvantage. are subject to the same standards of behaviour set by civil law and
people with a higher social status should not have a separate set
7. A. True. Explanation: Justice can be evaluated through the three
of laws as this is unequal.2][Procedures in the courts should be
principles of justice and aims to allow all people to interact and
applied in the same manner in all civil cases, regardless of personal
use the legal system effectively.
characteristics such as age, gender, wealth, native language, ethnicity,
or religion. Therefore, the Politician Exemption Act would hinder
Preparing for exams equality by treating politicians differently from the average person.3]
Standard exam-style I have identified one limitation of the Politician Exemption

Act in upholding the principle of equality.1
8. [One way the civil justice system upholds the principle of fairness
is through the use of an independent judge and/or jury to adjudicate I have provided information about the ability of the
civil disputes.1][The judge and jury must be impartial and unbiased, Politician Exemption Act to uphold the principle of equality.2
basing their decisions solely on the facts of the case.2][Additionally,
if a jury is used in civil cases, this contributes to fairness as they I have provided further information about the ability of the
represent a cross-section of the community and should therefore, Politician Exemption Act to uphold the principle of equality.3
make a decision about liability that reflects community values.3]
I have provided one way the civil justice system upholds ‘One reason’.
the principle of fairness.1
I have provided information about my chosen way. 2
I have provided information about how my chosen way Extended response

upholds the principle of fairness.3
11. Strengths: II; III
I have used signposting in my response, such as Limitations: I; IV
‘One way’.
12. [The principles of fairness and equality may be achieved in Serena’s
I have used connecting words, such as ‘Additionally’. case, subject to certain limitations.1]
5A ANSWERS
[Fairness is the principle that all people can participate in the justice
system and its processes should be impartial and open. ][One way 2
fairness is achieved in Serena’s case is that both parties will have the
opportunity to present their case. This means that Serena will be able
to defend herself and rebut Blair’s arguments against her.3][However,
fairness may not be achieved because Serena is representing herself
and may not be able to effectively present her defence.4]
538 ANSWERS
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[Equality refers to the principle that all people engaging with the
justice system and its processes should be treated in the same way.5]
5B M
ethods of resolving
[Equality can also be achieved as the judge in Serena’s case must
remain independent and unbiased, basing its decisions solely
civil disputes
on the facts of the case and not on the characteristics of the parties.6]
[However, equality may not be achieved because the judges cannot Check your understanding
assist unrepresented parties to the extent a legal practitioner can,
1. A. Explanation: Where the parties want to avoid expensive legal fees
even if they recognise that the court proceeding is unequal. Judges
and maintain privacy, alternative methods of resolving disputes, away
can merely ensure that the parties understand the proceedings.7]
from the courts, are optimal.
[Overall, the ability for both parties to present their case, and
an independent judge and jury, assist in upholding the principles 2. B. False. Explanation: The role of an arbitrator is to listen to both
parties’ sides of the issue and then make a final decision as to the
of fairness and equality.8]
outcome of the civil dispute.
I have provided an introduction to my response.1 3. Arbitration limits the principle of justice of equality from being
achieved as parties may have to self-represent, therefore the two
I have defined fairness.2 parties may be on unequal footing and the unrepresented party
is likely to be disadvantaged.
I have provided one way the achievement of the principle
of fairness may be upheld in this case.3 4. Mediation: II
Arbitration: I; III
of fairness may be limited in this case.4 5. B; D. Explanation: Parties participating in mediation often choose
to pursue this method of dispute resolution due to its private
I have defined equality.5 nature and because legal representation is not required, which
can lower expenses.
of equality may be upheld in this case.6 6. A. Explanation: Paying for a mediator is far less costly than the
expense of court proceedings, therefore increasing access to justice
I have provided one way the achievement of the principle as individuals of lower socio-economic status can still pursue legal
of equality may be limited in this case.7 action to resolve a civil dispute.
I have provided a conclusion to my response that links 7. A. Explanation: A conciliator has the right to offer information and
back to the question.8 advise parties by making personal suggestions on the dispute and
facilitate conversations, whereas a mediator should not provide
I have linked my answer to the scenario where appropriate. their own personal input or opinions.
I have used paragraphs and topic sentences to organise 8. A; B. Explanation: Conciliation is appropriate when parties show
my response. a willingness to discuss their issues with one another and compromise
on the matter. It is also an ideal alternative to court proceedings
I have used signposting in my response, such as ‘One way’. when parties want their issues to remain private.
I have used connecting words, such as ‘However’. 9. B; C; D. Explanation: When engaging in conciliation, a conciliator
will provide suggestions to parties and ensure both parties’ opinions
are being heard.
Linking to previous learning 10. B. False. Explanation: Mediation, conciliation, and arbitration are
all alternative methods of dispute resolution that can be used
13. [Enforcement issues refer to a problem a plaintiff may need to
by parties to resolve a dispute instead of the court system.
consider regarding the capacity of a defendant to fulfil their legal
obligation to compensate the plaintiff.1][For example, if a plaintiff
is awarded damages but the defendant is not in a financial position Preparing for exams
to compensate them for the wrongdoing, access to justice is unlikely
to be achieved.2][Therefore, prior to engaging with the civil justice
Standard exam-style
system, a plaintiff should consider whether it is likely that the outcome
11. [One method of resolving a civil dispute that could be ordered by the
will provide them access to the justice and damages they desire.3] courts is mediation. Mediation is a non-judicial dispute resolution
method involving an independent third party that facilitates
I have defined enforcement issues.1
conversations between disputing groups.1][One feature of mediation
is that the mediator, an unbiased individual who does not impose their
I have provided one reason why enforcement issues
opinion or provide resolution suggestions, facilitates the discussion
hinder access.2
between the parties and encourages a mutually agreed resolution.2]
5B ANSWERS
I have provided further information about my [Another feature of mediation is that it is non-binding. However,
enforcement issues and the achievement of access.3 once parties reach an agreement they will often enter into a deed
of settlement or a formal agreement setting out the resolution of the
I have used connecting words, such as ‘Therefore’. civil dispute that both parties are bound by.3]
ANSWERS 539
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I have identified and defined one method of resolving I have provided information about my chosen way.2
civil disputes.1
I have provided a second way alternative methods
I have provided one feature of my chosen method of resolving civil disputes achieve access.3
of resolving a civil dispute.2
I have provided a second feature of my chosen method
of resolving a civil dispute.3 I have used paragraphs to organise my response.
I have used signposting in my response, such as I have used signposting in my response, such as
’One method’ and ‘One feature’. ‘One way’.
I have used connecting words, such as ‘However’. I have used connecting words, such as ‘As a result’
12. [One similarity between conciliation and arbitration is that both

of these methods of dispute resolution involve an independent
third party listening to the dispute, with the cost of this unbiased Extended response
conciliator or arbitrator being significantly less than the expense
14. A; B; C
associated with paying for a court to conduct a civil hearing.1]
[One difference between the two forms of dispute resolution is that 15. [Conciliation may be an appropriate method for resolving this
the arbitrator makes the final decision on the resolution of the dispute, dispute, however, it will depend on a number of factors.1]
whilst a conciliator does not have the power to do so. Conciliators
can only suggest to the parties how they believe the dispute should
[Conciliation may be appropriate for Daniel’s dispute as it is an
informal and less costly dispute resolution method. With the
be resolved, providing advice but not a concrete decision.2] presence of an independent third party, the conciliator, Daniel and
[Furthermore, another difference between the two forms of dispute the landlord may be able to reach a mutually-agreeable solution
resolution is that, at the conclusion of arbitration, a legally-binding to repair the roof and compensate Daniel for the loss and harm
decision is made whilst the result of conciliation is not necessarily suffered.2][Moreover, conciliation can produce a binding outcome
binding unless the parties both consent to make it binding through if Daniel and the landlord sign a deed of settlement, meaning the
a deed of settlement.3] parties can be reassured the agreement is legally enforceable
if one party decides to go back on their end of the resolution.3]
I have provided one similarity between conciliation and
arbitration as methods of dispute resolution.1
[However, conciliation may not be appropriate for Daniel’s claim
as the landlord has not previously taken action. As conciliation
is voluntary and dependent on the parties discussing the matter with
I have provided one difference between conciliation and
one another, if the landlord is unwilling to negotiate, conciliation
arbitration as methods of dispute resolution.2
is unlikely to be successful.4][Furthermore, the parties may prefer
I have provided a second difference between conciliation the formalities of a court trial and the binding nature of a court
and arbitration as methods of dispute resolution.3 ruling, given conciliation agreements are not binding unless a deed
of settlement is signed.5]
[For these reasons, provided the parties cannot agree on a resolution
through informal negotiations, conciliation may be an appropriate
‘One similarity’ and ‘One difference’. means of dispute resolution for Daniel and the landlord.6]
I have used connecting words, such as ‘Furthermore’. I have provided an introduction to my response.1
I have provided one reason why conciliation may

13. [One way the alternative methods of civil dispute resolution promote be appropriate in this instance.2
fairness is by allowing the parties to retain control over the arguments
they present during informal discussions.1][As a result, parties can I have provided information about the appropriateness
present their case in the best light and also have greater autonomy of conciliation.3
over the direction of the dispute. Therefore, parties are more likely to
I have provided one reason why conciliation is not
reach a resolution they believe is fair, particularly when mediation and
appropriate in this instance.4
conciliation are used, as they must compromise during the process
and consent to the final decision or whether a deed of settlement will
I have provided information about why conciliation may
be used.2] not be appropriate in this instance.5
[Additionally, alternative methods of resolving civil disputes can
contribute to the achievement of access as utilising these methods I have provided a conclusion to my response that links
is often significantly less expensive than using the courts.3] back to the question.6
5B ANSWERS
[This enhances a party’s access to justice as individuals of a lower I have linked my answer to the scenario where appropriate.
socio-economic status are still able to participate in the dispute
resolution process and ideally achieve a resolution.4] I have used paragraphs to organise my response.
I have provided one way alternative methods of resolving I have used connecting words, such as ‘Moreover’
civil disputes achieve fairness.1 and ‘However’.
540 ANSWERS
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16. Strengths: I; III [Winter would need to consider the costs associated with a civil trial
Limitations: II; IV and court proceedings. This could be an issue for Winter and Summer
as they both do not currently have the financial means to fund legal
17. [In certain circumstances, mediation has a greater capacity proceedings, given Winter has not been working and Summer is at risk
to facilitate and promote access to justice compared to arbitration,
of bankruptcy.2][By making use of other methods of dispute resolution
however, arbitration is not necessarily a less effective method
outside of the courts, such as conciliation, both parties can reduce the
of dispute resolution and has its own benefits.1] expense of resolving their dispute significantly as they may be able
[Mediation is more informal than arbitration, and thus can be less to self represent, as opposed to engaging legal representation.3]
intimidating for parties, allowing them to openly negotiate and discuss [The cost of hiring a conciliator is also significantly less expensive
their side of events in a comfortable environment.2][Furthermore, than a court trial, and conciliators have specific knowledge regarding
mediation provides parties with more control over the outcome of the subject matter of the dispute to assist Winter and Summer
the dispute and the evidence they provide. As the disputing parties in reaching a resolution by providing suggestions and advice.4]
compromise and must be willing to see each others’ point of view, the
relationship between parties is more likely to be maintained.3]
[A second factor Winter would need to consider before initiating a civil
claim against Summer is enforcement issues. It is clear that Summer
[However, this is not always the case and it cannot be assumed that is likely to have significant difficulties in paying damages, if they are
mediation will always be superior to arbitration. Arbitration can also awarded, given Summer’s prospects of bankruptcy.5][This would limit
be an effective method of resolving civil disputes.4][Arbitrators can her capacity to fulfil her legal obligation of compensating Winter and
enforce a binding agreement, unlike mediators, which can guarantee the court proceeding will have been ineffective in providing Winter
a level of certainty in the outcomes. If parties do not sign a deed with a remedy.6][By engaging in an alternative dispute resolution
of settlement regarding the agreements made during mediation, the process, such as mediation, the parties can both express their side
resolution they reach may not actually be maintained, making the of events and establish a compromise. For example, Summer could
process redundant.5][Additionally, in circumstances where there propose a more flexible resolution where she pays Winter in monthly
is a history of violence between parties, mediation can be an instalments instead of compensating him with one lump sum, as this
inappropriate method of dispute resolution due to the potential will give her a greater chance of paying the damages.7]
unequal power dynamic between the two parties. Thus, the violent
party may be unwilling to compromise and the victim may be scared I have identified two factors to consider when initiating
and therefore, less likely to stand their ground.6] a civil claim.1
[Although mediation may be appropriate in some circumstances, I have provided one reason why the first factor would
given its informality and less costly nature, it is not necessarily need to be considered.2
‘better than’ arbitration as the process of arbitration can be more
suitable to some disputes.7] I have provided information about my chosen reason.3
I have provided an introduction to my response.1 I have provided further information about my

chosen reason.4
I have provided one strength of mediation compared
to arbitration.2 I have provided one reason why the second factor would
need to be considered.5
I have provided a second strength of mediation compared
to arbitration.3 I have provided information about my chosen reason.6
I have provided a topic sentence to introduce the main I have provided further information about my
idea of the paragraph.4 chosen reason.7
I have provided one limitation of mediation compared I have used paragraphs to organise my response.
to arbitration.5
I have provided a second limitation of mediation ‘A second factor’.
compared to arbitration.6

back to the question.7 5C T
he Victorian court
hierarchy and civil disputes
and ‘However’. Check your understanding
1. A. True. Explanation: The presence of a court hierarchy in Victoria
establishes a ranking system where each court is assigned varying
Linking to previous learning levels of legal authority to handle different disputes, thereby
5C ANSWERS
contributing to the effectiveness of the civil justice system.

18. True: II; IV
False: I; III 2. A. True. Explanation: Neither the Magistrates’ Court nor the County
Court possess appellate jurisdiction with regard to civil disputes.
19. [Winter would need to consider the factors of cost and enforcement
issues before initiating a civil claim against Summer.1] 3. An appeal is the legal process that a dissatisfied party may pursue
to have a court’s decision reviewed by a higher court.
ANSWERS 541
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4. A. Explanation: Administrative convenience is achieved through the 11. [One principle of justice that the court hierarchy in Victoria achieves
arrangement of courts in a hierarchy, which allows for the volume is access as it provides different court levels, each of which can
of complex and minor cases to be appropriately distributed between handle different types of disputes. For example, the Magistrates’
the courts according to their jurisdiction. Court is able to handle smaller civil disputes for claims under
$100,000, whilst the County Court and Supreme Courts are able
5. C. Explanation: The Supreme Court does not hear minor disputes
to handle more complex and high-value disputes, such as class
or assist the Magistrates’ Court.
actions.1][By offering different levels of courts, the Victorian court
6. D. Explanation: The high cost of an appeal can hinder all of the hierarchy helps ensure individuals have access to a legal system that
principles of justice. If a party cannot afford an appeal they may is appropriate for their particular case.2][This helps ensure individuals
settle with an unfair outcome of their original case, limiting fairness. are not excluded from the legal system due to the complexity or cost
Equality may be hindered with differing socio-economic statuses, of their dispute, and that they are able to access the court to have
as legal expenses affect individuals differently. Access can be limited their disputes resolved in a fair and effective manner.3]
as the cost of appeals may stop people from applying for them even
if they feel an outcome was unjust. I have outlined one way the Victorian court hierarchy
achieves the principle of access.1
7. C. Explanation: An appellate jurisdiction refers to the power and
ability of a court to hear a case on appeal I have provided information about how the Victorian
court hierarchy achieves the principle of access to justify
8. B. False. Explanation: It is important to recognise the limitations my answer.2
of the court hierarchy and the ways the principles of justice are
not wholly achieved. I have provided further information about how the
Victorian court hierarchy achieves the principle of access.3
Preparing for exams

12. a. [Allessio’s case would likely be heard in the Magistrates’ Court
Short exam-style
as the claim is under $100,000.1]
9. [The ability to appeal is a benefit of the Victorian court hierarchy
because this allows higher courts to review and correct errors in a I have identified the court that would hear
Alessio’s dispute.1
decision made by lower courts in civil cases.1][When a civil dispute
is appealed, a higher court can review the decision of the lower
court and determine if there were any legal errors or mistakes in b. [One reason for the existence of a court hierarchy is administrative
the application of the law. This helps reduce the likelihood of unjust convenience. In Alessio’s case, the court hierarchy can help ensure
outcomes by allowing errors in a decision to be corrected before his dispute is resolved as quickly as possible, despite the backlog
they become final.2][Furthermore, appeals promote transparency caused by COVID-19.1][By having different levels of courts with
and accountability in the civil justice system, as decisions are different jurisdictions, the court hierarchy can ensure disputes
subject to review and scrutiny by higher courts.3] are heard at the appropriate level and resolved as quickly and
efficiently as possible.2][Alessio’s case is eligible to be heard
I have identified one reason why a court hierarchy in the Magistrates’ Court, and thus could be resolved much more
is beneficial.1 quickly than if it were heard in another court, as it has the benefit
of administrative convenience.3]
I have provided one reason for the existence of the

I have provided further information about my
civil court hierarchy.1
chosen reason.3
I have used connecting words, such as ‘Furthermore’.
reason for the existence of the civil court hierarchy.2
10. [One reason for the civil court hierarchy is administrative I have linked my reason for the existence of the civil
convenience, as it allows the efficient and effective administration court hierarchy to the scenario.3
of justice.1][The higher courts can spend time on serious, complex
cases to avoid making hasty decisions in expensive or high profile
‘One reason’.
cases, and can deliver a considered verdict. 2][The Magistrates’
Court hears thousands of less complex cases every year as they
can resolve disputes in a timely manner, preventing a backlog 13. [Aliza would appeal the decision on a question of law and her appeal
of cases. This ensures people awaiting trial do not experience would be heard in the Supreme Court – Trial Division. ][In this 1
the stress of delays as disputes are resolved efficiently.3] particular case, the appeal would pertain to a legal matter involving
the interpretation and application of laws or legislation by the
I have identified administrative convenience as a reason magistrate during Aliza’s initial debt claim case.2][For example,
the court hierarchy is beneficial.1 if the magistrate in Aliza’s dispute had misinterpreted the
5C ANSWERS
legislation regarding debt claims, then there would be ground for

I have provided information about administrative
an appeal on a question of law.3]
convenience.2
I have identified the court that would hear Aliza’s appeal.1
I have provided further information about administrative
convenience.3
I have provided one reason that Aliza could appeal.2
‘One reason’.
542 ANSWERS
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I have provided further information about the reason [It is the responsibility of the legal system to work towards addressing
Aliza could appeal.3 these issues and ensuring the principle of fairness is upheld. ] 5
I have linked my answer to the scenario where appropriate. I have provided an introduction to my response.1
I have outlined one way in which the Victorian civil court

14. [The first error is that Johnno is claiming the dispute will be heard hierarchy upholds fairness.2
in the Supreme Court – Trial Division.1][The Supreme Court generally
only hears cases with a value of $100,000 or more. As Johnno is only I have outlined a second way in which the Victorian civil
claiming $50,000 in damages, the dispute would likely be heard court hierarchy upholds fairness.3
in a lower court, such as the Magistrates’ Court.2]
I have outlined one way in which the Victorian civil court
[The second error is that Jimmy believes he can automatically appeal hierarchy limits the achievement of fairness.4
the decision and have the decision reviewed in the High Court, even
if he is found liable.3][Appeals must meet certain criteria, such as I have provided a conclusion to my response that links
the civil judgment allegedly not prescribing the appropriate remedy, back to the question.5
whilst not all cases are eligible for appeal. In addition, appeals are not
automatic, meaning a party must apply to the relevant court to seek I have used paragraphs and topic sentences to organise
my response.
leave to appeal.4]
[The third error is that Jimmy believes he can have the decision I have used connecting words, such as ‘Additionally’
reviewed in the High Court.5][The High Court is not a court of appeal and ‘However’.
for all civil disputes. It only hears appeals in limited circumstances,
such as cases involving constitutional or federal law issues. In most
disputes, appeals from the lower courts would be heard in the Court
of Appeal, which is the next level of the Victorian court hierarchy
above the Supreme Court – Trial Division.6] 17. [Alternative methods of dispute resolution, such as mediation,
arbitration, and negotiation, can take the pressure off the court
I have identified one error in the scenario.1 hierarchy by providing a more efficient and informal option for
resolving disputes.1][Alternative dispute resolution methods provide
I have provided a correction to my chosen error.2 a way for parties to resolve disputes without going through the
formal court system. This means disputes can be resolved more
I have identified a second error in the scenario.3 quickly, and at a lower cost than if they were to go through the court
system.2][This reduces the number of cases that need to be heard
I have provided a correction to my chosen error.4
in court, which can relieve pressure on the court hierarchy.3]
I have identified a third error in the scenario.5
I have identified one way alternative methods of dispute
resolution can take the pressure off the courts.1
I have provided a correction to my chosen error. 6

alternative methods of dispute resolution can take
‘The first error’ and ‘The second error’.
pressure off the courts.2
I have provided a link between alternative methods

Extended response of dispute resolution and the court hierarchy.3
15. Achieved: I; II
Limited: III
16. [Whilst the civil court hierarchy is designed to ensure disputes are
5D J udges, magistrates, and
heard in the appropriate court and there is a clear process for appeals,
it is important to recognise that there are some situations in which
juries in a civil dispute
the arrangement of the courts can potentially lead to unfairness in the
legal process.1] Check your understanding
[Appeals are theoretically accessible to all parties, as long as they 1. A. True. Explanation: Under the Civil Procedure Act 2010 (Vic), a judge
have valid legal grounds to do so. This ensures that any errors are has the power to make orders and actively intervene in how parties
rectified, promoting fairness.2][Additionally, the court hierarchy conduct their disputes prior to a trial and during a trial.
helps to reduce delays by assigning cases to the appropriate
court level based on their complexity. By minimising delays and 2. B. False. Explanation: Civil juries are only used upon request of the
streamlining the appeals process, the court hierarchy promotes fair parties and must be paid for by the parties. They are rarely used
5D ANSWERS
treatment of parties, preventing prolonged stress.3] in civil cases.
[However, it is important to note that the party seeking to appeal 3. A; C; D. Explanation: The case management powers of the judge
is responsible for the cost of the application and legal fees. This in a civil case encompass the power to order mediation, make
means some dissatisfied parties may be unable to afford the cost directions, and set the timeline of the case.
of lodging an appeal, resulting in unjust decisions not being rectified
and leading to an unfair outcome.4] 4. A judge can improve the efficiency of a dispute by limiting the time
spent on cross-examination and reducing the amount of topics that
a witness may be questioned on.
ANSWERS 543
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5. A; B; C. Explanation: The jurors did not fulfil their obligations to remain

I have used signposting in my response, such as ‘One role’
alert and attentive to the evidence being presented as a number
and ‘A second role’.
of them were playing Sudoku. Additionally, jurors must remain
independent and unbiased, which was not demonstrated as they
admitted to being influenced by external media reports, meaning they
did not disregard the knowledge and information they obtained about
the case outside of the courtroom. 12. [Under the Civil Procedure Act 2010 (Vic), judicial powers of case
management enable judges in civil cases to provide pre-trial orders
6. Fairness: I
and directions about the proceedings to the parties.1][The overarching
Equality: III
aim of case management is to ensure justice is delivered swiftly, with
Access: II
judges using case management powers ‘to facilitate the just, efficient,
7. B; D. Explanation: Juries are not used in the Magistrates’ Court timely, and cost-effective resolution of the real issues in dispute’.2]
and therefore, magistrates do not have the responsibility of advising [Using case management powers, judges can order parties to attend
a jury. Furthermore, it is not the role of magistrates to assist a judge mediation, directions hearings, determine deadlines, and control the
with high-profile cases upon request. overall trial process. Additionally, if a party does not comply with the
judge’s directions, the court may dismiss the claims presented, reject
8. A; C, Explanation: The verdict in criminal and civil cases differ as a certain evidence, or order an adverse cost order.3]
criminal jury needs to deliver a guilty or not guilty verdict, compared
to a civil jury, which determines whether the defendant is liable I have provided information about case management
or not liable. Additionally, criminal jurors never assist in determining powers.1
the sanction of an accused, however, civil jurors may determine the
damages a defendant is required to pay, in some circumstances. I have provided further information about case
management powers.2
9. B. False. Explanation: A civil jury is not an automatic right. If a party
wishes to use a jury in a civil dispute they must receive approval I have provided examples of the use of case management
to do so and fund the cost of the jury. powers in a civil dispute.3
I have used connecting words such as ‘Additionally’.

Preparing for exams
Standard exam-style
13. [One similarity between a judge’s role in a criminal case and their role
10. [One role of the judge in a civil trial is to apply the rules of evidence in a civil case is that, regardless of the type of case they are presiding
over, a judge has the paramount role of acting as the independent
and procedure.1][This means they are required to make rulings relating
to evidence and procedure, which can include ensuring only admissible umpire of the court and must remain impartial.1][Another similarity
evidence is presented in court, ensuring witnesses are examined and is that in both criminal and civil cases, judges have a role in ensuring
cross-examined lawfully, and giving directions on how evidence is to correct procedures are followed, including the rules of evidence.2]
be presented and what documents the jury is permitted to see.2] [One difference between a judge’s role in a criminal case and a
judge’s role in a civil case is that for civil cases, judges have a role in
I have provided one role of the judge in a civil dispute.1 pre-trial case management, such as ordering mediation or discovery,
whereas judges in criminal cases do not have a role in pre-trial case
management.3][Another difference is that judges in civil cases
may play a role in determining the outcome of a case, in that they
will decide on the liability of the defendant. On the other hand,
in a criminal case, the role of deciding a verdict is the role of the jury,
unless it is a case in the Magistrates’ Court, in which case the
11. [One role of the jury in a civil trial is to remain objective.1][The jury
should be independent and unbiased throughout the proceedings magistrate will decide.4]
and when determining the verdict. If a juror believes they are
unable to remain impartial throughout the trial, they must ask I have provided one similarity between the role of a judge
in a criminal case and the role of a judge in a civil case.1
to be excused during the process of jury empanelment.2][A second
role of the jury is to listen to evidence, judge’s directions, and
I have provided a second similarity between the role
submissions made by legal representatives.3][The jury must listen
of a judge in a criminal case and the role of a judge in
to all evidence presented at trial to ensure the verdict is based
a civil case.2
on all relevant evidence and the facts of the case. Therefore, jurors
must be alert, take notes, and keep track of information throughout I have provided one difference between the role of a judge
the trial. This involves listening to any directions given by the judge in a criminal case and the role of a judge in a civil case.3
and explanations of key legal concepts.4]
I have provided a second difference between the role
I have provided one role of the jury in a civil dispute.1 of a judge in a criminal case and the role of a judge in
a civil case.4
5D ANSWERS

I have provided a second role of the jury in a civil dispute.3
I have provided information about my chosen role.4 ‘One similarity’ and ‘Another similarity’.
I have used comparison words, such as ‘whereas’ and

‘On the other hand’, when distinguishing.
544 ANSWERS
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14. [I do not agree that the role of a jury in a criminal case is identical
to the role of a jury in a civil case. Whilst there are many aspects
of the role that are the same, there are also some differences.1] I have provided one way the use of juries in civil cases
[One difference is the standard of proof that the jury is required to can enable the achievement of fairness.2
follow when making their decision. ][In a criminal case, it is the jury’s
2
I have provided a second way the use of juries in civil
role to determine the guilt or innocence of the accused. If determining
cases can enable the achievement of fairness.3
that the accused is guilty, this must be beyond reasonable doubt.
However, in a civil case, the jury must determine the defendant’s
I have provided one way the use of juries in civil cases
liability, and this must be on the balance of probabilities.3] can limit the achievement of fairness.4
[Another difference is that in some civil cases, the jury may play a role
in determining the amount of damages to be awarded, whereas the I have provided a second way the use of juries in civil cases
imposition of a sanction for an accused who is found guilty is never the can limit the achievement of fairness.5
role of a jury in a criminal case.4]
I have provided a conclusion to my response that links back
to the question.6
I have provided an introduction to answer the question.1
I have provided one difference between the role of juries
in criminal cases and the role of juries in civil cases.2
difference.3
and ‘However’.
I have provided a second difference between the role of
juries in criminal cases and the role of juries in civil cases.4
17. [In a civil case, the standard of proof is on the balance of probabilities,
I have used signposting in my response, such as whereas in a criminal case, the standard of proof is beyond reasonable
‘One difference’ and ‘Another difference’. doubt.1][Therefore, in a civil case, the jury must determine the
defendant’s liability, and this must be on the balance of probabilities.
I have used comparison words, such as ‘However’
This means the jury must be satisfied the plaintiff’s version of facts
and ‘whereas’, when distinguishing.
is more likely to be correct, and the defendant is most likely liable.2]
[In contrast, in a criminal case, it is the jury’s role to determine the guilt
or innocence of the accused. If determining that the accused is guilty,
Extended response this must be beyond reasonable doubt. This means the jury must be
satisfied there is no reasonable doubt that the accused committed the
15. Strengths: I; IV
crime they are charged with.3]
I have identified the standard of proof required in a civil
16. [The use of juries in a civil case can assist in achieving the principle
case and the standard of proof required in a criminal case.1
of fairness to a moderate extent, however, there are some limitations
in using a jury to determine the verdict, and potentially the remedy, I have provided information about the role of a jury
of a civil dispute.1] in a civil case with reference to the standard of proof.2
[Firstly, jurors can promote fairness by encouraging a fair trial that is
determined by a randomly selected and unbiased group of individuals. I have provided information about the role of a jury in
As jurors are randomly selected from the electoral roll, they represent a criminal case with reference to the standard of proof.3
a cross-section of the community and a diverse range of views, which
promotes fairness in the determination and delivery of the verdict.2]
[Additionally, jurors must remain impartial, making their decisions I have used comparison words, such as ‘whereas’ and
solely on the facts and evidence presented. This ensures a fair and just ‘In contrast’, when distinguishing.
outcome as jurors must disregard any personal opinions or external
information, basing their verdict purely on what has been presented
in the courtroom.3]
[However, given jurors are ordinary citizens, the risk of an unfair 5E The parties in a civil dispute
outcome may be enhanced due to the complexities of legal
proceedings. Making decisions in legal cases is a difficult and Check your understanding
complex task, and when undertaken by people with no legal training,
there may be a risk that the final verdict is unfair if jurors have 1. B. False. Explanation: In a civil case, the person who is alleged
5E ANSWERS
misunderstood or misinterpreted key facts or evidence.4][Moreover, to have committed the civil breach is called the defendant.
jurors are not required to provide the rationale for their verdict.
This means there is no guarantee the law has been correctly applied 2. B; C. Explanation: Both parties are able to call witnesses and present
based upon the facts presented, which is disadvantageous to the evidence in court. The defendant has the option to present defences
parties and does not promote a fair resolution to the dispute.5] in court but they have no obligation to defend themselves.
[Therefore, although juries in civil cases can contribute to the 3. A, B, D. Explanation: The plaintiff does not present defences, this
achievement of fairness, in some instances, juries may serve is the role of the defendant.
to hinder fairness.6]
ANSWERS 545
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4. Unlike a criminal trial, parties in a civil trial have a degree of control 10. [One error in the scenario is that Jade is the defendant.1][Jade is
over how the proceedings play out. This is called party control. initiating the civil case against Fabio, the defendant, which makes
her the plaintiff.2][A second error in the scenario is that Fabio would
5. C; D. Explanation: The defendant does not explain points of law
be allowed to withhold documents from the court.3][Both parties
to the court or determine what evidence is admissible as these are
are obligated to provide all relevant documents to the court, so
roles of the judge.
Fabio would likely face legal repercussions for withholding these
6. Strengths: I; IV key documents.4]
7. B. False. Explanation: In civil cases, the plaintiff initiates the claims
and the defendant can choose to present defences, doing so with I have provided the correct civil procedure for the first
the aim of ensuring the plaintiff cannot prove the element of the error in the scenario.2
civil breach on the balance of probabilities.
I have identified the second error in the scenario.3
Preparing for exams I have provided the correct civil procedure for the second
Standard exam-style
I have used signposting in my response, such as ‘One error’
8. [A plaintiff’s role in a civil trial is to initiate the claim and present and ‘A second error’.
their case against the defendant. ][The parties must present all
1
evidence to the judge throughout the trial, alongside the jury if one
has been requested. In practice, the presentation of evidence and
legal arguments is conducted by legal representatives on behalf Extended response
of the plaintiff.2][A second role of the plaintiff is to ensure all relevant
documents are disclosed and presented to the court in accordance 11. A; C; E
with the Civil Procedure Act 2010 (Vic).3]
12. [Risharb, the plaintiff, and Adam, the defendant, must fulfil their
respective roles in a civil trial. Both parties are subject to overarching
I have provided one role of the plaintiff in a civil trial. 1
obligations. For example, the requirement to cooperate, disclose
relevant documents at the earliest possible opportunity, and
I have provided information about my chosen role of the
plaintiff in a civil trial.2 act honestly.1]
[Firstly, Risharb and Adam have the role of presenting their case
I have provided a second role of the plaintiff in a civil trial.3 to the judge and jury, if there is one. ][They can both question
2
witnesses and summarise the facts of their case to the court with
equal opportunity to present their case.3][However, since Risharb
‘A second role’.
is representing himself, he may be disadvantaged, as Adam may
have a proficient lawyer who can present his case in the best
9. [One way the defendant’s ability to present defences upholds possible light. This means Adam and Risharb may not be on equal
the principle of fairness is that both parties are given the same footing in relation to how their case is presented.4]
opportunity to present their side of the story in court for civil
[Furthermore, another role of Adam and Risharb in the civil case is
disputes, increasing the likelihood of an outcome being achieved
both have party control. ][They are able to decide which witnesses
5
that both parties perceive as just.1][The defendant is able to protect to call, what evidence to present, and what legal representation
themselves from liability by presenting defences, allowing them they want, if any. This ensures both Adam and Risharb have full
to choose their own evidence and witnesses to call on so they are
agency over their cases.6][However, this means they may receive
showcased in the best light.2][If the defendant was not given the minimal assistance from the court, which could be a disadvantage
ability to defend themselves, the civil trial process would be largely for Risharb who is unrepresented and may be unable to understand
unbalanced. This could lead to many defendants being found the evidence, rules, and procedures. Therefore, he may miss vital
unfairly liable as their evidence would not be considered, therefore, evidence, be under undue stress due to lack of understanding, and
creating an unjust outcome.3] may cause further delays in the trial.7]
I have provided one way the defendant’s ability to present [Overall, Risharb may be at a disadvantage as he is representing
defences upholds the principle of fairness.1 himself and must take on additional roles relative to Adam. Therefore,
the role of the parties is strenuous in a civil trial due to the concept
I have provided information about my chosen way the of party control.8]
defendant’s ability to present defences upholds the
principle of fairness.2 I have provided an introduction to my response.1
I have provided further information about my chosen I have provided one role of Risharb and Adam in a civil trial.2
way the defendant’s ability to present defences upholds
5E ANSWERS
the principle of fairness.3 I have provided information about my chosen role.3
I have used signposting in my response, such as ‘One way’. I have provided one limitation of my chosen role.4
I have provided a second role of Risharb and Adam

in a civil trial.5
546 ANSWERS
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5. A. True. Explanation: In certain circumstances, such as where there

I have provided one limitation of my chosen role.7
is unequal representation between the two parties as one party
can afford quality lawyers while the other is poorly represented,
legal representation may reduce equality in a civil dispute.
6. B. False. Explanation: The cost of legal representation is a significant
restriction on the principle of access to justice as many plaintiffs
and defendants often cannot afford the substantial fees.
and ‘Finally’.
Preparing for exams
and ‘Furthermore’. Standard exam-style
7. [One reason why legal practitioners are needed in a civil dispute

is to present evidence at trial and cross-examine witnesses. ][When1
Linking to previous learning presenting evidence and cross-examining witnesses, there are
procedural standards that must be followed to ensure irrelevant
13. [The primary role of the parties in a civil trial is to present their case
questions are not being asked. Therefore, a barrister who is familiar
to the court, ensuring they have complied with their overarching
with such rules will be able to ask relevant questions to witnesses
obligations under the Civil Procedure Act 2010 (Vic).1][On the other
and present compelling evidence to support their client’s case.2]
hand, the role of the judge in a civil trial is to act as an impartial
adjudicator and use their case management powers to ensure the I have provided one reason why legal practitioners are
case runs smoothly and efficiently.2][One key difference between needed in a civil dispute.1
the role of the parties to a civil trial and the judge is that the judge
enforces the rules of evidence and procedure, whereas the parties I have provided information about my chosen reason.2
must comply with these rules as per the judge’s direction.3]
I have outlined the role of the parties in a civil trial.1 ‘One reason’.
I have outlined the role of the judge in a civil trial.2

8. [I do not agree with this statement as parties in a civil dispute will
I have provided a key difference between the role of likely be unable to remain objective when self-representing, therefore,
the parties in a civil trial and the role of the judge.3 parties in a civil dispute require legal representation.1]
I have referred directly to relevant legislation in [Unlike the party in the civil dispute who may be emotionally invested
in the dispute’s outcome, especially if the civil dispute relates to
my response.
sensitive matters such as discrimination or family issues, a lawyer
I have used comparison words, such as ‘On the other hand’ will be able to look at the dispute through an impartial lens as they
and ‘whereas’, when distinguishing. themselves are not emotionally impacted by its outcome.2][This
upholds fairness as the evidence that lawyers collate and their
questions to witnesses can allow an impartial account of events
to emerge. If a self-representing litigant questions witnesses, on the
5F L egal practitioners other hand, their emotions and biases may skew the examination
process and prevent the truth from emerging, thus impacting the
in a civil dispute ability for a just outcome to the dispute to emerge.3]
I have stated whether I agree or disagree with

Check your understanding the statement.1
1. C. Explanation: A legal practitioner will often assist a client in I have provided one reason why legal practitioners are
presenting the relevant evidence in the best possible light to the court. needed in a civil dispute.2
It is the role of the judge in the case to determine the defendant’s
liability and decide the appropriate remedies to award the plaintiff. I have linked my chosen reason to a principle of justice.3
2. A; C. Explanation: One reason why a party may choose to engage

legal practitioners in their civil dispute is they can confide in their 9. [One reason why Kris may require legal practitioners, if the civil
lawyer and rely on them for comfort during the civil dispute, which dispute goes to trial, is to present evidence on her behalf. The legal
may be an emotional experience for some parties. practitioners would be able to call upon witnesses that will speak
favourably of Kris, presenting her case in the best light, whilst also
3. Solicitors are the legal practitioners primarily responsible for the
cross-examining the witnesses that Kendall selects.1][The media
pre-trial necessities in a civil dispute. Barristers, on the other hand,
outlets that Kendall is alleging Kris spoke to, for example, may be
present the facts and arguments about their client’s case during the
witnesses that Kendall’s legal practitioners call upon to support
5F ANSWERS
trial either in court or during other methods of civil dispute resolution,

the fact that Kris was breaching a confidentiality contract with
such as mediation.
Kendall by talking to them.2][Therefore, Kris’s barrister may need
4. A. True. Explanation: For the principle of access to be achieved to cross-examine these witnesses or try and obtain evidence that is
parties must understand the law and legal proceedings, which favourable for Kris. Legal practitioners will be beneficial as Kris may
can be accomplished through the assistance of a lawyer. not understand the procedural rules to be followed when questioning
witnesses, and may be unable to remain impartial when questioning
them since she is emotionally invested in this case.3]
ANSWERS 547
Back to contents
I have provided one reason why Kris may need legal I have provided a second way in which equality is achieved
practitioners at trial.1 by legal practitioners.3
I have provided an example from the scenario and I have provided one way in which equality is not achieved
linked it to my chosen reason why Kris may need by legal practitioners.4
legal practitioners.2
I have provided a second way in which equality is not
I have provided information about my chosen reason.3 achieved by legal practitioners.5
I have used signposting in my response, such as I have provided one way in which access is achieved
‘One reason’. by legal practitioners.6
I have provided a second way in which access is achieved

by legal practitioners.7
Extended response
I have provided one way in which access is not achieved
10. Achieved: I; IV; V; VI
Not achieved: II; III
11. [Legal practitioners in a civil dispute can facilitate the achievement back to the question.9
of equality and access to a great extent, however, there are some
limitations such as the associated costs and the quality of legal I have used paragraphs to organise my response.
representation.1]
[One way equality can be achieved in a civil dispute is through the
parties’ equal opportunity to choose their own legal representation. and ‘Another way’.
This means that parties have the same capacity to select and work
I have used connecting words, such as ‘However’,
with lawyers who are suited to their needs and able to assist them
‘Furthermore’, and ‘Therefore’.
throughout the legal proceedings.2][Another way legal practitioners
uphold the principle of equality is that judges or magistrates in a civil
dispute have a duty to assist a self-represented litigant by informing
them about legal practices and proceedings involved in the dispute. Linking to previous learning
This can ensure a self-representing party is not at such a significant
disadvantage to a party who has legal representation.3][However, 12. [One reason why legal practitioners are needed in a civil dispute is to
some financially-disadvantaged parties may not be able to afford any ensure documents are properly drafted and handled. In civil disputes,
legal representation, or may only be able to afford poor quality legal affidavits and subpoenas may be required to receive evidence relevant
to the case. Therefore, a legal practitioner can ensure these documents
practitioners.4][Moreover, though judges and magistrates have a duty
to assist self-represented parties, their assistance is limited as they are managed appropriately and according to procedural standards.1]
cannot provide advice and must remain objective. Therefore, without [On the other hand, one reason why legal practitioners are needed
legal representation, or low-quality representation, there may be in a criminal case is to help provide support to an accused when
unequal footing in the courtroom which can be disadvantageous being questioned by police during an investigation or during a court
to one party.5] hearing.2][One key difference between the need for legal practitioners
in a criminal case, and the need for them in a civil dispute, is that whilst
[Furthermore, legal practitioners can uphold access to justice as they lawyers of an accused found guilty of an offence may have to inform
assist parties in preparing and presenting their case. This enables the judge of mitigating factors that may reduce the severity of their
a party to better understand the law and legal proceedings, allowing client’s sentence, a lawyer of a defendant in a civil dispute will not have
them to better engage with the justice system.6][Additionally, legal to do so as a defendant will not receive a sanction for their civil wrong
practitioners can promote access through their ability to assist with but may be ordered to fulfil a remedy, such as providing damages
the appeals process. Lawyers can complete the paperwork for the to the plaintiff, instead.3]
appeal and can prepare and present arguments for the party during
the appeal.7][However, the costs of legal practitioners for both parties I have provided one reason why legal practitioners are
are high, meaning legal representation is less accessible and parties needed in a civil dispute.1
may be forced to self-represent which can be difficult and limit access
to justice.8] I have provided one reason why legal practitioners are
needed in a criminal case.2
[Therefore, although there are some limitations in obtaining legal
practitioners, such as the associated costs, they can still promote the I have provided one key difference between the need for
achievement of equality and access in a civil dispute by assisting their legal practitioners in a civil dispute and a criminal case.3
client to understand legal processes and present their client’s case
in the best light.9] I have used signposting in my response, such as
5F ANSWERS
the use of legal practitioners upholds the principles of I have used comparison words, such as ‘On the other hand’,
justice in civil disputes.1 when distinguishing.
I have provided one way in which equality is achieved

548 ANSWERS
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5G Class actions Extended response

9. Strengths: I; II; V
Check your understanding Limitations: III; IV
1. B. False. Explanation: Class actions are only used in civil cases, not 10. [Class actions uphold the principles of access and fairness to
criminal cases. a large extent. Although, in certain circumstances, these principles
may be limited.1]
2. B. False. Explanation: Class actions are heard in the Federal Court
and the Supreme Court of Victoria and are not heard in the County [One way class actions achieve fairness is by providing a potential
Court of Victoria. remedy for those who have suffered a loss that would be too
small to recover individually in the courts, thus, enabling these
3. The person who initiates the proceedings on behalf of the entire individuals to participate in the justice system, promoting fairness.2]
group is known as the lead plaintiff.
[Furthermore, another way fairness is achieved is class actions are
managed by experienced and impartial judges consequently leading
4. C. Explanation: Customer malpractice is not a type of case appropriate
for a class action. to and ensuring a fair trial.3]
[However, one way fairness is limited is it can depend on the

5. Strengths: I; II settlement reached. If the amount of compensation received is
Limitations: III less than anticipated, the group members may not be compensated
6. Class actions save the courts’ time and resources by grouping together sufficiently.4][Another way fairness may be limited is the lead
numerous claims, reducing the number of cases the court would have plaintiff is required to assume the risk and cost of the litigation
to hear individually and, thus, promoting access. on behalf of the entire group which may be seen as unfair.5]
[Furthermore, one way access is upheld by class actions is that

individuals can still access justice and the legal system without all
Preparing for exams
of the costs associated with a trial if they have a valid claim.6]
Standard exam-style [Since the costs are bared by the lead plaintiff, or third-party litigation
funders, this reduces the financial impact of a civil claim for the
7. [One reason for using class actions is that joining a class action majority of plaintiffs, allowing members to access justice regardless
may be more appropriate than initiating an individual claim as it can
of socioeconomic status.7][Moreover, class actions save the court
be more cost effective.1][Group members of a class action are not time and resources by grouping numerous claims together, reducing
responsible for the costs associated with the trial or adverse cost the number of cases the court would have to hear individually, and
orders.2][Therefore, class actions are significantly less expensive therefore, promoting access.8]
and stressful than an individual civil claim, whilst they provide more
people with greater access to the civil justice system.3] [However, one way class actions may limit the achievement of access
is they can be extremely costly and third-party funders are often
I have provided one reason for using class actions.1 required. This results in a portion of the damages being provided to
litigation funders, reducing the extent to which group members can
I have provided information about my chosen reasons.2 access justice via compensation.9]

[Whilst class actions uphold the principles of fairness and access,
some class actions may be hindered by cost factors.10]
chosen reason.3
I have used signposting in my response, such as I have provided an introduction to summarise my answer
‘One reason’. to the question.1
I have used connecting words, such as ‘Therefore’. I have provided one way fairness is upheld by class actions.2
I have provided a second way fairness is upheld

8. [The first criterion for a class action to be considered by the court by class actions.3
is that there are seven or more group members who were harmed
by the same defendant(s).1][Secondly, the claim must arise from the I have provided one way fairness is limited by class actions.4
same or similar circumstances for all group members.2][Finally, the
I have provided a second way fairness is limited
third criterion for initiating a class action is that the claim must give
by class actions.5
rise to a common issue of law or fact, meaning the court will decide
the same set of facts for all claims.3] I have provided one way access is upheld by class actions.6
I have provided one criterion for a class action.1 I have provided further information about my chosen way
access is upheld by class actions.7
I have provided a second criterion for a class action.2
5G ANSWERS
I have provided a second way access is upheld

I have provided a third criterion for a class action.3 by class actions.8
I have used signposting in my response, such as ‘The first I have provided one way access is limited by class actions.9
criterion’, ‘Secondly’, and ‘Finally’.
ANSWERS 549
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5. A; C. Explanation: CAV’s website provides information that is

accessible to all to promote a fair and competitive marketplace.
However, it does not have the power to impose a legally binding
decision on parties as it uses conciliation. CAV also has limited
‘One way’ and ‘another way’.
jurisdiction and can only assist with certain types of disputes.
6. Strengths: III; V
and ‘However’.
Limitations: I; II; IV
7. CAV predominantly uses conciliation as a method of resolving civil

Linking to previous learning disputes that fall within its jurisdiction.
11. [The first error in the scenario is that the class action will be heard Preparing for exams
in the Magistrates’ Court. ][Class actions can only be heard in the
1
Federal Court or the Supreme Court of Victoria. ] 2

Standard exam-style
[The second error in the scenario is that Slay on the Seas has the 8. [One reason why Consumer Affairs Victoria (CAV) may not be
burden of proof. ][The passengers are initiating the claim, and the lead
3
appropriate in Jordy’s case is that CAV does not have the power
plaintiff will have the onus to prove that Slay on the Seas is liable. ] 4
to impose a legally binding solution.1][As CAV primarily uses
[The third error in the scenario is that the passengers are seeking conciliation to resolve disputes, Jordy and his landlord could only
to fine Slay on the Seas. ][Fines are criminal sanctions that do not
5 agree on a non-binding resolution to the dispute, unless a deed
apply to any civil cases or class actions. The passengers would of settlement is entered into.2][Therefore, as Jordy wants a legally
instead be seeking financial compensation in the form of damages.6] binding solution, in relation to seeking compensation for his injuries,
CAV may not be appropriate in resolving this dispute.3]
I have identified one reason why CAV may not be the
I have provided the correct procedure for the first error most appropriate body to resolve this dispute.1
in the scenario.2
I have provided information about my chosen reason why
I have identified the second error in the scenario.3 CAV may not be appropriate.2
I have provided the correct procedure for the second I have provided an example from the scenario and linked
error in the scenario.4 it to the theory.3
I have identified the third error in the scenario.5 I have used signposting in my response, such as
‘One reason’.
I have provided the correct procedure for the third error
in the scenario.6 I have used connecting words, such as ‘Therefore’.

9. a. [One purpose of Consumer Affairs Victoria (CAV) is to provide
I have used signposting in my response, such as information and advice to businesses, consumers, tenants, and
‘The first error’ and ‘The second error’. landlords in relation to their rights and responsibilities, as well as
any changes to relevant laws.1][CAV’s website contains a detailed
step-by-step guide on how individuals should attempt to resolve
their complaints on their own, before seeking dispute resolution
5H C
onsumer Affairs services from CAV.2]
Victoria (CAV) I have provided one purpose of CAV.1
I have provided information about my chosen purpose

Check your understanding of CAV.2
1. A. True. Explanation: CAV is capable of resolving certain types I have used signposting in my response, such as
of civil disputes based on its given jurisdiction, established by various ‘One purpose’.
Victorian statutes.
2. B. Explanation: CAV will not assist with disputes from businesses b. [One reason why Consumer Affairs Victoria (CAV) is appropriate
and landlords. in Atticus’ case is that the dispute between Atticus and Caterina
has a high chance of being resolved, as they have been friends for
3. C. Explanation: CAV’s processes, such as directing parties to
10 years.1][CAV uses a conciliation process to resolve disputes
conciliation, aim to help the parties resolve the disputes themselves
and would involve Atticus and Caterina reaching an agreement
5H ANSWERS
with the assistance of a conciliator, as this dispute resolution body

themselves, with the help of a conciliator.2][Another reason why
has no power to impose a legally binding decision.
CAV is appropriate is that the conciliation process offered by CAV
4. A; D. Explanation: CAV provides free dispute resolution services is free.2][As Atticus is an unemployed university student, he may
to parties with a claim that falls within its jurisdiction. However, not be able to afford alternative institutions, such as the courts,
as CAV has limited resources, it will only assist with disputes that which can be expensive. Hence, CAV provides an accessible
have a high chance of success and parties must have tried to resolve means of dispute resolution for Atticus.4]
the dispute themselves.
550 ANSWERS
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I have identified one reason why CAV is an appropriate I have used signposting in my response, such as
institution to help Atticus resolve this dispute.1 ‘One reason’ and ‘another reason’.
I have provided information about my chosen reason I have used connecting words, such as ‘Furthermore’
why CAV is appropriate.2 and ‘However’.
I have identified a second reason why CAV is an

appropriate institution to help Atticus resolve 12. Strengths: II; III; VI
this dispute.3 Limitations: I; IV; V
I have provided information about my chosen reason 13. [CAV helps the civil justice system achieve the principles of fairness
why CAV is appropriate.4 and equality to a large extent, as it directs parties to an impartial
conciliator that facilitates dispute resolution. However, CAV is
I have used signposting in my response, such as somewhat limited in its ability to achieve these principles of justice.1]
‘One reason’ and ‘Another reason’.
[Firstly, CAV can promote the achievement of fairness as its
conciliation process enables parties to attempt dispute resolution
themselves with the assistance of a conciliator, which may lead
Extended response to a fair outcome where both parties agree on a resolving decision.2]
10. Appropriate: I; II
[Another way CAV achieves fairness is through its free services,
which can ensure parties that are unable to afford a court hearing
Not appropriate: III; IV
are still able to receive a just outcome to their dispute.3][Moreover,
CAV’s use of conciliation can promote the achievement of equality,
11. [As CAV is free and less time-consuming than taking the matter as the conciliator is required to facilitate discussions between
to the courts, it is appropriate for resolving the dispute between
parties, providing both parties with equal opportunity to present
Ivy and Bedroom Bliss, unless it becomes a class action.1]
their perspective and reach a mutually beneficial resolution.4]
[One reason why CAV is appropriate is that Ivy’s dispute falls within
CAV’s jurisdiction, which has the power to assist with disputes [However, CAV may limit the achievement of fairness as it cannot
force parties to attend and participate in conciliation, which may
between consumers and businesses, like Ivy and Bedroom Bliss.2]
be unfair if one party is willing to reach a resolution, whilst the
[Furthermore, another reason why CAV is appropriate is that it is free other is not.5][Another limitation of CAV achieving fairness is that
and offers efficient dispute resolution processes, such as conciliation,
it cannot impose a legally binding resolution, meaning there is a risk
whereby Ivy and Bedroom Bliss would attempt to resolve the dispute
that an agreement reached during conciliation will not be upheld,
either in person or over the phone. This is beneficial for Ivy as she
limiting the achievement of a fair outcome.6][Furthermore, the
is hesitant about spending her time and money attempting to resolve
achievement of equality may also be limited as CAV’s jurisdiction
the dispute.3]
restricts it to only being used in a small proportion of civil matters.
[However, CAV may not be appropriate if the case becomes Thus, the ability to access CAV’s services is not given equally to all
a class actions, as it is unable to resolve such disputes. As 15 other civil parties.7]
people have come forward with similar stories about Bedroom Bliss’
refusal to offer refunds, Ivy may be able to initiate a class action, [Overall, CAV’s conciliation process helps achieve fairness and
equality by assisting parties in resolving their dispute. However,
in which only the court has the jurisdiction to assist with these kinds
CAV has no power to compel parties to attend conciliation and
of disputes.4][CAV may also not be appropriate in this case as it is
is unable to do so for all cases due to its jurisdiction, thus limiting
unable to impose a legally binding decision, meaning CAV cannot
the achievement of fairness and equality.8]
force Bedroom Bliss to provide Ivy with a refund.5]
[Overall, Ivy’s dispute is appropriate for CAV, unless it becomes a I have provided an introduction to answer the question.1
class action, as the dispute falls within its jurisdiction and it is free. 6
]
I have provided one strength of CAV in achieving the
I have provided an introduction to my response.1 principle of fairness.2
I have provided one reason why CAV is appropriate I have provided a second strength of CAV in achieving
to resolve the dispute between Ivy and Bedroom Bliss.2 the principle of fairness.3
I have provided a second reason why CAV is appropriate I have provided one strength of CAV in achieving the
to resolve the dispute between Ivy and Bedroom Bliss.3 principle of equality.4
I have provided one reason why CAV is not appropriate I have provided one limitation of CAV in achieving the
to resolve the dispute between Ivy and Bedroom Bliss.4 principle of fairness.5
I have provided a second reason why CAV is not I have provided a second limitation of CAV in achieving
appropriate to resolve the dispute between Ivy and the principle of fairness.6
Bedroom Bliss.5
5H ANSWERS
I have provided one limitation of CAV in achieving the

I have provided a conclusion to my response that links principle of equality.7
I have used paragraphs to organise my response. back to the question.8
ANSWERS 551
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I have used signposting in my response, such as ‘Firstly’ 5I T

he Victorian Civil
and ‘Another way’.

and Administrative
and ‘Moreover’. Tribunal (VCAT)
1. B. False. Explanation: VCAT has a limited jurisdiction, meaning
14. a. [ One reason for using class actions is to reduce the costs that it can only hear certain types of disputes, such as residential
for plaintiffs as multiple claims are made in one proceeding, tenancies disputes.
rather than as separate proceedings.1][This means Daisy and
the 10 other tenants can initiate one proceeding together, 2. C. Explanation: VCAT does not have the jurisdiction to hear personal
which avoids having multiple court cases that would each have injury cases, meaning individuals must turn to an alternative
to be defended.2][As a result, Daisy and the 10 other tenants can institution, such as the courts.
split legal costs equally, rather than each individual having the
3. B; C. Explanation: If parties have not come to a resolution during
burden of paying their own legal costs.3]
mediation or a compulsory conference, VCAT will impose a legally
binding decision on the parties.
I have provided one reason for using class actions.1
4. A; C. Explanation: VCAT provides low-cost and efficient dispute
I have provided an example relevant to the scenario
resolution processes and is less formal than the courts as parties
and linked it to class actions.2
do not require legal representation. Therefore, VCAT is less
time-consuming and expensive.
I have provided information about my chosen reason
for using class actions.3 5. Strengths: I; IV; V
‘One reason’. 6. B. Explanation: VCAT is not suitable for large, complex cases,
such as class actions or those involving complex legal issues.
7. B. False. Explanation: VCAT only has the power to hear certain types
of civil disputes, as all criminal matters are heard by the courts.
b. [Although this dispute falls within CAV’s jurisdiction, it is
unlikely to be an appropriate body to help Daisy resolve this
dispute if she decides to initiate a class action.1] Preparing for exams
[One reason CAV may not be appropriate is that it does not Standard exam-style
have the jurisdiction to resolve class actions, meaning, if Daisy
commences a group proceeding with the other 10 tenants, she 8. [One purpose of the Victorian Civil and Administrative Tribunal
cannot use this institution to resolve the dispute with Max.2] (VCAT) is to provide low-cost dispute resolution services. ] 1
[However, if Daisy does not wish to initiate a class action against [This is achieved as VCAT fees are low and there is no requirement
Max, CAV may be appropriate, as the dispute falls within CAV’s for parties to have legal representation, reducing the costs involved
jurisdiction of resolving disputes between landlords and tenants.3] in the civil dispute.2][This upholds the principle of access as more
people may be able to afford to access this institution that can
[Another reason why CAV may not be appropriate is it uses provide justice and remedies for a civil dispute.3]
a conciliation process to encourage parties to resolve the dispute
themselves with the assistance of a conciliator, meaning this
I have provided one purpose of VCAT.1
institution does not have the power to impose a legally binding
decision on her and Max.4] I have provided information about my chosen purpose.2
I have provided an introduction to my response.1 I have provided one way my chosen purpose upholds the
principle of access.3
I have provided one reason why CAV is not
appropriate to help Daisy resolve her dispute.2
9. [One reason why the Victorian Civil and Administrative Tribunal
I have provided one reason why CAV is appropriate (VCAT) may not be appropriate is that Michael does not appear
to help Daisy resolve her dispute.3 to be willing to negotiate with Kerry to try to resolve their dispute.1]
I have provided a second reason why CAV is not

[This indicates that VCAT may not be appropriate as the tribunal
utilises mediation and compulsory conferences as dispute resolution
appropriate to help Daisy resolve her dispute.4
methods, which both require the parties to discuss the dispute with
one another.2][Moreover, as neither of these methods involves VCAT
5I ANSWERS

imposing a legally binding decision on Kerry and Michael, it may
I have used signposting in my response, such as be unsuccessful in providing a resolution to the dispute as Michael
‘One reason’ and ‘Another reason’. could go back on his word and not fulfil his promises.3]
552 ANSWERS
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why VCAT is appropriate is that Brisa and Tony’s dispute falls within
I have provided one reason why VCAT may not be
VCAT’s jurisdiction as it has the power to hear disputes between
an appropriate institution to resolve Kerry’s dispute.1
residential landlords and tenants. As Brisa is a tenant complaining
about cracks in the wall to Tony, her landlord, this institution is
it to the theory.2 appropriate for the dispute.5][Finally, a third reason why VCAT
is appropriate is it offers lower-cost dispute resolution services
I have provided further information about my when compared with the courts for Brisa as she cannot afford
chosen reason.3 to initiate her claim through the courts.6]

[Overall, despite Brisa possibly incurring some costs from taking her
dispute with Tony to VCAT, this institution is appropriate as it imposes
‘One reason’.
a final, binding decision, is lower cost than the courts, and the dispute
I have used connecting words, such as ‘Moreover’. falls within its jurisdiction.7]

10. [One method of dispute resolution that the Victorian Civil and
Administrative Tribunal (VCAT) may use is mediation, which I have provided one reason why VCAT may not be
is a non-judicial dispute resolution method involving an independent appropriate in resolving the dispute between Brisa
third party, known as a mediator, who facilitates conversations and Tony.2
between disputing groups.1][VCAT may direct SuperHeroes R Us
and Henry to resolve their dispute in the presence of a mediator,
chosen reason.3
who may be a VCAT member or a mediator appointed by VCAT.
The parties are in control of the process and the mediation facilitates
I have provided one reason why VCAT may be
a negotiated outcome.2][Another method of dispute resolution appropriate in resolving the dispute between Brisa
is a compulsory conference, which is a private meeting between and Tony.4
the parties to discuss ways to resolve their civil dispute with the
assistance of a VCAT member.3][The compulsory conference uses I have provided a second reason why VCAT may be
a conciliation process whereby the conciliator possesses specialised appropriate in resolving the dispute between Brisa
knowledge of the dispute between SuperHeroes R Us and Henry and Tony.5
and therefore, is able to offer suggestions and solutions to the
parties, who negotiate towards a settlement.4] I have provided a third reason why VCAT may be
appropriate in resolving the dispute between Brisa
I have identified and defined one method of dispute and Tony.6
resolution that VCAT may use.1
I have provided information about my chosen method.2 back to the question.7
I have identified and defined a second method of dispute I have used paragraphs to organise my response.
resolution that VCAT may use.3
I have provided information about my chosen method.4 ‘One reason’, ‘Another reason’, and ‘a third reason’.
I have linked my answer to the scenario where appropriate. I have used connecting words, such as ‘However’
and ‘Finally’.
‘One method’ and ‘Another method’.
Extended response 13. B; C
11. Appropriate: I; II; IV 14. [I agree with the statement that the Victorian Civil and Administrative
Not appropriate: III Tribunal (VCAT) is a more appropriate body than Consumer Affairs
Victoria (CAV) to a large extent. This is because VCAT can impose
12. [The Victorian Civil and Administrative Tribunal (VCAT) is mostly a legally binding decision, is efficient, and is more formal than CAV.1]
appropriate for Brisa and Tony as it is cheaper and can offer a legally
binding solution to parties. Although, both parties may still incur [Firstly, VCAT is more appropriate than CAV as Hazel and Kabir
have already tried conciliation through the Domestic Building
some costs from going to VCAT which may be difficult for Brisa
Dispute Resolution Victoria (DBDRV) which failed.2][As CAV
given her financial circumstances.1]
directs all matters to conciliation to help parties to resolve their
[One reason why VCAT may not be appropriate is some fees for dispute and does not hold hearings, it is unlikely that this will be
certain types of claims at VCAT remain high, often due to application effective for Kabir and Hazel, as Kabir has not previously taken
5I ANSWERS
and hearing fees.2][This may make VCAT inaccessible for Brisa who negotiations seriously.3][Alternatively, VCAT can offer Hazel and
may be unable to afford VCAT.3] Kabir a legally binding solution to their dispute during a hearing,
which will benefit Hazel who wishes to resolve the dispute as soon
[However, if Brisa and Tony fail to negotiate a resolution during as possible.4][Another reason why VCAT is more appropriate is in
mediation or a compulsory conference, VCAT may be appropriate
their final decision, the VCAT member conducting the hearing may
as it can conduct a final hearing whereby a VCAT member will
impose an order, such as for Kabir to pay Hazel a sum of money for
impose a legally binding solution on the parties.4][Another reason
the number of errors, or requiring Kabir to fix the errors himself.5]
ANSWERS 553
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[This is more appropriate than CAV as this institution cannot 2. A; C; D. Explanation: Judges must remain impartial and independent,
impose orders on each party, as the conciliation process requires making decisions solely based on the evidence presented.
parties to negotiate a resolution to their dispute themselves, which
3. C. Explanation: If parties wish to have more control over the outcome
is not legally binding unless a deed of settlement is entered into.6]
of a dispute they should consider engaging in more informal and
[Furthermore, a third reason why VCAT is appropriate is it provides flexible dispute resolution methods, such as mediation or conciliation,
efficient dispute resolution services, as delays are significantly given the courts impose legally binding resolutions that leave parties
less than other institutions such as the courts, which is suitable with little control over the outcome.
for Hazel who wants the despite resolved as soon as possible.7]
4. One purpose of the courts is to provide the disputing parties with
[Finally, VCAT is more appropriate as the processes and procedures a remedy. This can come in the form of damages, which is monetary
are more formal compared to CAV.8][This is suitable as Kabir failed
compensation, or an injuction, which is a court order to do or not
to take the conciliation seriously, meaning that a more formal
do something. Both are legally binding and enforceable.
hearing is appropriate as this requires the parties to present their
case, such as by presenting evidence and legal arguments.9] 5. Strengths: I; II; V
[Overall, VCAT is better suited to hear the dispute between Kabir
and Hazel due to its ability to impose a legally binding decision and
6. A. Explanation: Courts are not free and there are a range of fees
its efficient and more formal processes.10]
associated with taking a case to court. Court hearings can also
be time consuming due to the backlog of cases.
Preparing for exams
I have provided one reason why CAV is not an appropriate
body to resolve this dispute.2 Standard exam-style
I have provided information about my chosen reason.3 7. [One purpose of the courts is to provide access to a trial by jury.
The courts are the only dispute resolution body where a jury may
I have provided one reason why VCAT is an appropriate be used to determine liability.1][If parties wish to utilise a jury
body to resolve this dispute.4 in a civil trial, they must fund the jury. However, the use of a jury
can ensure the outcome of the case is determined by a cross-section
I have provided a second reason why VCAT is an of the community and reflects wider social views and values.2]
appropriate body to resolve this dispute.5
I have provided one purpose of the courts in resolving
I have provided a second reason why CAV is not an civil disputes.1
I have provided information about my chosen purpose.2
I have provided a third reason why VCAT is an
appropriate body to resolve this dispute.7 I have used signposting in my response, such as
‘One purpose’.
I have provided a fourth reason why VCAT is an
8. [The courts may not be appropriate for Randy and Jeanie’s dispute as
I have provided information about my chosen reason.9 Randy wishes to negotiate with Jeanie and reach a mutually agreed
resolution.1][As the remedy of a civil court case is determined by the
I have provided a conclusion to my response that links judge or magistrate, and is legally binding and enforceable, the courts
back to the question.10 are not appropriate for parties who wish to have more control and
influence over the final outcome.2][Rather, Randy should consider
engaging with other dispute resolution bodies, like VCAT, that use
dispute resolution methods, such as mediation, that are low cost and
allow the parties to openly discuss and negotiate a resolution.3]
‘Another reason’ and ‘a third reason’. I have provided one reason why the courts may not
be appropriate for Randy and Jeanie’s dispute.1
I have used connecting words, such as ‘Firstly’
and ‘Alternatively’. I have provided information about my chosen reason.2

it to my chosen reason.3
5J R
esolving civil disputes I have used connecting words, such as ‘Rather’.
in the courts
5J ANSWERS
9. a. [ One purpose of the courts is to provide an avenue for class

Check your understanding actions to be determined.1][Given Hiroshi is considering filing a
class action against Gustro’s Greek Gastronomy, the courts would
1. A. True. Explanation: The main dispute resolution method used be the only body that can resolve the dispute as class actions fall
in the courts is judicial determination, which is when a judge or within the jurisdiction of the Supreme Court – Trial Division.2]
magistrate imposes a legally binding decision on the parties.
554 ANSWERS
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[Furthermore, the justices of the Supreme Court –Trial Division Kapua will have the ability to present any evidence they have, such
are equipped with the experience and knowledge to hear and as photo evidence or receipts, of Jessie’s unwillingness to cooperate,
determine class actions, which can ensure Hiroshi and the other and the court will determine whether Jessie is liable even if he
group members access justice in an effective and efficient manner.3] is unwilling to accept his responsibilities. The courts can ensure
procedural fairness is upheld through their ability to give directions
I have provided one purpose of the courts that can and responsibilities in managing the case.5]
assist in resolving civil disputes.1
[However, the achievement of fairness may also be limited due
to the costly and time-consuming nature of a court trial. ][Given the
6
I have provided information about my chosen purpose. 2
formalities and procedures involved in a court case, this could delay
I have provided further information about my justice for Kapua and result in a prolonged dispute, increasing the
chosen purpose.3 risk of an unfair trial.7]
[Additionally, if a jury is used, a fair outcome could be compromised

due to the lack of legal knowledge and experience jurors possess. ] 8
appropriate.
[Although judges attempt to mitigate such risks through their
I have used signposting in my response, such as directions and responsibilities, jurors may still be influenced by their
‘One purpose’. subconscious biases and could be easily confused by the complex
legal terminology and procedures. Jessie and Kapua may also have
I have used connecting words, such as ‘Furthermore’. very skilled legal representatives that can easily influence a jury,
if one is used, which can jeopardise the delivery of a fair outcome.9]
b. [The courts would be the most appropriate body to hear and [Therefore, fairness can be achieved by the courts in Kapua and
Jessie’s dispute, however, there are also limitations in their ability
determine Hiroshi’s case, as the courts are the only body that
to do so due to time and cost factors, as well as considerations
can resolve class action disputes.1][Specifically, the Supreme
of juror capabilities.10]
Court - Trial Division has the jurisdiction to hear class actions
and the judges of the court have the expertise and specialise
I have provided an introduction to state the extent
in the laws and court procedures involved with such matters.2]
to which fairness can be achieved if Kapua and Jessie’s
[Therefore, if Hiroshi decides to initiate a class action with the dispute is resolved by the courts.1
other complainants against Gustro’s Greek Gastronomy, the
courts are the only body that can determine the matter, as no I have provided one way fairness can be achieved
other civil dispute resolution body has the power to preside over by the courts.2
these types of proceedings.3]
I have provided one reason why the courts would be the
most appropriate body to hear Hiroshi’s class action.1 I have provided a second way fairness can be achieved
by the courts.4
I have provided information about the courts and class
action lawsuits.2 I have provided information about my chosen reason.5
I have provided information about the appropriateness I have provided one way fairness may not be achieved
of the courts and Hiroshi’s case.3 by the courts.6
I have used connecting words, such as ‘Therefore’. I have provided information about my chosen reason.7
I have provided a second way fairness may not be achieved

by the courts.8
Extended response
11. [The principles of fairness can be achieved to a moderate extent in
Kapua and Jessie’s dispute. ] 1
[Firstly, fairness can be achieved if Kapua and Jessie decide to
take their dispute to court as the matter will be decided by an I have used paragraphs to organise my response.
independent and impartial judge, who can impose a fair and legally
binding resolution on the parties.2][Given Jessie has not taken I have used signposting in my response, such as ‘Firstly’
negotiations seriously, the courts may be the most appropriate and ‘Secondly’.
body to resolve their dispute, as the judge can impose a legally
enforceable remedy if Jessie is found liable, therefore delivering
5J ANSWERS
justice and a fair outcome to Kapua.3]
[Secondly, both Jessie and Kapua will have the opportunity to

present evidence at a court trial and will be subject to the same
laws and processes, encouraging procedural fairness.4][This means
ANSWERS 555
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civil disputes.9]
12. [One purpose of the courts is to provide a legally binding outcome I have provided an introduction to summarise the extent
to the disputing parties. This means the outcome of the case is to which I agree or disagree with the statement.1
legally enforceable, meaning a party that fails to comply with the
I have provided one reason why the courts can be the
ordered remedy could face legal consequences.1][On the other
most appropriate body to determine civil disputes.2
hand, one purpose of Consumer Affairs Victoria (CAV) is to provide
information and advice to businesses, consumers, tenants, and
landlords about their rights and responsibilities to assist them in
resolving their disputes, whilst also conducting conciliation as a I have provided a second reason why the courts can be
dispute resolution method.2][Therefore, a key difference between the most appropriate body to determine civil disputes.4
the purposes of the courts and CAV is the extent to which they can
impose a remedy. Whilst the courts can impose a legally binding I have provided one reason why VCAT can be the most
decision, CAV facilitates discussion between the parties and provides appropriate body to determine civil disputes.5
them with advice that assists them in reaching an agreement. Such
an agreement is not legally binding unless a terms of settlement I have provided a second reason why VCAT can be the
is signed.3] most appropriate body to determine civil disputes.6
I have provided information about one purpose I have provided one reason why CAV can be the most
of the courts.1 appropriate body to determine civil disputes.7
I have provided information about one purpose of CAV.2 I have provided a second reason why CAV can be the
most appropriate body to determine civil disputes.8
I have provided one key difference between the purposes
of the courts and CAV as dispute resolution bodies.3 I have provided a conclusion to my response that links
‘One purpose’ and ‘a key difference’. I have used paragraphs to organise my response.
I have used comparison words, such as ‘On the other hand’, I have used signposting in my response, such as ‘Firstly’.
when distinguishing.
13. [I agree with this statement to a moderate extent. Whilst the courts
can be an effective means of resolving civil disputes, the Victorian
Civil and Administrative Tribunal (VCAT) and Consumer Affairs
Victoria (CAV) are more appropriate in certain circumstances.1] 5K T
he impact of cost and
[Firstly, the courts are most appropriate for disputes where the parties
prefer to have an independent and experienced judge, or magistrate,
time – civil disputes
impose a legally binding decision.2][Unlike the other dispute resolution
bodies, which do not always impose a legally binding remedy, a Check your understanding
magistrate or judge will hand down a final decision at the conclusion
of the case that is legally enforceable.3][The courts are also most 1. A. True. Explanation: High costs and extensive delays may discourage
appropriate for larger and more complex disputes, like class actions, or prevent parties from initiating a civil claim, prohibiting the
as judges have the knowledge and experience to deal with such achievement of the principles of justice.
matters, or in cases where parties may wish to seek an appeal.4] 2. A; B; D. Explanation: Witness fees are not a source of delay and
[However, VCAT can be more appropriate for resolving civil disputes in they instead contribute to the costs of a civil dispute.
some circumstances as it is a low-cost, effective, and efficient tribunal.
As it utilises various dispute resolution methods, VCAT may be more 3. Parties incur high legal costs when resolving civil disputes, such
appropriate for parties who wish to access a more flexible process, as barristers’ fees for the presentation of a civil case at trial.
but also want the option of a final hearing where a VCAT member can Therefore, parties might consider pursuing their civil matter through
VCAT, which provides less costly dispute resolution methods.
impose a final order.5][VCAT also has exclusive jurisdiction in various
areas, such as domestic building disputes, meaning it is the only body 4. Strengths: II; IV
that can determine such matters.6] Limitations: I; III
[Additionally, CAV can also be an appropriate body, especially for 5. A; C; E. Explanation: Access to legal representation is not readily
disputes filed by tenants and consumers seeking a cost-free resolution.
available to the majority of the population as there are often significant
CAV utilises conciliation when resolving disputes, therefore it can
financial constraints. Court backlogs exist, making it highly unlikely
be greatly effective in cases where parties wish to have greater control
that a case would be heard and resolved within a week of being
over the final outcome and have their negotiations assisted and
5K ANSWERS
initiated. There are also a range of civil pre-trial procedures that must
informed by an independent conciliator.7][CAV is also significantly
occur before a hearing, which take a considerable amount of time.
less costly than the courts, so it may be most appropriate for parties
seeking a low to no cost dispute resolution body that deals with 6. As trials rely on oral evidence, court delays may impact the
consumer affairs.8] accuracy and reliability of evidence, increasing the chances
of an unjust outcome.
[Therefore, whilst the courts can be the most appropriate body
to resolve some civil disputes, VCAT and CAV are both less costly
and more time-efficient bodies that can also effectively resolve
556 ANSWERS
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Preparing for exams I have provided one strength of Cleopatra’s campaign

in its ability to achieve the principle of access.3
Standard exam-style
I have provided one limitation of Cleopatra’s campaign
7. [One impact of costs during a civil dispute is that they may deter in its ability to achieve the principle of access.4
or prevent individuals from initiating a civil claim. ][This is because
1
not all individuals can afford the high expenses associated with I have provided information about my chosen limitation.5
a civil dispute, such as paying fees for legal representation and
other court fees.2] I have used paragraphs to organise my response.
I have identified one impact of costs during a civil dispute.1 I have used connecting words, such as ‘Therefore’
and ‘However’.
I have provided information about my chosen impact.2
I have used signposting in my response, such as 11. Strengths: I; III

‘One impact’. Limitations: II; IV; V
12. [I agree with this statement to a large extent as, although judicial
8. [One reason for court delays in civil cases is due to court backlogs, powers of case management reduce delays, the time it takes for
which add to the time it takes for civil cases to be heard. ][Court
1 a civil dispute to be heard may deter or prevent individuals from
backlogs are caused by the courts’ caseload growing more rapidly initiating a civil claim, or force parties to settle their dispute.1]
than the availability of the resources needed to resolve a court
case.2][Furthermore, another reason for delays is due to slow trial
[Firstly, judges can use their powers of case management to enhance
access and fairness within the civil justice system. ][By giving parties
2
procedures.3][For example, legal practitioners’ oral arguments and

certain directions, judges can reduce the time taken to resolve a civil
the examination of witnesses can be time-consuming, increasing
dispute and encourage procedural fairness, ultimately resulting in a
the time involved in resolving a case.4]
swift and efficient resolution of the case.3][Access to justice can also
be facilitated by a judge’s power to order mediation.4][Attending
I have identified one reason for court delays in the civil
mediation can result in the early determination of a case and save
justice system.1
the parties and the courts resources, whilst also delivering justice
I have provided information about my chosen reason.2 in a more timely manner.5]
[However, the time it takes for a civil dispute to be heard may deter
I have identified a second reason for court delays in the or prevent individuals from initiating their civil claim, limiting the
civil justice system.3
achievement of access to justice.6][Vulnerable parties are more
likely to be affected by significant court delays as they may not have
the ability to take time off work or other duties for an extended
I have used signposting in my response, such as period if awaiting the resolution of their dispute.7][This means
‘One reason’ and ‘another reason’. parties may be forced to settle their case or withdraw their claim,
potentially compromising the amount of compensation they receive,
I have used connecting words, such as ‘Furthermore’. if any, and limiting access to a just outcome.8]
[Moreover, procedural fairness can be negatively impacted by

court delays, hindering the achievement of a fair trial.9][For more
Extended response vulnerable populations, time delays are particularly detrimental
and can increase the risk of an unfair trial if they are unable to
9. A; B; C adequately present their side of events due to limited resources.10]
10. [If successful, Cleopatra’s ‘Reduce Court Costs’ campaign will

[Additionally, the credibility of evidence can be compromised over
time, which inadvertently increases the risk of an unfair outcome.11]
significantly decrease the costs associated with a civil court
proceeding, allowing more individuals to access justice.1][This is [Thus, despite judicial case management powers having the
because a significant barrier to individuals pursuing civil claims is the ability to minimise delays to a certain extent, court backlogs and
cost associated with resolving a dispute.2][Therefore, by reducing time-consuming tasks can significantly impact the achievement
court fees, such as court filing fees and mediation fees by 20%, this of the principle of fairness and access.12]
campaign can improve the accessibility of the courts and provide
more individuals with access to resolutions for their disputes.3] I have provided an introduction to state the extent to which
[However, this campaign does not address fees for legal
representation, which remain significant, meaning individuals may I have provided one way the civil justice system upholds
still be unable to or uncomfortable in pursuing a case without the achievement of fairness in relation to time.2
legal representation.4][As a result, this limits access to justice as
self-represented parties may be unable to present their case in the I have provided information about my chosen reason.3
5K ANSWERS
best possible light or could be deterred from initiating a claim and

accessing justice in the first place.5] I have provided one way the civil justice system upholds
the achievement of access in relation to time.4
I have provided one impact of Cleopatra’s campaign
on the civil justice system in relation to costs.1 I have provided information about my chosen reason.5
I have provided information about my chosen reason.2 I have provided one way the civil justice system limits
the achievement of access in relation to time.6
ANSWERS 557
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chosen reason.8
I have provided one way the civil justice system limits

the achievement of fairness in relation to time.9
I have provided a second way the civil justice system

limits the achievement of fairness in relation to time.11


and ‘Moreover’.
13. [A class action is a legal proceeding brought by one or numerous

plaintiffs acting for themselves as well as on behalf of a wider group
of people who have a claim with similar facts.1][Class actions reduce
the costs associated with a civil dispute as the costs are divided
among group members, or paid for by litigation funders.2][Therefore,
class actions uphold the principle of access as they allow those who
cannot afford to pursue
an individual civil claim to still access justice by joining a class action.3]
I have defined the term ‘class action’.1
I have provided information about how class actions can

reduce costs.2
I have provided one strength of class actions in upholding

the principle of access.3

5K ANSWERS
558 ANSWERS
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6A Damages as a remedy 10. [One reason Sarala is seeking $5 in damages is to prove that she
is legally right.1][She is seeking $5 in nominal damages, which is
not a significant amount, and will not compensate her for any loss.2]
Check your understanding [The main purpose of nominal damages is to prove a legal point,
rather than to gain as much monetary compensation as possible.3]
1. B. False. Explanation: The role of remedies is to return the plaintiff
to their original position before the civil breach occurred.
I have identified the purpose of damages in Sarala’s case.1
2. A; C; D. Explanation: Nominal damages do not come under
the umbrella of compensatory damages as their aim is not to I have provided an example from the scenario and linked
compensate the plaintiff but to uphold their rights. it to the theory.2
3. B. False. Explanation: General damages compensate for pain and I have provided information about my chosen purpose.3
suffering, factors that have no monetary value and thus cannot
be calculated exactly. I have used signposting in my response, such as
‘One reason’.
4. C. Explanation: The medical costs of the broken arm can be
compensated by specific damages. However, general damages,
not specific damages, compensate for pain and suffering.
11. [Compensatory damages refer to monetary damages that aim to
restore the plaintiff to their original position had the breach not been
5. Aggravated damages aim to compensate for humiliation. committed.1][On the other hand, the main purpose of exemplary
damages is to denounce the behaviour of the defendant and deter
6. Nominal damages: II; III others from behaving in the same way.2][One key difference between
Contemptuous damages: I; IV the two types of damages is that compensatory damages seek to
compensate the plaintiff and restore them to their original position
7. C. Explanation: The main purpose of damages is to return the
before the breach, whereas exemplary damages do not aim to
plaintiff to their original position before the civil breach occurred.
compensate the plaintiff.3]
Preparing for exams I have provided information about compensatory damages.1
Standard exam-style I have provided information about exemplary damages.2
8. [The main purpose of damages is to return the plaintiff back to I have provided one key difference between
their original position before the civil wrong occurred. ][There are
1
compensatory damages and exemplary damages.3
different types of damages that compensate for different types of
loss, such as property damage, loss of income, pain and suffering, I have used comparison words, such as ‘On the other hand’
or medical expenses.2] and ‘whereas’, when distinguishing.
I have provided one purpose of damages.1

12. [One type of damages that could be awarded to Desiree is general
I have provided information about my chosen purpose. 2 damages.1][This would compensate her for the mental suffering
caused by having her private information shared by Niamh.2][Another
I have used signposting in my response, such as type of damages that could be awarded to Desiree is aggravated
‘The main purpose’. damages.3][This would compensate her for the deliberate humiliation
Niamh caused and would aim to denounce Niamh’s actions.4]
9. [One reason why a plaintiff may be seeking general damages is I have identified one type of damages the judge may
to compensate for an intangible loss. ][General damages aim to
1
award Desiree.1
compensate for pain, suffering, and any other distress caused by a civil
breach that cannot be precisely calculated into a monetary amount.2] I have provided information about my chosen type of
[For example, if a person is physically injured, general damages would damages and linked it to the scenario.2
aim to compensate for the mental distress of not being able to perform
day-to-day tasks, and the physical pain of the injury itself.3] I have identified a second type of damages the judge may
award Desiree.3
I have identified one reason why a plaintiff would
seek general damages.1 I have provided information about my chosen type of
damages and linked it to the scenario.4
I have provided information about general damages.2
I have used signposting in my response, such as ‘One type’
I have provided an example of when general damages and ‘Another type’.
would be appropriate.3
6A ANSWERS

Extended response
‘One reason’.
13. Achieved: II
Not achieved: I; III
ANSWERS 559
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14. [Damages would achieve the purpose of remedies to a moderate Linking to previous learning
damages for her injury.1] 15. [Class actions refer to legal proceedings brought by one or numerous
plaintiffs acting for themselves as well as on behalf of a wider group
[One way the purposes of damages would be achieved is through of people who have a claim with similar facts. In a successful class
specific damages, as they would aim to return Valerie to her original
action, damages are likely to be awarded, however, they must be
position in terms of her finances, compensating her for her medical
expenses. This can be calculated exactly and she would likely shared among the numerous plaintiffs of the class action.1][Since
be able to recoup these funds and return to her original financial there are more than seven plaintiffs in a class action, the damages
position before the injury occurred.2] paid by the defendant must be shared by all the plaintiffs.2]
[This means that each individual plaintiff may not receive enough
[A second way that specific damages could achieve the purpose financial compensation to restore them to their original financial
of remedies is by accounting for lost wages. Valerie will be
position, thus failing to achieve the main purpose of damages.3]
compensated for the time she spent out of work while she was
recovering. Furthermore, since she can no longer coach, the time
[For example, in a class action where many plaintiffs have suffered
financial losses due to large medical expenses, shared damages may
she spent searching for new work may be compensated as well.3]
not be enough to sufficiently cover these medical expenses, leaving
[A third way Valerie could be returned to her original position before each plaintiff to cover some of these costs themselves.4]
the civil wrong was committed is through general damages. These
would aim to compensate for the pain and suffering she endured I have identified the relationship between class actions
she has endured. As Valerie can no longer walk, this would also
be taken into account when deciding the amount of damages.4] I have provided one way class actions affect the ability
of damages to achieve their purposes.2
[However, the pain and suffering incurred by Valerie can only
be compensated partially as money cannot reverse what she has
I have provided information about my chosen way class
endured and pain and suffering cannot be quantified into a precise,
actions affect the ability of damages to achieve their
monetary figure.5][Another limitation of damages in achieving their
purposes.3
Court proceedings are very costly and the damages may only cover I have provided an example and linked it to the
the court filing fees and the cost of legal representation.6] relationship between class actions and damages.4
pain and suffering cannot be quantified and monetary compensation
cannot reverse the harm she endured, damages can likely not fully
restore her to her original position prior to the civil breach.7] 6B Injunctions as a remedy
I have provided an introduction to summarise the extent Check your understanding
of remedies, and why.1 1. A. True. Explanation: Injunctions aim to remedy breaches that have
already occurred, and prevent breaches that may occur in the future.
I have provided one way damages achieve the purposes
of remedies.2 2. C. Explanation: By ordering a restrictive injunction, this prevents
someone from doing an action, such as prohibiting an individual
I have provided a second way damages achieve the from publishing a book.
3. Injunctions are court orders compelling a party to do something, or
I have provided a third way damages achieve the preventing a party from doing something. They aim to either remedy
purposes of remedies.4 a past civil breach or prevent potential civil breaches from occurring.
I have provided one limitation of damages achieving the 4. D. Explanation: Although an interlocutory injunction may force a
purposes of remedies.5 party to do an action, the key aspect of an interlocutory injunction is
the fact that it is temporary.
the purposes of remedies.6 5. Interlocutory injunctions prevent the defendant from acting in a
way that would further the harm, for a specified time frame only.
back to the question.7 6. Damages: II; IV
Injunctions: I; III

my response.
6B ANSWERS

‘One way’ and ’A second way’.

and ‘However’.
560 ANSWERS
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Preparing for exams [Restrictive injunctions prevent the defendant from acting in a way
that would further the harm. This aims to maintain the position
Standard exam-style of the plaintiff and prevent the infringement of their rights.4]
7. [An injunction is a type of remedy requiring a party to either [Another way this purpose of injunctions is achieved is through
perform a specific action or prohibiting a party from taking a interlocutory injunctions. These temporarily restrict the parties from
particular action.1][One purpose of an injunction, more specifically potentially committing a civil breach until the final determination
a mandatory injunction, is to change the situation to prevent further of a matter.5][However, interlocutory injunctions are only temporary,
harm to the plaintiff.2][Mandatory injunctions force the defendant meaning that further legal proceedings must take place for the
to start or complete an action to prevent further harm to the plaintiff injunction to become final or for the plaintiff to be awarded damages,
by stopping a breach or preventing a potential breach, thus aiming therefore the plaintiff may not be restored to their original position if
to return the plaintiff to their original position before their rights a final injunction is not ordered and the behaviours of the defendant
were infringed.3] are able to continue once the interlocutory injunction ceases.6]
I have defined the term ‘injunction’.1 I have provided an introduction to my response.1
I have provided one purpose of an injunction.2 I have provided one way injunctions achieve their purpose.2
I have provided information about my chosen purpose.3 I have provided one limitation of injunctions achieving
their purpose.3
8. [One purpose of remedies is to return the plaintiff to their original I have provided a second way injunctions achieve
position before the civil breach occurred. ][Another purpose of
1 their purpose.4
remedies is to allow plaintiffs to protect their rights by preventing
I have provided a third way injunctions achieve
the defendant from continuing to infringe upon their rights.2]
their purpose.5
I have provided one purpose of remedies.1

I have provided a second limitation of injunctions
achieving their purpose.6
I have provided a second purpose of remedies.2
‘One purpose’ and ‘Another purpose’. I have used signposting in my response, such as
‘Another way’.
9. [The most appropriate remedy for Digby to seek in this instance I have used connecting words, such as ‘However’.
is a restrictive injunction. ][Restrictive injunctions aim to prevent
1
the defendant from acting in a way that would further the harm. ] 2
[As the extension has not yet been built, a restrictive injunction would 12. True: I; III
be most appropriate as this would prevent the extension from being False: II; IV
built which would have disrupted Digby’s enjoyment of his property.3]
13. [The main purpose of remedies is to return the plaintiff to their
I have identified one appropriate civil remedy for Digby.1 original position before the civil breach occurred.1][In the case of Rebel
Wilson, the purpose of the remedy was to compensate her for the
I have provided information about my chosen remedy.2 damage done to her reputation and career prospects as a result of the
defamatory publication.2]
it to my chosen remedy.3
[In Wilson’s case, damages were deemed to be more appropriate
than an injunction for several reasons. Firstly, an injunction would
have required the defendant, Bauer Media, to stop publishing false
Note: Injunctions are the only appropriate civil remedy for
information about Rebel Wilson.3][However, given that the damage
this question.
had already been done and the false information had already been
widely disseminated, an injunction would not have been an effective
Extended response remedy to address the harm already suffered by Wilson.4]
10. Strengths: I; IV
[Secondly, damages provide a more tangible and measurable form
of compensation for the harm suffered by Wilson. ][In this case, the
5
specific damages awarded were meant to compensate Wilson for the
11. [Injunctions main purpose is to return the plaintiff to their original loss of acting roles as a result of the defamatory publication. This loss
position before their rights were infringed. However, there are could be calculated and quantified, making it more appropriate that
limitations of injunctions.1] damages were ordered as opposed to an injunction.6]
[Mandatory injunctions aim to achieve this purpose of remedies as

6B ANSWERS
they force the defendant to complete an action to prevent further

harm to the plaintiff by stopping a breach or preventing a potential
breach.2][However, if mandatory injunctions cannot prevent harm
from occurring, it can merely aim to reverse the harm or prevent
future harm.3]
ANSWERS 561
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I have provided one purpose of remedies.1

17. [I disagree with this statement to a large extent because criminal
sanctions and civil remedies are both able to achieve their purposes
I have provided information about my chosen purpose in some circumstances, even though they are both limited in this
and linked it to the scenario.2 ability in some ways.1]
[It is true that civil remedies are able to achieve their purposes to a
I have provided one reason why damages are more
large extent, but there are limitations to this ability. ][Compensatory
2
appropriate than an injunction.3
damages aim to restore the plaintiff to their original position, before
the loss caused by the civil breach. I agree that specific damages
are effective in achieving this purpose, in that they have a precise
I have provided a second reason why damages are more value and are easily quantifiable, meaning it is possible to restore the
appropriate than an injunction.5 plaintiff to their original financial position.3][An example of specific
damages is money provided to the plaintiff to cover their medical bills
I have provided information about my chosen reason.6 and loss of income.4]

[On the other hand, general damages, which aim to compensate
a plaintiff who has endured general pain and suffering, do not have
a precise value and are not easily quantifiable. For this reason, their
ability to achieve their purpose of restoring the plaintiff to their original
and ‘Secondly’.
position is limited.5][For example, it is difficult for monetary damages
I have used connecting words, such as ‘However’. to compensate a plaintiff for a shortened life expectancy resulting from
a civil breach.6]
[Injunctions are another type of civil remedy that can achieve their
Linking to previous learning purposes to a certain extent, but there are limitations. ][One purpose
7
of injunctions is to uphold the plaintiff’s rights. By obtaining an

14. [The first error is that sanctions aim to restore the plaintiff injunction, the plaintiff can seek a court order to prohibit or require
to their original position.1][Criminal sanctions aim to punish the certain actions from the defendant, effectively safeguarding their
offender whilst civil remedies aim to restore the plaintiff to their rights.8][However, initiating a civil action comes with high costs, so not
original position.2] all plaintiffs will be able to apply for this relief.9][In addition, the court
has a limited ability to monitor and ensure that the defendant adheres
[The second error is that injunctions can force a party to pay to the terms of the injunction. If the defendant chooses to disregard
money.3][The civil remedy that forces a party to pay money
the injunction, the plaintiff may need to initiate additional legal
is damages, whereas injunctions force a party to make an action
proceedings to enforce it, which can be time-consuming and costly.10]
or prevent them from making an action.4]
[The third error is that damages cannot compensate for pain and [I do not agree that criminal sanctions rarely achieve their purposes,
because, like civil remedies, criminal sanctions are able to achieve
suffering. ][General damages aim to compensate the plaintiff
5
their purposes to a large extent, but there are also limitations to this
for pain and suffering, although it is difficult to quantify this and
ability.11][The purposes of sanctions are rehabilitation, punishment,
damages may not fully restore a plaintiff to their original position
deterrence, denunciation, and protection of the community. Two
before the pain and suffering.6]
common types of sanctions, fines and imprisonment, are able to
achieve some of these purposes to a moderate extent, even though
neither of these sanctions can achieve all purposes.12][For example,
fines can achieve the purposes of punishment and deterrence
I have provided the correct civil procedure for the first
quite effectively, but are not effective in achieving purposes such
as rehabilitation and protection of the community.13][Likewise,
I have identified the second error in the scenario.3 imprisonment achieves most purposes of sanctions quite effectively,
but not all purposes are achieved. For instance, whilst protection is
I have provided the correct civil procedure for the second achieved for the period of imprisonment, many prisoners who are
error in the scenario.4 released will reoffend, so community protection is not achieved in
the long term.14]
[In conclusion, I do not agree with the contention that civil remedies
are always able to achieve their purposes and criminal sanctions rarely
I have provided the correct civil procedure for the third
do. Although there are different types of both remedies and sanctions
that can each be effective in achieving their respective purposes, there
I have used paragraphs to organise my response. are also limitations of each type of remedy or sanction in relation to
one or more of their purposes.15]
‘The first error’ and ‘The second error’. I have provided an introduction to state the extent
to which I agree with the statement, and a brief reason
for my answer.1
6B ANSWERS

Limitations: II; IV; V I have provided a topic sentence to introduce the main
Limitations: II; IV I have provided one argument in support of the statement.3
562 ANSWERS
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I have provided an example relevant to my first argument

in support of the statement.4
I have provided one argument against the statement.5
I have provided an example relevant to my first argument

against the statement.6
I have provided a topic sentence to introduce the main

I have provided a second argument in support of the

statement.8
I have provided a second argument against the

statement.9
I have provided a third argument against the statement.10

I have provided a fourth argument against the statement.12
I have provided an example relevant to my fourth

argument against the statement.13
I have provided a second example relevant to my fourth

argument against the statement.14

I have used connecting words, such as ‘For example’

and ‘However’.
6B ANSWERS
ANSWERS 563
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7A T
he Commonwealth I have provided one role of the House of Representatives.1
Parliament and the Crown I have provided information about my chosen role of the
House of Representatives.2
in law-making I have provided further information about my chosen role
of the House of Representatives.3
1. A. True. Explanation: Australia has retained royal ties to the United
Kingdom since colonisation.
10. One of the roles of the Commonwealth Parliament is to pass
2. D. Explanation: The Governor-General is the Crown’s representative legislation. This is a shared function of all three, major levels of
in the Commonwealth Parliament and is therefore responsible for the law-making process, as passing legislation allows for societal
granting royal assent to bills that have successfully passed through progression and reform.1][This is particularly applicable to the
both Houses of Parliament. House of Representatives, which is where the majority of legislation
is introduced as the government sits in this chamber.2][Once a bill
3. A. Explanation: The Senate traditionally acts to review and amend
has successfully passed through both Houses of the Commonwealth
bills passed by the House of Representatives, as most bills are
Parliament, the Crown also upholds the role of passing legislation
initiated by the lower house of the Commonwealth Parliament.
by providing royal assent via the Governor-General.3]
4. B. False. Explanation: The prime minister is the leader of the
Commonwealth government and therefore sits in the House of I have provided one role of the Commonwealth Parliament.1
Representatives.
5. B. Explanation: The prime minister is chosen by the Australian Commonwealth Parliament.2
people and the government of the day, rather than by the Governor-
General alone. I have provided further information about my chosen role
of the Commonwealth Parliament.3
6. The political party that holds the majority in the House
of Representatives will form the government of the day. I have used signposting in my response, such as ‘One of
the roles’.
7. B; C; D; E. Explanation: Granting royal assent to bills so they
can become law is a role of the Governor-General, not the House
of Representatives. 11. [The Senate has three main roles in the Commonwealth law-making
process. The first is acting as a house of review. Primarily, the
Senate will serve to scrutinise and amend bills passed by the House
Preparing for exams of Representatives.1][The second role is introducing legislation.
Standard exam-style Any member of the Senate may introduce a bill and, if it passes
successfully through the Senate, it will move to the House of
8. [One role of the Governor-General is to grant royal assent, which Representatives.2][The third role of the Senate in law-making is to act
involves the approval of a bill after it has passed through both as the states’ house. As there are an equal number of senators across
Houses of the Commonwealth Parliament.1][Furthermore, another all states, senators aim to best serve their state and ensure all states
role of the Governor-General is to suggest required amendments have an equal ability to reject or approve Commonwealth laws. 3]
to legislation, such as fixing mistakes.2][In this scenario, if the bill
does not contain mistakes, the Governor-General will grant royal I have provided one aspect of the role of the Senate.1
assent, therefore, with the Crown’s approval, the bill will become
an Act and part of Australian law.3] I have provided a second aspect of the role of the Senate.2
I have provided one aspect of the role of the I have provided a third aspect of the role of the Senate.3
Governor-General.1
I have used signposting in my response, such as ‘The first’
I have provided a second aspect of the role of the and ‘The second role’.
Governor-General.2

Extended response
it to the role of the Governor-General.3
I have used signposting in my response, such as ‘One role’ Limitations: II; IV
and ‘another role’.
13. [One role of the Commonwealth Parliament in making the Cheaper
I have used connecting words, such as ‘Furthermore’. Groceries Bill 2050 is through the Senate’s function of acting as
7A ANSWERS
a house of review.1][This is especially true in this scenario as the

government of the day does not hold a majority in the upper house
9. [One role of the House of Representatives is to represent the people and therefore the legislation will not automatically pass through the
in law-making. ][Members in the House of Representatives are elected
1
Senate.2][Although, a diverse Senate and extra scrutiny may slow
as the spokespeople for around 100,000 Australians each. Therefore,
the progress of legislation passing through the Commonwealth
they should reflect the opinions and perspectives of their electorate.2]
Parliament. In this case, as the bill is in response to a current,
[Members who do not act in the best interests of their electorate, societal issue, this is not ideal.3]
perhaps due to their political party or other external pressures, risk
being voted out of office at the next election.3]
564 ANSWERS
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5. A; B; D. Explanation: There is no limit to the number of ministers

[Another role of the Commonwealth Parliament in relation to passing
the Cheaper Groceries Bill 2050 is representing the states and the that may be appointed in the Legislative Assembly.
Australian people.4][For this bill, it is essential for the government
6. The Victorian Parliament consists of two houses. The Legislative
and elected representatives to respond to the conditions and needs
Council is the upper House of the Victorian Parliament and is
of electorates across the country, which members seem to have done
comprised of 40 elected law-makers across Victoria whilst the
considering the public was pressuring the government to address the
Legislative Assembly is the lower house of Parliament.
rising costs of household goods.5][However, there is the chance that
the House of Representatives, in the planning of the bill, prioritises 7. B. False. Explanation: The Legislative Council is made up
the specific needs of the larger states instead of smaller states and of 40 members.
territories, due to the distribution of MPs with there being more MPs
in the House of Representatives from larger states than from the 8. Legislative Assembly: I; II; IV
smaller states.6] Legislative Council: I; II
Crown: III
I have identified one role of the Commonwealth Parliament.1
Preparing for exams

I have provided an example of how my chosen role
of the Commonwealth Parliament may be beneficial Standard exam-style
in the scenario.2
9. [One role of the Legislative Assembly is to initiate and pass bills. ][Any
1
I have provided an example of how my chosen role member of the Legislative Assembly, of which there are 88, are able
of the Commonwealth Parliament may be a limitation to introduce bills.2][Most new laws are introduced in the Legislative
in the scenario.3 Assembly, in particular, legislation that imposes taxation or spends
Victorian Government revenue. These types of legislation must be
I have identified a second role of the Commonwealth introduced in the Legislative Assembly as the Victorian Constitution
Parliament.4
prohibits such bills from being introduced in the Legislative Council.3]
I have identified one role of the Legislative Assembly.1
of the Commonwealth Parliament may be beneficial
in the scenario.5
I have provided one feature of my chosen role.2
I have provided a second feature of my chosen role.3
of the Commonwealth Parliament may be a limitation
in the scenario.6
‘One role’.
and ‘Another role’.
10. [The primary role of the Legislative Council is to act as a house
of review.1][This involves reviewing, debating, and amending bills
I have used connecting words, such as ‘Although’ introduced in the Legislative Assembly.2][Another role of the
and ‘However’. Legislative Council in law-making is to initiate legislation. The
Legislative Council, despite often acting as the second and final
house to review legislation, can also be the first. Any upper house
MP is able to introduce bills, except those regarding the expenditure
7B T
he Victorian Parliament of Victorian public money.3]
and the Crown in I have identified one role of the Legislative Council.1
law-making I have provided information about my chosen role.2
I have identified a second role of the Legislative Council.3

1. B. False. Explanation: The main three components of the Victorian ‘The primary role’ and ‘Another role’.
Parliament are the Crown, the Legislative Council, and the
Legislative Assembly.
11. [One role of the Governor in law-making is providing royal assent
2. A; B. Explanation: The Crown at the Victorian level is appointed to proposed legislation. ][This process is the final approval for all
1
on the advice of the Victorian premier and provides royal assent Victorian bills and is the last action required before bills become
to all proposed legislation that has passed through both Houses legislation. It usually occurs on the advice of the premier.2][A second
of the Victorian Parliament. role of the Governor is acting as Victoria’s Head of State.3][This
7B ANSWERS
involves holding and managing Victoria’s highest legislative powers,

3. B. Explanation: The Governor is the Crown’s representative in Victoria
and therefore provides the final approval for all legislation. as well as acting as the lead representative for Victoria.4]
4. A. Explanation: The Legislative Assembly is the lower house I have identified one role of the Governor.1
comprised of MPs and therefore, this is where the premier sits,
alongside the majority of seats in their party or coalition. I have provided information about my chosen role.2
I have identified a second role of the Governor.3
ANSWERS 565
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I have provided information about my chosen role.4 7C The division of powers

and ‘A second role’. Check your understanding
1. D. Explanation: The Constitution establishes and divides law-making
powers into exclusive, concurrent, and residual powers.
Extended response
2. A. True. Explanation: Concurrent powers allow both the Federal
12. Legislative Assembly: III; IV and state parliaments to legislate in the area of taxation.
Legislative Council: I
Crown: II 3. D. Explanation: Residual powers are not explicitly outlined in the
Constitution as these law-making powers belong to the states and all
13. [A majority of new laws and proposed changes to existing laws areas of law-making not mentioned in the Constitution fall within the
begin in the Legislative Assembly. Although ministers initiate most states’ residual law-making power.
legislation, this role is shared with all the members.1][Members
4. Exclusive powers are law-making powers granted only to the
are directly chosen by the people in their community and will often
Commonwealth Parliament, through ss 51 and 52 of the
receive correspondence from those living within their district to guide
their law-making priorities.2]
[Once a bill passes the Legislative Assembly, it will move to the 5. Concurrent powers: I; III; IV
Legislative Council. The composition of the Legislative Council more Residual powers: II; V
commonly includes independents and members from smaller political
6. A. True. Explanation: Foreign affairs is an area that can only
parties. As a result, a wider range of perspectives can be considered
be legislated on by the Commonwealth Parliament as it is an
when debating new bills at this stage.3][The Legislative Council
exclusive power.
also can introduce legislation, except for legislation concerning the
expenditure of Victoria’s public money, if a member of the Legislative 7. A; B. Explanation: The division of powers exists so that law-making
Council has a particular bill they want to implement. However, most responsibilities are appropriately divided, whilst also ensuring one
legislation is introduced in the Legislative Assembly.4] sole law-making body cannot abuse its powers as a law-maker.
[Once the bill passes both Houses of Parliament, the Governor,
on behalf of the Crown will provide royal assent and the bill will Preparing for exams
become Victorian legislation.5]
Standard exam-style
I have provided one role of the Legislative Assembly.1
8. [No, this bill will not be valid.1][As Calliope is part of the Legislative
I have provided information about my chosen role of the Assembly, she does not have the power to introduce a bill about
Legislative Assembly.2 currency, as that is an area of law-making falling within the category
of exclusive powers and therefore is an area that the Victorian
I have provided one role of the Legislative Council.3 Parliament cannot make laws about.2]
I have provided a second role of the Legislative Council.4 I have stated that Calliope’s bill will not be valid.1
I have provided one role of the Crown.5 I have provided information about why Calliope’s bill will
not be valid.2
9. [The Constitution acts as a restriction on the states’ ability to pass

legislation over areas of certain subject matter, such as currency. ] 1

[This is because currency is an exclusive power and therefore is
an area of law-making that belongs solely to the Commonwealth
14. [One of the main roles of the Commonwealth Parliament is to create
Parliament. Therefore, the state parliaments cannot establish their
and amend Commonwealth legislation that applies to and affects all
own laws about currency and are restricted in their power to pass
Australians.1][One role of the Victorian Parliament is to enact and
laws on matters that inadvertently affect the entire nation.2]
manage state legislation for Victoria, ensuring the law-making needs
of Victorians are met.2][Whilst the Commonwealth Parliament creates
I have identified one way the Australian Constitution acts
laws that affect all Australians, and therefore Victorians, the Victorian
as a restriction on states’ law-making powers.1
Parliament is only responsible for law-making within the state
of Victoria.3] I have provided information about my chosen reason.2
I have provided one role of the Commonwealth Parliament.1

10. [Exclusive powers are law-making powers granted only to the
7C ANSWERS
I have provided one role of the Victorian Parliament.2 Commonwealth Parliament through ss 51 and 52 of the Australian
Constitution.1][This means only the Commonwealth can legislate
I have provided one key difference between the role of the in certain areas, however, relatively few areas of Commonwealth
Victorian Parliament and the role of the Commonwealth law-making power are exclusive.2][For example, laws for customs
Parliament.3 and border protection are exclusive law-making powers that can
be exercised only by the Commonwealth Parliament.3]
I have used signposting in my response, such as ‘One of
the main roles’ and ‘One role’.
566 ANSWERS
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I have defined exclusive powers.1 [Firstly, the Constitution vests concurrent law-making powers
in the Commonwealth and state parliaments, with most powers
I have provided information about exclusive powers. 2 granted to the Commonwealth Parliament by s 51 of the Constitution
being concurrent powers, meaning that the subject matter that the
I have provided an example of exclusive powers.3 Commonwealth Parliament can create legislation about is shared
with the states.2][For example, both the Commonwealth and state
I have referred directly to the relevant section of the parliaments have legislated in the area of marriage and divorce, as
Constitution in my response. they both possess the power to do so. Therefore, the state parliaments
can make laws in the same areas as the Commonwealth if it is within
the scope of concurrent powers.3]
11. [Yes, I agree with this statement.1][State parliaments can pass
different laws regarding the same area of law as each state has [Yet, there are some areas of law-making over which the state
the right to exercise residual powers.2][For example, education parliaments do not have the power to legislate on, such as the areas
is an area covered by residual powers and each state has differing of exclusive law-making.4][Exclusive law-making powers are explicitly
legislation for its schooling and education system.3] vested in the Commonwealth Parliament by the Constitution, and
allow only the Commonwealth Parliament to make laws about national
I have stated whether I agree or disagree with the matters, such as currency and foreign affairs.5]
statement.1
[However, this does not mean that the Commonwealth Parliament
has unlimited law-making powers, as only the state parliaments can
I have provided one reason why I agree or disagree with
exercise residual powers.6][Residual powers are law-making powers
the statement.2
not given to the Commonwealth Parliament by the Constitution,
I have provided an example to support my answer.3 therefore residing solely with the states. This means only the states
can pass legislation on matters such as education and prisons.7]
12. [Exclusive powers are vested in the Commonwealth Parliament

[Therefore, whilst the states can be limited in their ability to pass
legislation in exclusive areas of law-making, they are still able
according to ss 51 and 52 of the Constitution. This means only
to exercise concurrent powers, enabling them to pass laws in areas
the Commonwealth Parliament can pass laws in certain areas.1]
over which the Commonwealth Parliament may also legislate.8]
[On the other hand, concurrent powers are granted to both the
Commonwealth and state parliaments, meaning the Commonwealth
I have provided an introduction to state the extent to
and the states can pass laws about some matters.2][Therefore, one which I agree or disagree with the statement, and a brief
key difference between exclusive and concurrent powers is that reason for my answer.1
exclusive powers belong solely to the Commonwealth Parliament,
whereas concurrent powers are shared between the Commonwealth I have provided information about concurrent powers.2
and state parliaments. Most areas of law-making explicitly mentioned
in the Constitution are concurrent, with relatively few areas of I have provided an example of concurrent powers
law-making belonging only to the Commonwealth.3] to support my response.3
I have provided information about exclusive powers.1 I have provided information about exclusive powers.4
I have provided information about concurrent powers.2 I have provided an example of exclusive powers to support
my response.5
I have provided one key difference between exclusive
and concurrent powers.3 I have provided information about residual powers.6
I have referred directly to the relevant section of the I have provided examples of residual powers to support
Constitution in my response. my response.7
I have used signposting in my response, such as I have provided a conclusion to my response that links
‘one key difference’. back to the question.8
I have used comparison words, such as ‘On the other hand’ I have used paragraphs to organise my response.
and ‘whereas’, when distinguishing.
I have used comparison words, such as ‘Yet’

13. True: II; IV

False: I; III
14. [No, I do not agree with this statement as the Commonwealth and
7C ANSWERS
state parliaments can both exercise concurrent law-making powers

and therefore, can both legislate in particular areas.1]
ANSWERS 567
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4. B. False. Explanation: The application of section 109 does not

change the areas in which states can legislate.
15. a. [One role of the House of Representatives is to initiate laws.1]
5. A; D; E. Explanation: Section 109 of the Constitution provides
[This is the main function of the House of Representatives, a method to resolve inconsistencies between state and
with bills generally being introduced by the lower house, Commonwealth laws, but only once the law is challenged in the
although members of the Senate can also introduce bills courts. Moreover, s 109 is also significant as it renders inconsistent
to the Commonwealth Parliament. Dario wishes to introduce state laws, or sections of the state law, invalid if they contradict
a bill into the House of Representatives to improve prisoner the Commonwealth law. However, the inconsistent state law could
healthcare access.2][However, given members of the House come back into effect if the contradicting Commonwealth law is
of Representatives are elected to represent the views and changed or removed in the future.
values of their electorate, Dario will need to consider whether
this bill reflects the interests of his party, his voters, and the
wider community.3] Preparing for exams
Standard exam-style
I have identified one role of the House
of Representatives.1 6. [The main purpose of section 109 is to resolve inconsistencies
between state and Commonwealth law. ][If a conflict arises in
1
legislation that was passed as a result of concurrent law-making
powers being exercised, s 109 is used to resolve any issues
if the state’s legislation is challenged in the courts. According
linked it to my chosen role.3
to s 109, the state legislation would then be declared invalid and
I have used signposting in my response, such as the Commonwealth law would prevail.2]
‘One role’.
I have stated the main purpose of s 109 of the Australian
I have used connecting words, such as ‘However’. Constitution.1
I have provided information about s 109 of the Australian

b. [Dario’s bill is unlikely to be successful and may face complications Constitution.2
as prisons are an area legislated by residual powers. ][As a 1
Federal MP, Dario has the right to introduce bills into the House
of Representatives using exclusive powers, such as legislation
7. [If the Victorian Parliament was to pass laws enabling easier access
to an individual’s banking data, it would likely be challenged by
about overseas trade agreements.2][However, if he wanted prison
the Commonwealth Parliament in the courts under s 109 of the
reform within state correctional facilities, this would require a state
Constitution, as there are existing federal laws about consumer
MP to introduce the bill into their state parliament, as prisons fall
privacy.1][The courts would apply s 109 of the Constitution, which
within the area of residual law-making. Therefore, Dario’s bill is
outlines that Commonwealth laws will prevail to the extent of the
overstepping into an area of residual powers and is not likely
inconsistency if a conflict arises between state and Commonwealth
to be successful.3]
legislation.2][Therefore, the legislation produced by the Victorian
I have provided one reason why Dario’s bill is unlikely Parliament could still operate, but any sections that conflict
to be successful.1 with Commonwealth legislation would no longer be valid as
Commonwealth laws protecting data and privacy would prevail.3]
I have provided information about why Dario’s bill is [These sections would only be declared invalid once a case against
unlikely to be successful.2 the legislation is brought to the courts. Hence, the legislation
allowing companies to access online banking data would remain
I have provided further information about why Dario’s valid and enforceable upon Victorian citizens until the courts
bill is unlikely to be successful.3 declare otherwise.4]
I have used connecting words, such as ‘However’ I have provided information about the relevance
and ‘Therefore’. of section 109 of the Australian Constitution.1
I have provided further information about the relevance

of s 109 of the Australian Constitution.2
7D S
ection 109 of the
I have provided one example from the scenario and linked
Australian Constitution it to s 109 of the Australian Constitution.3
I have provided a second example from the scenario and

Check your understanding linked it to s 109 of the Australian Constitution.4
1. C. Explanation: Section 109 is applicable to conflicts between state I have used connecting words, such as ‘Therefore’
7D ANSWERS
and Commonwealth legislation. and ‘Hence’.

2. B. False. Explanation: If a state law is deemed invalid according
to s 109, only the inconsistent part of the state law becomes void.
The remaining parts of the Act remain valid.
3. A state law that is inconsistent with a Commonwealth law is not

automatically deemed invalid unless it is challenged in the courts.
568 ANSWERS
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8. [Firstly, section 109 is significant because it provides a method I have provided an introduction to state the extent to which
to resolve inconsistencies between state and Commonwealth I agree or disagree with the statement, and why.1
legislation.1][In this case, the Victorian Parliament’s law restricting
caffeine consumption before 12 pm is inconsistent with the I have provided one way s 109 of the Australian
Commonwealth’s law that mandates employers to provide employees Constitution can restrict state law-making.2
with coffee in the morning. Therefore, s 109 is significant here
as it allows the inconsistency between the two pieces of legislation I have provided information about how s 109 of the
to be resolved, whereby the Commonwealth law will prevail.2] Australian Constitution can restrict state law-making.3
[Secondly, section 109 is significant because it does not act to I have provided one way s 109 of the Australian
immediately declare inconsistent state laws invalid. ][A state law
3
Constitution does not restrict state law-making.4
is only deemed invalid once it is challenged in the High Court.
Therefore, Victorian employees could be banned from drinking I have provided information about how s 109 of the
caffeine before 12 pm in workplaces until the law is challenged Australian Constitution does not restrict state law-making.5
and deemed invalid by the courts.4]
I have provided a second way s 109 of the Australian
I have provided one reason why section 109 of the Constitution does not restrict state law-making.6
Australian Constitution is significant.1
I have provided information about my chosen reason.2 back to the question.7
I have provided a second reason why section 109 of the I have used paragraphs to organise my response.
Australian Constitution is significant.3
I have used connecting words, such as ‘Thus’ and ‘However’.

11. a. [Yes, Fern is allowed to introduce laws regarding marriage.1]
and ‘Secondly’.
[This is because marriage is legislated using concurrent powers,
which are shared between the Commonwealth and state
parliaments, and Fern is a politician in the Victorian Parliament.2]
I have identified that Fern can introduce laws

Extended response regarding marriage.1
9. A; D I have provided information about marriage as a

concurrent power.2
10. [I agree with this statement to a moderate extent. Whilst s 109
can restrict a state’s ability to exercise concurrent powers in some
circumstances, it does not completely remove its law-making b. [If this bill was passed by the Victorian Parliament, it would
abilities.1] most likely be deemed invalid if challenged in the courts. This is
because the Commonwealth Parliament’s Marriage Act 1961 (Cth)
[Firstly, if there are conflicting state and Commonwealth laws, the states that a marriage can occur on ‘any day at any time’, in turn
state law could be deemed invalid if it is challenged in the High
contradicting the Victorian law.1][Therefore, as per s 109 of the
Court.2][According to s 109, the Commonwealth law will prevail
Constitution, once challenged in the courts, the Commonwealth
to the extent of the inconsistency if the state Act, or parts of it,
law would prevail and the sections of the Victorian law only
contradict with the Commonwealth legislation, regardless of which
permitting marriage on Wednesdays, between certain hours,
law was passed first. Thus, in the area of concurrent law-making,
would be deemed invalid.2]
the state may be restricted in its ability to enforce certain laws if
they do not align with Commonwealth laws, even if such laws are
I have provided information about why Fern’s marriage
relevant to citizens.3]
law is likely to be deemed invalid.1
[However, s 109 does not act as a complete restriction on state
law-making. ][For example, a conflicting state law is not invalid
4 I have provided information about s 109 of the
until it is challenged in the courts and deemed invalid under s 109. Australian Constitution and how it would impact
Therefore, states still have the capacity to exercise concurrent Fern’s marriage law.2
powers and can continue establishing other legislation in the
relevant area of law.5][Moreover, if part of the state law was
7D ANSWERS
previously deemed invalid but the relevant Commonwealth law

is later changed or removed, the invalid part of the state law can
then come into effect.6]
[Thus, s 109 can limit a state’s ability to exercise concurrent powers

to a moderate degree, but it does not completely remove a state’s
ability to make laws in areas of concurrent law-making.7]
ANSWERS 569
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7E H
igh Court cases and their I have referred directly to the relevant section of the
Constitution in my response.
impact on law-making I have referred to a relevant case example to support
powers my response.
Check your understanding 9. [In the Brislan case, the High Court was required to interpret s 51(v)
of the Constitution to decide whether radio broadcasting was
1. B. False. Explanation: High Court rulings on their interpretation of the an area of Commonwealth law-making power.1][The court found that
Constitution cannot be overturned by the Commonwealth Parliament. it was, interpreting radio broadcasting as falling within the category
of ‘postal, telegraphic, telephonic, and other like services’ under
2. A. Explanation: The Commonwealth’s establishment of the National
s 51(v).2][The Brislan decision is significant because it suggests the
Broadband Network (NBN) was made under the assumption that
Commonwealth Parliament is able to make laws in relation to new
the internet is a ‘like service’ under s 51(v) of the Constitution
communication technologies if they can be considered ’other like
following the Brislan case. Public housing, state police, and roads
and infrastructure are considered areas of residual power. services’.3][Therefore, the division of powers is impacted as the
Commonwealth Parliament has assumed greater legislative powers
3. C; D. Explanation: The decision of the High Court can be changed via the interpretation of s 51(v) and may continue to gain legislative
if another case contesting the same phrasing of the Constitution powers over new, upcoming technologies, unless such interpretations
comes before it and the court overturns the precedent established by of the Constitution are challenged in the High Court.4]
Brislan. Additionally, the decision of the High Court on constitutional
issues is final, and can only be overruled by another High Court I have provided information about one High Court case
decision, or by a successful referendum. that has impacted the division of law-making powers.1
4. A. Explanation: The Tasmanian government argued the I have provided information about how the decision
Commonwealth did not have a law-making power under the in my chosen High Court case has impacted the division
Constitution to create laws regulating dam construction, as this of law-making powers.2
was a residual power of the states.
I have provided information about the significance
5. The Tasmanian Dam case created the opportunity for any state of my chosen High Court case and its impact on the
legislation to be overruled by Commonwealth legislation as long division of law-making powers.3
as it is for the purposes of upholding genuine, international treaty
obligations under the external affairs power. I have provided further information about the significance
of my chosen High Court case and its impact on the
6. D. Explanation: The Commonwealth Parliament created the ABC division of law-making powers.4
after it was determined by Brislan that broadcasting falls under
‘other like services’. I have referred directly to the relevant section of the
7. B. False. Explanation: Although the division of powers is established
by the Constitution, setting out which subject matter falls within I have referred to a relevant case example to support
exclusive, concurrent, and residual powers, the High Court is required my response.
to interpret the meaning of the Constitution and, by doing so, impacts
the law-making powers of the state and Commonwealth parliaments. I have used connecting words, such as ‘Therefore’.
Preparing for exams

Extended response
Standard exam-style
10. True: II; IV; V
8. [The decision in the Tasmanian Dam case had the effect of False: I; III; VI
broadening the Commonwealth’s law-making powers because s
51(xxix) of the Constitution, ‘external affairs’, was interpreted to 11. [The Tasmanian Dam case is a High Court case from 1983 in which
allow the Commonwealth Parliament to legislate on all subject the interpretation of the Australian Constitution had an impact on
matter covered by an international treaty Australia has ratified.1] state and Commonwealth law-making powers.1][In the Tasmanian
[In practice, this means the Commonwealth law-making powers Dam case, the High Court was required to interpret s 51 (xxix) of
have been expanded as the Commonwealth Parliament can the Constitution, which enabled the Commonwealth Parliament
now make laws about the wide-ranging subject matter handled to make laws in relation to ‘external affairs’. Specifically, the court
by international treaties, allowing it to possibly override state considered whether the section extended to law-making to give
legislation in areas of residual law, such as in the Tasmanian effect to international treaties, even if by giving effect to such treaties,
Dam case.2] the Commonwealth was essentially legislating in an area where the
states have residual law-making power.2][The court determined that
I have provided one effect that a High Court case had
7E ANSWERS
‘external affairs’ should be interpreted as allowing the Commonwealth

on state and Commonwealth law-making powers.1 Parliament to make laws in relation to any subject matter covered
by an international treaty that the executive branch of Australia had
I have provided information about my chosen effect ratified. Therefore, this essentially broadened the Commonwealth’s
the High Court case had on state and Commonwealth law-making powers as it allowed the Commonwealth Parliament
law-making powers.2 to make laws on the wide array of subject matter covered by
international treaties.3]
570 ANSWERS
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[The interpretation of the Constitution in the Tasmanian Dam case [One way in which the Brislan case has impacted the
had a large impact on the state and Commonwealth law-making Commonwealth’s law-making powers is that the decision
powers.4][The decision in the case means that residual areas of broadened the power of the Commonwealth to legislate in relation
law-making that traditionally belonged solely to the states may be to ‘postal, telegraphic, telephonic, and other like services’ under
legislated upon by the Commonwealth Parliament if it exercises its s 51(v).2][Since the High Court interpreted radio broadcasting to fall
external affairs powers to uphold international obligations.5][The within this category of services, the Commonwealth Parliament has
presence of s 109 in the Constitution has the effect of rendering state been able to legislate in relation to a range of different technologies
legislation invalid if it is inconsistent with Commonwealth legislation. that may also be considered ‘other like services’.3][For example, the
Therefore, the decision in the Tasmanian Dam case had the effect establishment of the Australian Broadcasting Corporation (ABC) in
of broadening the law-making power of the Commonwealth, at the 1932 was created on the basis that Brislan’s interpretation of s 51(v)
expense of the states’ powers.6] allowed the Commonwealth to control broadcasting.4]
[In addition, the interpretation of the external affairs power in the [Another way in which the Brislan case impacted the division
Tasmanian Dam case has created the potential for further changes of law-making powers is that it has set a precedent for future
to the state and Commonwealth law-making powers in the future.7] expansion of the Commonwealth’s law-making powers.5]
[The decision means that it is possible for any state legislation to [The interpretation of the term ‘other like services’ in s 51(v)
essentially be overridden by Commonwealth legislation in the future, suggests the ability of the Commonwealth to legislate in relation
providing the Commonwealth legislation gives effect to international to new related communication technologies.6][The Commonwealth
obligations under the external affairs power.8] can likely rely on the Brislan decision, and subsequent decisions that
have also considered s 51(v) to legislate in relation to the internet,
I have provided one High Court case that has impacted even though a case has not yet been brought before the High Court
the state and Commonwealth law-making powers.1 to confirm this.7]
I have provided information about the legal issues [When a High Court interpretation of the Constitution has the
in my chosen High Court case.2 effect of broadening the Commonwealth’s law-making powers, this
can encroach on the state’s law-making powers.8][For example,
I have provided information about the interpretation in Brislan, the decision suggests that the phrase ‘other like services’
of the Constitution in my chosen High Court case.3 should be given a broad interpretation, which means that areas
of law-making that were considered as residual law-making powers
I have provided a topic sentence to introduce the main of the states could be areas for which the Commonwealth has
idea of my paragraph.4 concurrent law-making powers. Brislan therefore reduced the state’s
law-making power.9]
I have provided information about the impact of my
chosen High Court case on state and Commonwealth [However, whilst it has been contended that the Brislan decision
law-making powers.5 may have extended Commonwealth law-making power too broadly,
there are limitations to the impact the decision can have.10][One
I have provided further information about the impact of limitation of the Brislan decision is it does not confirm that all other
my chosen High Court case on state and Commonwealth communication technologies will definitely be interpreted to fall
law-making powers.6 in the s 51(v) category of Commonwealth law-making power.11]
[Moreover, to confirm what constitutes as ‘other like services’,
I have provided information about the potential future another case considering these words of the Constitution must
impact of my chosen High Court case on state and be brought before the High Court as it can only rule on and create
Commonwealth law-making powers.7
precedent in relation to cases before it.12]
I have provided further information about the potential [Another limitation of the impact of the Brislan decision is that
future impact of my chosen High Court case on state and where the Commonwealth has legislated in relation to ‘other like
Commonwealth law-making powers.8 services’ in reliance of the Brislan decision, it is still possible for the
validity of that legislation to be challenged in the High Court, and
I have referred directly to the relevant section of the there is potential that such legislation may be declared invalid if the
Constitution in my response. service under consideration is not as similar to those services listed
in s 51(v).13]
I have referred to a relevant case example to support
my response. [Therefore, although the decision in Brislan was significant in
expanding the law-making powers of the Commonwealth, and
I have used paragraphs to organise my response. demonstrating the potential for future expansion of these powers,
it is not yet certain which current or future areas of law-making
I have used connecting words, such as ‘Therefore’ and might be included in such an expansion.14]
‘In addition’.
12. Significance: II; III; VI I have provided one way the decision in my chosen High
Limitations: I; IV; V Court case has impacted Commonwealth law-making
7E ANSWERS
powers.2
13. [The Brislan case involved the High Court interpreting the words
of s 51(v) of the Constitution to determine that radio broadcasting I have provided information about the first way the case
should be included in the Commonwealth’s area of law-making has impacted Commonwealth law-making powers.3
power. This interpretation has a significant impact on the state
and Commonwealth’s law-making powers, however, there are I have provided an example and linked it to the first way the
some limitations.1] case has impacted Commonwealth law-making powers.4
ANSWERS 571
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I have provided a second way the decision in the case has I have provided information about section 109 of the
impacted Commonwealth law-making powers.5 Australian Constitution.1
I have provided information about the second way the I have provided information about the relevance of
case has impacted Commonwealth law-making powers.6 section 109 when a High Court interpretation leads
to an expansion of Commonwealth law-making powers.2
I have provided an example and linked it to the
second way the case has impacted Commonwealth I have provided an example and linked it to the relevance
law-making powers.7 of section 109.3
I have provided one way the decision in the case has I have referred directly to the relevant section of the
impacted law-making powers.8 Constitution in my response.
I have provided information about the way the case has I have used connecting words, such as ‘Therefore’.
impacted state law-making powers.9

idea of my second core argument.10 7F P
arliament’s ability
I have provided one way my chosen case is limited in
impacting state and Commonwealth law-making powers.11
to make law
I have provided a second way my chosen case is limited in
– the bicameral structure
impacting state and Commonwealth law-making powers.12
I have provided a third way my chosen case is limited in
impacting state and Commonwealth law-making powers.13 1. B. False. Explanation: All parliaments in Australia, except for
three, operate with a bicameral structure that requires proposed
I have provided a conclusion to my response.14 legislation to be approved by both Houses of Parliament.
I have referred directly to the relevant section of the 2. A; C; D. Explanation: When a political party holds a majority in the
Constitution in my response. upper house as well as the lower house, this may be known as a
‘rubber stamp’ upper house that may rush and approve bills with little
I have referred to a relevant case example to support debate as they vote with the party instead of basing their vote on
my response. personal opinions.
I have used paragraphs to organise my response. 3. When the government of the day has a minority in the upper house,
this is known as a hostile upper house.
and ‘Another way’. 4. B. Explanation: The lack of sitting weeks available for Victorian and
Commonwealth parliaments can considerably slow the parliament’s
I have used connecting words, such as ‘However’ and law-making process as, if MPs are not actually attending parliament,
‘Therefore’. the law-making process cannot occur.
5. A; B; C; D. Explanation: All compositions of the upper house have both

strengths and limitations in the parliamentary law-making process.
6. A. True. Explanation: Due to the bicameral structure of the
14. [Section 109 of the Australian Constitution states that when there Victorian and Commonwealth Parliaments, both houses rely upon
is inconsistency between state and Commonwealth legislation, one another to enact their law-making capacity and duty as most
assuming the legislation is an area of concurrent law-making power, bills cannot pass without consent from both houses.
the Commonwealth law will prevail and the state legislation will
be ineffective to the extent of the inconsistency.1][When the High
Court interprets the Australian Constitution in a way that expands
Preparing for exams
the Commonwealth’s law-making powers to include an area of Standard exam-style
law-making that was previously assumed to be a residual power
of the states, this renders the area of law-making to be concurrent 7. [The makeup of a bicameral parliament is two houses: one upper
with the states. Therefore, state legislation would be invalid to the and one lower. ][The function of such a parliament is to provide
1
extent of the inconsistency with Commonwealth legislation, as per accountability and a checking process on each bill that is passed
s 109 of the Constitution.2][For example, in the Tasmanian Dam through parliament.2]
case, when Commonwealth legislation giving effect to international
obligations regarding world heritage sites was enacted under the I have provided information about the makeup
7F ANSWERS
Commonwealth’s ‘external affairs’ power, state legislation allowing for of a bicameral parliament.1
the construction of a dam was inconsistent with the Commonwealth
legislation, and thus invalid to the extent that it was inconsistent.3] I have provided information about the function
of a bicameral parliament.2
572 ANSWERS
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8. [One way the bicameral structure of parliament improves the ability I have provided an introduction to my response.1
of parliament to make law is when there is a hostile upper house
composition.1][When this occurs, it increases the level of scrutiny I have provided one strength of the effect of the bicameral
on bills and ensures that adequate levels of debate and consideration structure on the ability of parliament to make law.2
are undertaken before a law passes through the house.2]
I have provided a second strength of the effect
[Another way the bicameral structure improves the ability of of the bicameral structure on the ability of parliament t
parliament to make law is that it provides two opportunities for
o make law.3
proposed legislation to be reviewed.3][If parliament consisted of
only one house, the government of the day could pass legislation I have provided one limitation of the effect
that benefits the majority of voters but fails to consider the views of the bicameral structure on the ability of parliament
and values of other constituents in society.4] to make law.4
I have identified one way the bicameral structure I have provided a third strength of the effect
improves the ability of parliament to make law.1 of the bicameral structure on the ability of parliament
to make law.5
I have provided a second limitation of the effect
I have identified a second way the bicameral structure of the bicameral structure on the ability of parliament
improves the ability of parliament to make law.3 to make law.6
I have provided information about my chosen way.4 I have provided a conclusion to my response.7
I have used signposting in my response, such as I have used paragraphs to organise my response.
‘One way’ and ‘Another way’.
I have used connecting words, such as ‘However’,

Extended response
‘Moreover’, and ‘Additionally’.
9. Strengths: II; III; V
Limitations: I; IV
11. A; B
10. [The bicameral structure of parliament is a feature of both the

12. [The composition of the 2031 Commonwealth Parliament’s Senate
Victorian and Commonwealth Parliaments. By requiring two chambers
would affect the parliament’s law-making ability to a moderate extent.
to review proposed legislation, parliament usually experiences higher
This Senate composition is hostile as the government does not hold
quality law-making through increased scrutiny of bills. However, this,
a majority.1]
and the ease with which laws can be passed is impacted by whether
or not the government has a majority in both houses.1] [When the government does not hold a majority in the upper house,
it must consider a broader range of perspectives, improving the quality
[Firstly, a bicameral structure can ensure thorough scrutiny and debate of law-making.2][In this case, the government of the day would not be
of bills. When the upper house does not have a government majority,
able to rely on the support of its senators alone to pass legislation, and
often a higher level of review on proposed legislation will occur as
therefore, may be more willing to include amendments and a higher
the upper house will be composed of MPs with a range of different
level of review.3][For this particular government to pass legislation
views. This can,, potentially improve the quality of parliamentary
through the upper house, they will require the support of at least nine
law-making.2]
non-government MPs to reach a majority.4]
[Moreover, the inclusion of a second house prevents the government
from passing legislation that aligns solely with its political agenda [However, this may slow the legislative process as minor parties and
independents in the Senate can create delays by demanding changes
rather than which best reflects the views and values of constituents, as
and conducting unreasonable lengths of debate.5] [That being said, the
other parties and independents will hold diverse values and opinions.3]
bills that are passed through this hostile Senate may have undergone
[Although, if particularly stubborn MPs hold the balance of power, a higher level of review and scrutiny, improving outcomes for more
they may force the government to alter bills for specific interests that
individuals in the population, not just those who align with the
do not represent the views of the broader population in order to pass
government of the day’s political agenda.6]
the legislation.4]
[Additionally, when the government holds a majority in both houses, I have provided an introduction to state the extent to
it may be able to pass bills with few barriers from opposing parties, which I believe the composition of this Commonwealth
therefore increasing the speed at which new laws can be passed.5] Parliament affects its law-making ability, and a brief
[However, this may also mean that a ‘rubber stamp’ situation reason for my answer.1
may occur in the upper house, whereby bills undergo little to no
I have identified one way the bicameral structure
consideration, due to the government of the day holding a majority
enhances the ability of parliament to make law.2
of seats in both houses, removing a vital part of the law-making
7F ANSWERS
process.6]
[Therefore, the bicameral structure of parliament can both enhance in relation to the scenario.3
and hinder the ability of parliament to change the law, and this
is dependent on whether the government has a majority in the I have provided an example from the scenario.4
upper house.7]
I have provided one way the bicameral structure limits the
ability of parliament to make law in relation to the scenario.5
ANSWERS 573
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3. International declarations are not legally binding and are a statement

I have provided a second way the bicameral structure
of principles that a nation may sign. Alternatively, international
enhances the ability of parliament to make law.6
treaties are agreements that become legally binding under
international law upon ratification.
4. A; C. Explanation: International organisations cannot create laws
on behalf of any parliament, but rather, may scrutinise and place
pressure on parliament to make laws in a particular area.
5. B. Explanation: An international declaration is a non-binding

agreement between two or more countries that establishes the
13. a. [One role of the Governor in passing the Suburban Agriculture Bill aspirational rights and obligations that parties to the agreement
2056 (Vic) would be to provide royal assent.1][After the bill has seek to enforce. The United Nation cannot force countries to sign
passed both Houses of the Victorian Parliament, the Governor, the declaration, nor are countries bound to follow a declaration.
as the King’s Representative, would provide the final approval and
6. A. True. Explanation: Australia’s international obligations and
sign it off as official law.2] commitments do not automatically become part of domestic law
upon Australia signing a treaty, but can be a strong influence on
I have identified one role of the Governor in passing
law-making by parliament.
the Suburban Agriculture Bill.1
I have provided information about my chosen role.2 Preparing for exams

I have used signposting in my response, such as Standard exam-style
‘One role’.
7. [One impact of international pressures is that they may cause
parliaments to create or amend laws to uphold international
b. [One limitation of parliament’s law-making in this scenario is standards.1][For example, other countries and international
the hostile upper house. ][A hostile upper house can delay the
1
organisations may place pressure on the Australian Parliament
law-making process as the crossbench that holds the balance to make laws to uphold basic human rights.2]
of power may push for further debate and amendments to the
bill.2][As the passing of the bill is urgent, due to the current I have identified one impact that international pressures
community danger, the delay caused by the hostile upper house may have on the ability of parliament to make laws.1
may act as a limitation on the ability of parliament to make law
in this scenario.3] I have provided information about my chosen impact.2
I have identified one way the bicameral structure I have used signposting in my response, such as
limits the ability of parliament to make law.1 ‘One impact’.

8. [International pressures refers to the influence that other countries
and international organisations exert on parliaments to ensure its
linked it to my chosen way.3 laws comply with international standards.1][If the Commonwealth
Parliament passes a law that breaches the principles set out in
I have used signposting in my response, such as the International Convention on the Elimination of All Forms of Racial
‘One limitation’. Discrimination 1966 (ICERD), it may face criticism from other countries
and international organisations, such as the United Nations.2][This is
because Australia is a signatory to, and has ratified, the ICERD, whilst
also incorporating some provisions of the ICERD into domestic
7G P
arliament’s ability law by passing the Racial Discrimination Act 1975 (Cth). Therefore,
international pressures can protect the Australian people by
to make law preventing parliament from passing laws permitting discrimination
on the basis of race.3]
I have defined international pressures.1
Check your understanding I have provided information about international pressures.2
1. A. True. Explanation: The influence of international pressures

on Australia means that many current and future laws are made
it to the protection of the Australian people.3
in accordance with international law.
2. B. Explanation: A country can become a party to a treaty by signing
7G ANSWERS
it, which is the first step of the treaty-making process, indicating the
signatory intends to be bound by the treaty’s terms. The next step
is ratification, which is a more formal undertaking to be bound
by the terms of the treaty.
574 ANSWERS
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9. [I believe that international pressures affect the ability of parliament to [Additionally, international organisations may be influential in sparking
make laws to a significant extent, due to the criticisms, scrutiny, and public interest in relation to particular issues, such as those relating to
potential legal consequences that it may face.1][Firstly, if Australia is human rights and climate change, that countries fail to uphold. This
found to be in breach of international treaties to which it is a signatory will likely place pressure on parliament to change laws in order to
to and has ratified, parliament will likely face criticism from other reflect society’s values, as well as international standards.4][Another
countries for failing to uphold fundamental human rights set out in way international pressures may influence parliament to change laws
international treaties. This may influence parliament to change the law is because of the fact that Australia is also signatory to a broad range
to avoid further criticism.2][Additionally, international organisations of international declarations, which contain principles Australia has
and other countries may be influential in sparking public interest about indicated it is committed to uphold. The principles within declarations
particular human rights issues that countries, such as Australia, are can also influence parliament to enact a change in the law.5]
failing to uphold. This may place pressure on parliament to create
or amend laws to reflect society’s values, as members of parliament
[However, one limitation of international pressures’ influence
on parliament’s ability to change laws is that pressure from
(MPs) are likely to support or initiate law reform that the majority of
international organisations, or obligations in treaties Australia
their constituents also support in order to increase their likelihood of
is a party to, may hinder the ability of parliament to tailor laws to
re-election.3][However, one way the impact of international pressures
the unique needs and circumstances of the Australian population.6]
is limited is that international society may have conflicting views and
values on certain matters. For example, environmental groups often [Another limitation is that international declarations are not legally
binding, meaning that whilst there may be international criticism
campaign for Australia to reduce its coal consumption, however,
for failing to uphold principles in declarations, Australia will not
transnational mining corporations want the government to continue
face legal consequences for failing to enact legislation to uphold
supporting coal exports. Therefore, parliament is unlikely to be
strongly influenced to either support or reduce coal consumption as the principles set out in a declaration.7]
members of parliament (MPs) are aware they will lose support from [Overall, international pressures are effective at influencing parliament
one group no matter what they do.4] to change the law to comply with international standards and avoid
facing scrutiny from other countries or organisations. However, that
I have provided an introduction to my response.1 same pressure can hinder parliament’s ability to change law to meet
domestic needs, and pressure in relation to declarations is limited
I have provided one reason why international pressures since they are not legally binding.8]
affect the ability of parliament to make laws.2
I have provided a second reason why international I agree or disagree with the statement.1
pressures affect the ability of parliament to make laws.3
I have provided one way international pressures influence
I have provided one limitation of the ability of parliament to change laws.2
international pressures to affect the ability of parliament
to make laws.4 I have provided information about my chosen way.3
I have used signposting in my response, such as ‘Firstly’ I have provided a second way international pressures
and ‘one way’. influence parliament to change laws.4
I have used connecting words, such as ‘Additionally’ I have provided a third way international pressures
and ‘However’. influence parliament to change laws.5
I have provided one limitation of the influence

of international pressures on the ability of parliament
Extended response
to change laws.6
10. Strengths: II; III; IV; VI
Limitations: I; V I have provided a second limitation of the influence
of international pressures on the ability of parliament
11. [I agree with the statement that international pressures are effective to change laws.7
at influencing parliament to change laws to a large extent. ] 1

[Firstly, if Australia is found to be in breach of the obligations within back to the question.8
international treaties to which it has ratified, Australia will likely face
criticism from other countries, and potentially other consequences, I have used paragraphs to organise my response.
for failing to uphold the obligations. This may influence parliament to
change the law to avoid further criticism or other consequences.2] I have used signposting in my response, such as ‘Firstly’
[Such consequences can include sanctions. International and ‘Another way’.
organisations, such as the United Nations and the World Trade
Organisation, have the power to impose sanctions on countries I have used connecting words, such as ‘Additionally’
for breaching international treaties. Only the organisation has the and ‘However’.
power to remove these sanctions, placing pressure on a country,
7G ANSWERS
and more specifically its parliament, to comply with international

law by not passing legislation that contravenes treaties.3]
ANSWERS 575
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3. A; B. Explanation: The diversity of parliament, and in turn, the

ability of parliament to represent diverse communities in law-making
is a product of both the choices of voters in compulsory elections,
12. [One reason why parliament may not change the law in this case
as well as the candidate pool that an electorate or electoral district
is due to international pressures, which refers to the influence
has to choose from.
that other countries and international organisations exert on the
Australian Parliament to ensure its laws comply with international
4. Strengths: II
standards.1][As Australia is a party to the Convention Relating Limitations: I; III; IV
to the Status of Refugees (1967) (CRSR), this means Australia
has formally ratified the treaty and is bound to uphold it under 5. A. Explanation: Each voting electorate and electoral district may have
international law.2][As passing legislation to return refugees that its own choice of representative; however, if no one who is a worthy
enter Australia to their country would breach the CRSR, parliament representation of the demographic and values of the community
may face pressure from countries and international organisations, is nominated to run in an election, this will limit the representative
likely preventing such a law from being implemented.3] nature of parliament.
I have provided one reason why parliament may not 6. B. False. Explanation: Even for an MP with the best intentions
change the law.1 of representing a community, if they lack the lived experience
of certain demographics, it is unlikely they would be able to fully
I have provided an example from the scenario and linked represent their community in law-making.
I have provided information about my chosen reason.3 Preparing for exams

Standard exam-style
‘One reason’. 7. [One way in which parliament represents the community in
law-making is through regular elections. ][Since MPs serve a fixed
1
term, they have a certain pressure to represent their constituency

13. [One role of the Commonwealth Parliament is to create laws that
represent the views and values of society, as members of parliament in law-making or risk being voted out.2]
(MPs) are elected by the people and should therefore, represent
I have provided one way in which parliament may
the peoples’ views.1][An example of an international pressure is the
represent the community in law-making.1
influence exerted by international organisations, which may be highly
influential in sparking public interest in particular human rights issues I have provided information about my chosen way.2
that Member States, such as Australia, are failing to uphold.2][As
a result, this may place pressure on the Commonwealth Parliament I have used signposting in my response, such as
to create laws that reflect the views and values of society in relation ‘One way’.
to these human rights issues.3]
I have provided one role of the Commonwealth Parliament.1 8. [The diversity of a given parliament is largely dependent on the
MPs that sit within it who are chosen by the respective communities
I have provided an example of an international pressure.2 they represent. For some time, both the Victorian and Commonwealth
Parliaments have not been diverse enough to reflect the diversity
I have provided information about the relationship of the Victorian and Australian communities.1][If a parliament does
between my chosen role and international pressure.3 not reflect the demographics of the society it is created to lead, its
capacity to make law that is effective and inclusive of all, is reduced.2]
[Moreover, if parliament is not truly representative of broader
‘One role’. society, laws are less likely to address legislative challenges faced
within communities, which can lead to civil unrest and mistrust
in the parliament.3]
I have provided one way the representative nature
7H P
arliament’s ability of parliament may affect its ability to make law.1
to make law I have provided information about my chosen way the

representative nature of parliament may affect its ability
– representative nature to make law.2

way the representative nature of parliament may affect
its ability to make law.3
1. B. False. Explanation: Despite the best efforts of some governments
7H ANSWERS
and MPs, parliament cannot fully consider the entire voter base I have used connecting words, such as ‘Moreover’.
in law-making. For example, as parliament is elected by the majority of
voters, minority groups or diverse populations may not be represented.
2. The representative nature of parliament is assisted through

regular elections, meaning politicians must act to represent their
constituents or else risk being voted out.
576 ANSWERS
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9. [I believe the composition of this Commonwealth Parliament affects [The representative nature of parliament establishes a strong
its ability to be representative in law-making to a moderate extent. ] 1 framework for parliament to effectively make law. However, in
practice, parliament’s ability to make laws that are representative
[From the table above, it is clear there are some differences can depend on a variety of factors.7]
in the level of diversity across the two houses, as well as in the
overall cultural diversity of all the MPs and Senators. Whilst there I have provided an introduction to my response
are more women in the Senate (57%), there are fewer overall to summarise my answer to the question.1
in the House of Representatives (38%) and therefore, the entire
Parliament. Similarly, the diversity of Non-European (6.6%) and I have provided one strength of the effect of the
Asian MPs (4.4%) is disproportionate to the actual diversity representative nature of parliament on its ability
observed in the community.2][Consequently, in particular areas to make law.2
of law-making, parliament may be skewed towards the interests
of less culturally-diverse men. Therefore, this Commonwealth I have provided a second strength of the effect of the
Parliament may struggle to be representative in law-making.3] representative nature of parliament on its ability
[Although, just because there is a lack of diversity, it does not to make law.3
mean MPs will neglect their constituents. Even with differences
in certain characteristics, like race and gender, MPs have a duty I have provided one limitation of the effect of the
representative nature of parliament on it’s ability
to represent all members of the community.4]
to make law.4
I have stated the extent to which I believe the
I have provided a third strength of the representative
composition of this Commonwealth Parliament
nature of parliament on its ability to make law.5
affects its ability to be representative in law-making.1
I have provided a second limitation of the effect
I have included information from the stimulus provided.2
of the representative nature of parliament on it’s ability
to make law.6
I have provided one way the composition of this
Commonwealth Parliament is limited in its ability
I have provided a conclusion to my response.7
to be representative in law-making.3
I have provided one way the composition of this
Commonwealth Parliament is not limited its ability
to be representative in law-making.4
I have used connecting words, such as ‘On the other hand’

10. A; C; E
11. [The representative nature of parliament seeks to improve the Linking to previous learning
quality of its law-making by ensuring the needs and wants of the
12. [One reason why the 2050 Victorian Parliament may not be effective
diverse Australian population is catered for.1]
in its ability to make law is that the Legislative Council is a ‘rubber
[One way in which the representative nature of parliament improves stamp’ upper house.1][This means the level of scrutiny and the role of
its law-making ability is through regular elections, which place the upper house as a house of review may not be adequately fulfilled.
pressure on MPs to represent the views of their constituents or risk As the government holds a majority in both the upper house and
being voted out at the next election.2][Furthermore, compulsory Legislative Assembly, proposed legislation passed from the Legislative
voting ensures a large proportion of individuals in Australia Assembly would likely be approved with little scrutiny and debate
participate in elections and that parliaments are comprised of MPs from the upper house.2][In this case, amendments to and inquiry on
elected by the majority of people. Therefore, if MPs truly represent the public transport bill from non-government members of the upper
their constituents’ views, law-making can be reflective of the house may be limited. This means the upper house may be ineffective
majority’s views and values.3][On the other hand, whilst these regular in forcing changes to the bill, as the government already has the
elections may compel a certain level of representative law-making, required majority of votes to pass the bill. Therefore, the effectiveness
at the federal level, a political term of three or four years may not be of law-making is reduced, as bills may not be thoroughly examined
long enough for productive legislative activity and reform to occur. or reflect the interests of the entire community.3]
This may mean parties may make shallow election promises to
remain elected, whilst never actually implementing the proposed [Another reason why this Victorian Parliament may not be
effective in its ability to make law is the gender composition
law reform.4]
of the parliament.4][In order for parliament to be representative
[Another way in which the representative nature of parliament and effective in law-making, its MPs should reflect the diversity
improves its law-making is that an MP is able to cross the floor and general composition of the society it is designated to create
when voting on legislation if they wish to deviate from the views laws for. If this is not achieved, there may be skewed interests in
7H ANSWERS
of their political party. This is often done by an MP in order to vote law-making.5][In this case, this Victorian Parliament is composed
in line with the views of their constituency, so they can ensure of 79% men, which is not reflective of the roughly 50/50 split
law-making is representative of the community’s views.5][However, of men and women observed in the Victorian population. Hence,
despite this ability to cross the floor, MPs may often feel compelled the law-making interests of women in regards to public transport
to vote with their political party, rather than in line with the desires may be under or misrepresented, reducing the effectiveness
of their electorate or electoral district, reducing the representation of parliament’s law-making.6]
of their constituents’ views in parliament’s law-making.6]
ANSWERS 577
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I have provided one reason why the 2050 Victorian I have provided information about the principle
Parliament may not be effective in its ability to make law.1 of representative government.1
I have provided information about my chosen reason.2 I have provided one aspect of the role of the High Court
in protecting the principle of representative government.2
it to my chosen reason.3 I have provided a second aspect of the role of the High Court
in protecting the principle of representative government.3
I have provided a second reason why the 2050 Victorian
Parliament may not be effective in its ability to make law.4 I have referred directly to the relevant sections of the
I have provided an example from the scenario and linked 7. [Representative government is a system in which members of
it to my chosen reason.6 parliament are elected by the people of a community or nation
to best represent the needs and views of those people.1][Sections
I have used paragraphs to organise my response. 7 and 24 of the Australian Constitution require members of the
Senate and the House of Representatives to be ‘directly chosen
I have used signposting in my response, such as by the people’, respectively.2][This enforces the principle of
‘One reason’ and ‘Another reason’. representative government and ensures parliament makes laws
that reflect the views and values of society. If parliament creates
laws that infringe upon the principles of representative government
7I T
he Constitution as a
protected by the Constitution, the High Court may declare the law
ultra vires, meaning it becomes invalid.3]
check on parliament – I have defined the term ‘representative government’.1
representative government I have provided information about ss 7 and 24 of the

Australian Constitution.2
Check your understanding I have provided an example of how ss 7 and 24
1. A. True. Explanation: Representative government is a fundamental of the Australian Constitution protect the principle
democratic principle that ensures the government of the day creates of representative government.3
laws that reflect the views and values of the majority of society.
2. Section 7 of the Australian Constitution requires members of the

8. [The principle of representative government is protected by
sections 7 and 24 of the Australian Constitution and is a system
Senate to be directly chosen by the people, whilst section 24 requires
in which members of parliament are elected by the people of a
members of the House of Representatives to also be directly chosen
community or nation to best represent the needs and views of those
by the people.
people.1][The High Court can declare a law, or part of a law, invalid if
3. A. True. Explanation: The High Court is given power under it breaches the principle of representative government and has been
ss 75 and 76 of the Constitution to hear matters arising under made beyond the law-making powers of parliament.2][Additionally,
the Constitution or involving its interpretation. when interpreting the Australian Constitution, the High Court
may recognise implied rights, such as the freedom of political
4. Strengths: III communication, that are fundamental in upholding the principle
Limitations: I; II of representative government.3][However, the High Court can only
interpret the Constitution and declare a law, or part of a law, invalid
5. B. False. Explanation: The High Court can only protect the principle
for breaching the principle of representative government if a case
of representative government relevant to the facts of the case
before it. Therefore, the High Court cannot create laws to further is brought before it.4]
protect representative government outside the case.
I have provided information about the principle
of representative government.1
Preparing for exams
I have provided one aspect of the role of the High Court
Standard exam-style in protecting the principle of representative government.2
6. [The principle of representative government is outlined in ss 7 and 24 I have provided a second aspect of the role of the High Court
of the Australian Constitution and is a system where members of in protecting the principle of representative government.3
parliament are elected by the people to best represent the views of
the majority.1][If an individual believes parliament has passed a law I have provided one limitation of the role of the High Court
that breaches the principle of representative government, the High in protecting the principle of representative government.4
7I ANSWERS
Court can interpret the Constitution and may declare the law, or part
of the law, as ultra vires, meaning it becomes invalid.2][The High I have referred directly to the relevant section of the
Court’s interpretation of the Constitution may also recognise implied Constitution in my response.
rights, which are not explicitly outlined in the Australian Constitution
but are considered to exist. These implied rights may be fundamental I have used connecting words, such as ‘Additionally’
and ‘However’.
in protecting the principle of representative government.3]
578 ANSWERS
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9. [In Roach v Electoral Commissioner, sections 7 and 24 of the Australian [Overall, the High Court plays an important role in acting as a check
Constitution were interpreted by the High Court to protect the on parliament in law-making through its ability to declare laws
principle of representative government, which is a system in which invalid. However, the High Court is limited in its abilities as it can
members of parliament are elected by the people of a community only do so when a case is brought before it.6]
or nation to best represent the needs and views of those people.1]
[As these sections require members of the Senate and the House of I have provided an introduction to my response.1
Representatives to be ‘directly chosen by the people’, the decision
in Roach v Electoral Commissioner declared the legislation banning I have provided one strength of the role of the High Court
all prisoners from voting as being in breach of ss 7 and 24 of the in protecting representative government.2
Constitution.2][As a result, the voting rights of prisoners was
I have provided a second strength of the role of the
preserved and the principle of representative government was
High Court in protecting representative government.3
protected.3][However, ss 7 and 24 of the Constitution do not protect
the right to vote for all prisoners, as the High Court found that I have provided one limitation of the role of the
those serving a prison term over three years should not be allowed High Court in protecting representative government.4
to vote and that restrictions on voting are valid when there are
substantial reasons. Therefore, whilst the decisions in Roach v Electoral I have provided a second limitation of the role of the
Commissioner protected the principle of representative government, High Court in protecting representative government.5
parliament can still impose restrictions on who can vote.4]
I have provided one way sections 7 and 24 of the back to the question.6
Australian Constitution have protected representative
government.1 I have referred directly to the relevant section of the
I have provided information about how sections 7
and 24 of the Australian Constitution have protected I have used paragraphs to organise my response.
representative government.2
I have provided an example from the case and linked it to ‘One strength’ and ‘Another strength’.
protecting representative government.3
I have used connecting words, such as ‘However’ and ‘Thus’.
I have provided one limitation from the case and linked it
to the role of the High Court in protecting representative
government.4 12. Strengths: I; III
Limitations: II; IV
I have referred directly to the relevant sections of the
Constitution in my response. 13. [The High Court serves an important role in acting as a guardian
of the Australian Constitution, despite the costs and time associated
I have used connecting words, such as ‘As a result’ and with bringing a claim to the High Court.1]
‘However’.
[One strength of the High Court as a guardian of the Australian
Constitution is that if Sally brings her claim to the High Court, it can
declare the law, banning all people under the age of 30 from voting
Extended response in elections, invalid.2][This will occur if the High Court finds that
the law breaches sections 7 and 24 of the Australian Constitution,
10. Strengths: II; III indicating it has been made beyond the law-making powers
Limitations: I; IV; V of parliament.3][Additionally, the High Court is an independent
judiciary, meaning it is not subject to the influence of other
11. [The role of the High Court in protecting the principle of representative branches of government.4][This independence enables the High
government acts as a check on parliament in law-making, despite
Court to interpret ss 7 and 24 of the Constitution and declare the
some limitations.1]
law, banning all people under the age of 30 from voting in elections,
[One strength of the High Court in protecting the principle invalid without political influence or bias.5]
of representative government is that it can declare a law, or part
of a law, invalid if it breaches the principle of representative
[However, one limitation of the High Court as a guardian of the
Australian Constitution is that the costs and time associated with
government and has been made beyond the law-making powers
bringing a case to the High Court are high, meaning Sally may not
of parliament.2][Another strength is that the High Court is an
have the resources to initiate her claim.6][This reduces the High
independent judiciary, meaning it is not subject to the influence
Court’s ability to act as a guardian of the Constitution, as it is unable
of other branches of government. This independence enables the
to interpret ss 7 and 24 and determine if the law banning those
Court to impartially interpret the Constitution and identify breaches
under 30 from voting is unconstitutional.7][Another limitation
of representative government, doing so without being influenced
is that the High Court can only declare the law invalid if a case
by political considerations.3]
is brought before it by Sally or another individual with standing.8]
7I ANSWERS
[However, one limitation of the High Court in protecting the principle

of representative government is that High Court judges are appointed [Overall, the High Court can act as a guardian of the Constitution as it
is an independent judiciary that is capable of declaring the law invalid
by the government of the day. This may lead to the appointment
without facing parliamentary pressure. However, this can only occur
of judges that are sympathetic towards the government’s position,
if Sally or another individual with standing brings the case to the High
rather than being impartial.4][Another limitation is that, as the cost
Court, which can be expensive and time-consuming.9]
and time associated with bringing a case to the High Court are high,
few cases are likely to be initiated in the High Court. Thus, the court’s
ability to act as a check on parliament in law-making is reduced.5]
ANSWERS 579
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I have provided an introduction to my response.1 7J T

he Constitution
I have provided one strength of the High Court in
interpreting ss 7 and 24 of the Australian Constitution.2
as a check on parliament
– the separation of powers
and linked it to the ability of the High Court to act
as a guardian of the Australian Constitution.3 Check your understanding
I have provided a second strength of the High Court in 1. B. Explanation: The separation of powers ensures there is no abuse
interpreting ss 7 and 24 of the Australian Constitution.4 of powers in the parliamentary and judicial system by establishing
executive, legislative, and judicial branches of power.
and linked it to the ability of the High Court to act 2. The executive is the branch with the power to administer laws and
as a guardian of the Australian Constitution.5 conduct the business of the government, whereas the legislative
power is exercised to create laws in Australia. Finally,the judicial power
I have provided one limitation of the High Court in ensures the independent application of laws to resolve legal matters.
interpreting ss7 and 24 of the Australian Constitution.6
3. B; C; D. Explanation: Judges are part of the judiciary and must
I have provided information about my chosen limitation remain completely independent from the executive under the
and linked it to the ability of the High Court to act separation of powers principle.
as a guardian of the Australian Constitution.7
4. C. Explanation: Section 71 of the Constitution contains information
about judicial power.
I have provided a second limitation of the High Court
in interpreting ss 7 and 24 of the Australian Constitution.8 5. A. True. Explanation: In theory, executive powers reside with the
Governor-General. However, in practice, the power to manage
government business and administer laws resides with Cabinet,
whose members also form part of the legislative branch of
government.
I have referred directly to the relevant sections of the
6. A; C; D. Explanation: Whilst the prime minister needs an appropriate
level of power and authority to effectively govern a country, this is not
the main purpose of the separation of powers, which more broadly
focuses on the power distribution within the parliamentary and judicial
system as a whole.
‘One strength’ and ‘one limitation’.

Preparing for exams
and ‘However’.
Standard exam-style
7. [The executive power is the power, vested in the King and exercised
Linking to previous learning by the Governor-General, to maintain and administer the law and
the business of government.1][In practice, this power is usually
14. [One role of the House of Representatives is to represent the
carried out by Cabinet, which includes senior ministersof the
people in law-making, which can be enacted by ensuring the views
and values of the Australian people are reflected when new laws government of the day.2]
or amendments to existing laws are suggested.1][This upholds the
I have defined the term ‘executive power’.1
principle of representative government as members of the House
of Representatives are directly chosen by the people and are therefore,
I have provided information about the executive power.2
expected to make laws on behalf of the Australian people.2]
I have provided one role of the House of Representatives.1 8. [The separation of powers acts as a check on parliament’s law-making
by ensuring no singular body has complete power to make and enforce
I have provided information about how my chosen role laws, therefore preventing abuses of power.1][This is maintained
upholds the principle of representative government.2 through the establishment of three separate branches of power;
the executive, legislative, and judicial powers. Whilst executive and
legislative powers are exercised when managing the business
‘One role’.
of government and creating laws, respectively, the judicial power
is the ability of courts and tribunals to enforce laws and resolve
legal matters.2][Therefore, by ensuring one body cannot make and
administer laws while also prosecuting legal matters, proportionate
7J ANSWERS
power can be distributed between different bodies and misuses

of power are prevented. As a result, if parliament does attempt
to make laws beyond its law-making powers, such efforts can
be restrained by the judicial branch which can declare such laws
invalid, keeping parliament’s law-making powers constrained.3]
580 ANSWERS
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I have identified how the separation of powers acts 12. [The separation of powers can act as a check on parliament’s
as a check on parliamentary law-making.1 law-making ability to a moderate extent. Whilst the separation of
the legislative branch and judiciary can prevent an abuse of power,
I have provided information about the separation in practice, other branches of power do not operate independently,
of powers.2 meaning checks on an abuse of power may be restricted.1]
I have provided information about the separation

[One reason why the separation of powers is an effective way to
restrain parliament’s law-making powers is that the judiciary can
of powers acting as a check on the law-making powers
declare laws created by parliament ultra vires.2][If the Commonwealth
of parliament.3
Parliament has breached its law-making powers according to the
I have used connecting words, such as ‘Therefore’. Constitution, the High Court, which is independent and not politically
affiliated, has the judicial power to deem the law invalid. Therefore, the
separation of powers ensures there is no abuse of the Commonwealth
9. [Legislative powers are those vested in the parliament that enable it Parliament’s legislative powers by maintaining it can only legislate
to make laws. Generally, the House of Representatives and the Senate within the scope of exclusive and concurrent powers.3]
exercise these powers at the federal level.1][On the other hand, judicial
powers are those vested in the courts and tribunals that enables them
[Moreover, the separation of powers is a valid check on parliamentary
law-making as judicial powers are only vested in the courts and
to enforce laws and resolve legal matters.2][Legislative and judicial
tribunals, which must remain completely independent and separate
powers must remain completely independent from one another to
from legislative and executive powers. Judges cannot hold seats in
avoid any abuses of powers. Therefore, one key difference between
parliament where laws are being made, in the same way parliament
the two powers is that whilst the legislative can create laws, it cannot
cannot prosecute and adjudicate legal matters.4][Hence, the
separately apply those laws in administering justice, which is the role
independence of the judiciary also ensures cases can be determined
of the judiciary.3]
without the influence of external factors, such as political pressures,
given judges cannot be associated with political parties.5]
I have provided information about legislative powers.1
[However, a limitation of the separation of powers’ ability to act as
I have provided information about judicial powers.2 a check on law-making is through the appointment of judges by the
executive.6][The judiciary must remain completely independent
I have provided one key difference between legislative from the executive and legislative branches. However, given judges
and judicial powers.3 are appointed by members of the executive, this may mean the
composition of the judiciary is influenced by the political motivations
I have used signposting in my response, such as ‘one and values of the executive. Therefore, the extent to which the
key difference’. judiciary remains completely independent and able to act as an
unbiased check on law-making may be limited.7]
I have used comparison words, such as ‘On the other
hand’, when distinguishing. [Furthermore, the overlap in the members of both the legislative and
executive powers may limit the ability of each branch of government
to act as a check on each other. If the government holds a majority in
10. [No, this statement is not true as executive power is not always both Houses of Parliament, this can influence the effectiveness of the
exercised by the Governor-General in practice.1][Theoretically, the legislature in acting as a check on the laws introduced by ministers of
Governor-General has the ability to exercise executive powers. the executive.8]
However, in Australia, executive and legislative powers are combined
and operate together.2][This means the power to manage the business [In conclusion, although the separation of powers can act as
of the government and administer the law resides with Cabinet, an effective check on parliament’s law-making, there are certain
composed of the prime minister and senior ministers. Cabinet and limitations in some aspects due to the overlap of the branches.9]
parliament can also exercise legislative powers, enabling them to make
laws.3][Therefore, the Governor-General does not exercise executive I have provided an introduction to summarise my answer
power in practice and the business of government and administration to the question.1
of the law is carried out by government figures and public servants,
I have provided one reason why the separation of powers
such as the police.4]
is an effective check on parliament in law-making.2
I have stated that the statement is not true.1

I have provided one reason why executive power is not I have provided a second reason why the separation of
exercised by the Governor-General in practice.2 powers is an effective check on parliament in law-making.4
I have provided information about members of the I have provided information about my chosen reason.5
executive power.3
I have provided one reason why the separation of powers
I have provided further information about members of the
is limited in its ability to act as a check on parliament
executive power.4
in law-making.6
7J ANSWERS

I have provided a second reason why the separation

Extended response of powers is limited in its ability to act as a check
on parliament in law-making.8
Limitations: II; IV
ANSWERS 581
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I have provided a conclusion to my response that links 7K T

he Constitution as a
I have used paragraphs to organise my response

check on parliament
I have used signposting in my response, such as ‘One
– express protection
reason’ and ‘In conclusion’. of rights
and ‘Moreover’. Check your understanding
1. A. True. Explanation: The Australian Constitution explicitly states
five express rights that are afforded to all Australian citizens.
2. C. Explanation: The wording of the express rights can only be modified
13. a. [ No, MP Anderson does not have the ability to introduce an
after a successful referendum. Therefore, parliament does not have
education bill as the Commonwealth Parliament has neither the
the power to change the words of the Constitution by passing new
exclusive nor the concurrent power to legislate in the area of
legislation, regardless of which house the senator belongs to.
education. Rather, education is a residual power that can only be
legislated on by the states.1][Residual powers are law-making 3. According to section 92 of the Constitution, ‘trade, commerce, and
powers that are not granted to the Commonwealth Parliament intercourse among the States, whether by means of internal carriage
in the Australian Constitution and therefore, belong to the state or ocean navigation, shall be absolutely free’. On the other hand,
parliaments. If MP Anderson were to somehow pass this bill, according to section 117 of the Constitution, Australian Citizens
it would likely be deemed invalid.2][Hence, given education of ‘any State, shall not be subject in any other State to any disability
is within the scope of residual powers and not the concurrent or discrimination which would not be equally applicable to [them]
or exclusive powers of the Commonwealth, it would not be if [they] were... resident in such other State’.
possible for MP Anderson to introduce the Mandatory Education
Material Act 2084 (Cth) into the Commonwealth Parliament.3] 4. B; C; D. Explanation: Section 116 states that the ‘Commonwealth
shall not make any law for establishing any religion, or for imposing
I have identified that MP Anderson does not have the any religious observance, or for prohibiting the free exercise of any
ability to introduce education bills.1 religion, and no religious test shall be required as a qualification for any
office or public trust under the Commonwealth’. Therefore, it does not
I have provided information about residual powers.2 encourage parliament to pass laws that mandate religious practices
in all work industries but rather limits it from doing so.
linked it to the division of powers.3 5. C. Explanation: As per s 51 (xxxi) of the Constitution, if the
Commonwealth Parliament wishes to acquire property, it must
I have used connecting words, such as ‘Hence’. provide ‘just terms’. This means Nora is entitled to fair financial
compensation from the government as her property is being taken
for the airport construction project.
b. [MP Anderson would not be able to act as a judge in determining
a court case involving his Mandatory Education Material Act 6. A. Explanation: Justices cannot deem laws invalid if there is not a case
2084 (Cth) due to the separation of powers.1][The Australian before them regarding the relevant law. Moreover, a referendum
Constitution ensures there is not an abuse of power in the is only required if the Commonwealth Parliament chooses to amend
parliamentary and court systems by establishing the separation or change the wording of the Constitution.
of powers. The Constitution outlines three branches of power: the
legislative, the executive, and the judicial.2][Whilst the legislative Preparing for exams
and executive branches of power overlap, judicial powers, which
are vested in courts and tribunals to enforce the law and resolve Standard exam-style
legal matters, must remain completely independent and cannot be
politically motivated.3][Therefore, MP Anderson cannot determine
7. [One express right is the right to freedom of interstate trade and
commerce. ][According to section 92 of the Constitution, ‘trade,
1
any court case concerning his proposed legislation, as he holds a
commerce, and intercourse among the States, whether by means of
seat in parliament and is not allowed to prosecute and adjudicate
internal carriage or ocean navigation, shall be absolutely free’. This
legal matters according to the separation of powers.4]
means the Commonwealth or state parliaments cannot restrict the
flow of trade and movement of goods, or people, between states.2]
I have identified that MP Anderson cannot determine
the court case due to the separation of powers.1
I have identified one express right entrenched in the
I have provided information about the separation Australian Constitution.1
of powers.2
I have provided information about my chosen
7K ANSWERS
I have provided further information about the express right.2

separation of powers.3
I have referred directly to the relevant section of the
I have provided an example from the scenario and Constitution in my response.
linked it to the separation of powers.4
I have used connecting words, such as ‘Therefore’. express right’.
582 ANSWERS
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8. [The express protection of rights acts as a check on parliament in [Firstly, express rights are enshrined in the Constitution and can
law-making by ensuring parliament does not breach its law-making only be modified or removed through a referendum, meaning they
powers through legislation that infringes on the five express rights cannot be changed by parliament alone.2][This acts as a check on
afforded to all Australian citizens.1][Express rights are fully enforceable parliamentary law-making as it ensures parliament cannot pass
by the High Court, meaning if legislation is passed that infringes legislation that changes the wording of the Constitution without a
upon the rights explicitly stated in the Constitution, the High Court national consensus, protecting the core rights of Australian citizens.3]
may deem it ultra vires once a case is brought by an individual with [Moreover, express rights are fully enforceable by the High Court,
standing.2][Additionally, express rights act as check on parliament meaning if legislation is passed that breaches an express right, an
in law-making by ensuring such rights can only be amended via individual with standing can take the case to the High Court where the
a successful referendum, meaning parliament is prohibited from legislation may be deemed invalid, otherwise known as ‘ultra vires’.4]
passing laws that change the wording of the express rights without [This is a check on parliament in law-making as it can limit the scope
a national vote.3] of law-making and ensure express rights are maintained without
being infringed.5]
I have provided one way express rights act as a check
on parliament in law-making.1 [However, relatively few rights are protected by and entrenched
in the Constitution. This means there are no significant limits on
I have provided information about my chosen way.2 parliamentary law-making with regard to legislating on the core rights
of each citizen, and there are not many rights that are constitutionally
I have provided a second way express rights act as protected.6][Additionally, there is no mechanism preventing
a check on parliament in law-making.3 parliament from passing laws that are constitutionally invalid or
breach the express rights in the first place. Therefore, laws can be
I have used connecting words, such as ‘Additionally’. established that infringe on express rights, and will be enforced until a
case is brought before the High Court where the Act may be deemed
invalid.7][Finally, an individual with standing must bring a case to the
9. [No, this law would not be valid as it infringes upon the constitutional High Court in order to challenge a law. Considering this requirement,
express right to not discriminate against someone based on their tate
in addition to the cost and time-consuming nature of initiating legal
of residence.1][According to s 117 of the Constitution, an individual of
action, legislation breaching one of the express rights may continue
any state shall not be subject to any disability or discrimination from
to remain in force, preventing parliament’s law-making powers from
another state which they would not receive if they were a resident
being checked.8]
of this other state.2][Therefore, the Interstate Employee Fee Act
2056 (Vic) breaches this express right as it discriminates against [In conclusion, whilst the express protection of rights act as a check
interstate employees, like Jorja, by mandating them to pay a fee to on parliament in law-making in some regards, there are notable
work in Victoria, a fee that is not applicable to Victorian citizens.3] limitations to this check due to the limited number of constitutionally
[Although, Jorja may still need to pay the fee if she wishes to begin her protected rights and parliament’s legislative powers.9]
employment before the High Court deems the legislation invalid,
as the Act will remain in force until then.4] I have provided an introduction to my response.1
I have stated that the Interstate Employee Fee Act 2056 I have provided one way express rights act as a check
is invalid.1 on parliament in law-making.2
I have provided information about the express right I have provided information about my chosen way.3
to no discrimination based on one’s state of residence.2
I have provided a second way express rights act as
I have provided an example from the scenario and linked a check on parliament in law-making.4
it to the express right to no discrimination based on one’s
state of residence.3
I have provided information about declaring legislation I have provided one way express rights are limited in
invalid in the High Court and linked it to the scenario.4 acting as a check on parliament in law-making.6
I have referred directly to the relevant section of the I have provided a second way express rights are limited
Constitution in my response. in acting as a check on parliament in law-making.7
I have used connecting words, such as ‘Therefore’ I have provided a third way express rights are limited
and ‘Although’. in acting as a check on parliament in law-making.8

Extended response
10. Strengths: II; V
7K ANSWERS
Limitations: I; III; IV I have used signposting in my response, such as ‘Firstly’

and ‘Finally’.
11. [The express protection of rights can act as a check on parliament
in law-making to a moderate extent, however, there are limitations I have used connecting words, such as ‘Moreover’
on its ability to prevent and proactively limit legislation that and ‘However’.
infringes upon the express rights.1]
ANSWERS 583
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13. [The Constitution can prevent the Commonwealth Parliament from Linking to previous learning
making any laws infringing upon religious freedom to a certain degree.
However, as demonstrated by the Mandatory Religion Classes Act 14. a. [ No, Ceci is not correct and they are not entitled to trial by jury
2075 (Cth), it does not completely prohibit parliament from passing merely because it is an entrenched express rights.1][The right to a
laws about religion even if they infringe upon the express rights.1] trial by jury, as per s 80 of the Constitution, only applies to accused
individuals charged with Commonwealth indictable offences.
[Firstly, the express right to the freedom of religion is fully enforceable Therefore, as they were charged with murder under Victorian
by the High Court. This means if legislation is passed, such as the
legislation, they are not guaranteed a right to a jury trial by the
Mandatory Religion Classes Act 2075 (Cth), that breaches an express
right, an individual with standing, like Jacey, can take a case to the Australian Constitution.2][However, Ceci still has the right to a trial
by jury as this is a right afforded to accused persons in Victoria
High Court to try and get the legislation to be deemed invalid.2]
according to the Criminal Procedure Act 2009 (Vic). Hence, whilst
[However, there is no mechanism preventing parliament from passing Ceci’s right to a jury trial is not protected by the Constitution in this
laws that are constitutionally invalid or breach the express rights in the
case, they are still able to have a trial by jury under Victorian law.3]
first place.3][Therefore, the Act has been passed, despite infringing on
an express right, and will continue to operate until it is deemed invalid
I have stated that Ceci is not correct and provided
by the High Court.4] a brief explanation.1
[On the other hand, the High Court is independent of the executive
and legislature. This means it can deem the Act ultra vires, even if I have provided information about the constitutional
the majority of parliament wishes to enforce it.5][Although, in order right to a trial by jury.2
to challenge a law in the High Court and have it be declared invalid,
I have provided information about the right to a trial
a case needs to be brought forward by an individual with standing.6]
by jury for Victorian accused persons.3
[Though Jacey can prove she has ‘special interest’ in the case, as she
is directly impacted by the legislation as a high school student, there I have referred directly to the relevant section of the
are significant cost and time factors associated with bringing a case Constitution in my response.
to court. Therefore, as a high school student, she may not have the
financial means and time to take a case to court and therefore, the I have used connecting words, such as ‘Therefore’
legislation will remain in force preventing parliament’s law-making and ‘Hence’.
powers from being checked.7]
[Hence, the Constitution can only limit the parliament from making b. [One role of the jury in Ceci’s case is to remain objective. ][This1
laws about religion to a certain degree. Though parliament has the means that the jury must remain independent and unbiased
ability to pass legislation that may infringe upon an express right, toward both Ceci and the prosecution throughout the entire
if it is challenged in the High Court, the law can be deemed invalid.8] criminal proceedings and when determining the verdict. If a juror
believes they are unable to remain objective, they will be excused
during the jury empanelment process.2]
I have provided one way the Constitution can restrict [A second role of the jury is to determine the verdict. ][Once all the
3
the Commonwealth Parliament’s ability to make laws evidence and facts of the case have been presented, the jury must
on religion.2 determine whether Ceci is guilty or not guilty. As this is a criminal
case, a guilty verdict must be determined beyond reasonable doubt
I have provided one way the Constitution is limited in its and a unanimous verdict is required to convict Ceci of murder.4]
ability to restrict the Commonwealth Parliament from
making laws on religion.3 I have provided one role of the jury.1
I have provided an example from the scenario and linked I have provided information about my chosen role.2
it to my chosen way.4
I have provided a second role of the jury.3
I have provided a second way the Constitution can
restrict the Commonwealth Parliament’s ability to make I have provided information about my chosen role.4
laws on religion.5
I have provided a second way the Constitution is limited
in its ability to restrict the Commonwealth Parliament I have linked my answer to the scenario where
from making laws on religion.6 appropriate.
I have provided an example from the scenario and linked I have used signposting in my response, such as ‘One
it to my chosen way.7 role’ and ‘A second role’.

7K ANSWERS
I have used connecting words, such as ‘On the other

hand’, ‘Although’, and ‘Hence’.
584 ANSWERS
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8A Statutory interpretation I have provided an example relevant to the scenario and

linked it to my chosen reason for statutory interpretation.3
Check your understanding I have used signposting in my response, such as

‘One reason’.
1. B. False. Explanation: Judges can only interpret statutes that are
relevant to the case before them. They cannot interpret statutes
voluntarily whenever they wish. 9. [One effect of statutory interpretation is that it can broaden the
meaning of legislation. ][This allows judges to expand the scope of
1
2. C. Explanation: The values of society may be reflected in how judges
the law, and may result in a precedent being applied to more cases.2]
interpret the law.
[Another effect of statutory interpretation is that it can be used to
3. B; C. Explanation: Judges cannot change the wording of legislation. inform parliament’s law-making.3][Parliament may amend legislation
Their interpretation of statutes can be used by parliament to create in response to statutory interpretation, whether that be confirming or
new laws. Clarifying the meaning of words is a reason for statutory rejecting the judge’s interpretation of legislation4]
interpretation, not an effect.
I have provided one effect of statutory interpretation.1
4. Parliament makes laws in futuro, meaning laws are created that will
apply to future events. I have provided information about my chosen effect.2
5. A. Explanation: Deing v Tarola, or the ‘Studded belt case’, served I have provided a second effect of statutory
to clarify the specific meaning of the word ‘weapon’ in the relevant interpretation.3
legislative provision.
I have provided information about my chosen effect.4
6. B. False. Explanation: Parliament has no obligation to create
legislation based on the decisions made by judges. However, it can
codify judges’ decisions if it believes it is appropriate to do so.
‘One effect’ and ‘Another effect’.
Preparing for exams 10. [One reason for statutory interpretation is to clarify the meaning of
Standard exam-style words that could be ambiguous.1][Judges may be required to interpret
the specific meaning of words and identify the scope of the statute
7. [One reason for statutory interpretation is to address the changing and whether it extends to certain areas.2][The court in Finn’s case
nature of words and their meaning. ][As society progresses, the
1
would have to decide whether nail clippers constitute a weapon
meaning of words and how they are used reflects these changes. by interpreting the meaning of the term ‘weapon’.3]
Judges may interpret the meaning of words in line with society’s
values.2][For example, in the past, transgender people were not
[One effect of statutory interpretation is that it creates a precedent
and binds lower courts in the same hierarchy to that interpretation.4]
recognised to be included in Victorian marriage legislation as there
was an assumption that the word ‘man’ meant someone born with [This allows for consistency as cases with similar facts are treated
male body features. If judges interpreted laws in this manner now, the same before the law.5][In Finn’s case, the court’s decision
this would not reflect society’s values.3] as to whether nail clippers constitute a ‘weapon’ may establish
a precedent that will bind lower courts in the same hierarchy
I have identified one reason for statutory interpretation.1 where material facts are similar.6]
I have provided information about my chosen reason for I have identified one reason for statutory interpretation.1
statutory interpretation.2
I have provided an example and linked it to my chosen for statutory interpretation.2
reason for statutory interpretation.3
I have used signposting in my response, such as linked it to my chosen reason for statutory interpretation.3
‘One reason’.
I have identified one effect of statutory interpretation.4
8. [One reason why the word ‘human interference’ may require I have provided information about my chosen effect
interpretation here is that the use of ChatGPT, or technology in of statutory interpretation.5
general, may have be an unforeseen circumstance for legislative
drafters when conceiving the fraud legislation.1][Judges may be I have provided an example relevant to the scenario and
required to interpret the specific meaning of words to identify the linked it to my chosen effect of statutory interpretation.6
scope of the statute and whether it extends to certain areas.2][For
example, Lily’s use of ChatGPT may be considered a non-human
interference on JT’s life, however, their inputs and command of the
8A ANSWERS

program could also be considered to be a human interference.3]
‘One reason’ and ‘One effect’.
I have identified one reason why the phrase ‘human

interference’ may require statutory interpretation.1

for statutory interpretation.2
ANSWERS 585
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Extended response I have used signposting in my response, such as

‘One way’ and ‘Another way’.
Limitations: I; III I have used connecting words, such as ‘However’
12. [Statutory interpretation is an effective way to make law, as it creates
a precedent and can prompt parliament to enact legislative change.
However, there are limitations to the ability of statutory interpretation
to make laws.1] Linking to previous learning
[One way statutory interpretation is an effective way to make law is 13. [The judge is the umpire of a courtroom who oversees all personnel
through the ability of judges to fill in the gaps of legislation and tailor and evidence, whilst upholding rules and procedure. ][Judges can
1
it to the current societal standards.2][For example, in the Mabo Case, interpret the relevant statutes in order to decide the case before
the judges changed the law in order to reflect views of society; that them.2][However, judges cannot interpret statutes of their own
Aboriginal and Torres Strait Islander peoples’ history in Australia volition, a person with standing must bring a case before them
prior to colonisation should be recognised through land ownership in order for statutes to be interpreted.3]
rights.3][Another way statutory interpretation is an effective way to
make law is that judges can apply laws to unforeseen circumstances I have provided information about the role of a judge.1
and broaden or narrow the meaning of legislation accordingly.4]
[A third way that statutory interpretation is an effective way to I have provided one aspect of the role of the judge with
make law is that parliament may consider court decisions when regard to statutory interpretation.2
amending legislation. This can lead to judge-made law becoming
part of legislation.5] I have provided information about my chosen.3
[However, one limitation of statutory interpretation in law-making I have used connecting words, such as ‘However’.
is that parliament has no obligation to use court decisions to inform
law-making.6][Whilst the Commonwealth Parliament passed the
Native Title Act 1993 (Cth) in response to the High Court decision in
the Mabo case, it had no obligation to do so7][Furthermore, judges 8B The doctrine of precedent
are not elected by the people and thus, do not represent the people
when interpreting statutes.8]
[Statutory interpretation plays an important role in creating precedent
and common law, however, its role in contributing to the creation 1. The doctrine of precedent requires judges in lower courts to follow
of legislation is largely limited as parliament has no obligation the reasons for the decisions given by superior courts in the same
to include judge-made law in statutes.9] court hierarchy when deciding on cases before them with similar
material facts.
2. A. True. Explanation: The ratio decidendi forms the binding part
of the judgment, whereas obiter dictum refers to the comments that
I have provided one way statutory interpretation
form the persuasive part of the judgment.
is an effective way to make law.2
3. Binding precedent: I; III
Persuasive precedent: II; IV
linked it to my chosen way.3
4. A. Explanation: Superior courts may avoid following precedent
I have provided a second way statutory interpretation
by reversing it in the same case on appeal, or overruling it in a later
is an effective way to make law.4
case with the same or similar facts.
I have provided a third way statutory interpretation 5. B. Explanation: Precedent is only binding where the material facts
is an effective way to make law.5 of the case are similar to the case in which the precedent was set.
When judges can show there are differences in the facts of the case,
I have provided one limitation of statutory interpretation they can avoid using precedent.
in law-making.6
6. C. Explanation: Even if judges in the lower courts disapprove of a
I have provided an example relevant to the scenario and precedent, they are still bound to follow previous decisions from
linked it to my chosen limitation.7 courts higher in the hierarchy.
I have provided a second limitation of statutory 7. B. False. Explanation: Courts can avoid following precedents if they
interpretation in law-making.8 are higher in the court hierarchy than the court that originally
established the precedent. Additionally, courts can avoid following
I have provided a conclusion to my response that links precedent by distinguishing a precedent, or setting new precedents
back to the question.9 by reversing or overruling the existing precedent.
8B ANSWERS
I have referred directly to relevant legislation

in my response.
586 ANSWERS
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Preparing for exams 11. [The first error in the scenario is that the decision was overruled
on appeal in the Supreme Court of Appeal. ][Overruling a precedent
1
Standard exam-style is when a superior court changes a previous decision made by a lower
court in a later and different case. If it is the same case being heard
8. [The Magistrates’ Court of Victoria may not be bound by a decision on appeal, then changing the decision is referred to as reversing a
of the County Court of Victoria by distinguishing a precedent. This
precedent.2]
is when a lower court avoids applying a precedent by showing the
case which established precedent in the higher court has sufficiently [The second error is that the Victorian Supreme Court – Court
different material facts to the case now being considered by the of Appeal is bound by a decision made by the House of Lords,
lower court.1][Therefore, if the Magistrates’ Court shows the material a court in England.3][Precedents from different jurisdictions, such
facts of a case it is deciding upon are sufficiently different from the as overseas or interstate, are not binding on the Victorian Supreme
case in which the precedent was set in the County Court, it will not Court of Appeal, but may be persuasive.4]
be bound to follow the decision.2]
[The third error in the scenario is that the Supreme Court – Trial
Division follows every part of the Supreme Court of Appeal’s
I have provided one reason why the Magistrates’ Court
decision.5][Throughout a court judgment there is ratio decidendi,
of Victoria may not be bound by a County Court decision.1
which is the reason for the final decision, and obiter dictum, which are
I have provided information about my chosen reason.2 comments made by the way which are merely persuasive for judges
deciding upon future cases. The ratio decidendi is the only binding
I have used connecting words, such as ‘Therefore’. part of the decision and must be followed, unlike obiter dictum,
which are statements that can be disregarded by future judges.6]
9. [Binding precedent is the legal reasoning of a higher court that must I have identified the first error in the scenario.1
be followed by all lower courts in the same court hierarchy where the
material facts are similar.1][Alternatively, persuasive precedent is legal I have provided information about the correct procedure
reasoning that can act as a guide for judges even though they are not for the first error in the scenario.2
bound to follow it.2][One key difference between binding precedent
and persuasive precedent is that persuasive precedent includes I have identified the second error in the scenario.3
decisions made in different countries or court hierarchies, such as
I have provided information about the correct procedure
UK or NSW decisions, whereas binding precedent only includes court
for the second error in the scenario.4
decisions made in the same court hierarchy.3]
I have provided information about binding precedent.1
I have provided information about the correct procedure
I have provided information about persuasive precedent.2
for the third error in the scenario.6
I have provided a key difference between binding

precedent and persuasive precedent.3
I have used signposting, such as ‘The first error’ and
‘The second error’.
I have used comparison words, such as ‘Alternatively’

and ‘whereas’, when distinguishing. Extended response
12. A; C; D
10. [One reason why the court may not be able to stray from precedent
in this case is due to its binding nature.1][Since Priya’s case is being 13. [I agree with this statement to a limited extent as although judges
heard in the County Court and the previous case was heard in the may be bound by existing precedent, there are avenues they can
Court of Appeal, the judge will be bound by the previous decision take to avoid following these established legal principles.1]
as the Court of Appeal is more superior than the County Court.2]
[Judges are bound by previous decisions, where there were
[Unless the court can distinguish the facts from the case which similar material facts to the facts of the current case the lower
created the binding precedent to the material facts of the case, it is court is presiding over, that are made in superior courts in the
likely that the unfavourable precedent will apply to Priya’s case.3] same hierarchy.2][Thus, magistrates are always bound to follow
existing precedent set by other, higher courts in the Victorian court
I have identified one reason why the court may not hierarchy when these decisions relate to similar facts to the case the
be able to change the law.1
Magistrates’ Court is hearing.3]
I have provided information about my chosen reason.2 [However, one way courts may not be bound by precedent is by
distinguishing a precedent. This occurs when the judge can establish
I have provided an example from the scenario and linked that the material facts of the case before them are different to the
8B ANSWERS
it to precedent.3 facts of the case in which the precedent was set.4][A second way
courts can avoid using precedent is if a superior court overrules
a precedent made by a lower court.5][When overruling a precedent,
‘One reason’.
a court hearing a case with similar material facts, at a later date and
in a different case, will invalidate the original precedent and establish
a new precedent that will be binding on all future cases.6]
ANSWERS 587
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4. Judicial activism involves judges taking into account social and

[Therefore, judges are not always bound by precedent and may
be able to utilise various pathways to avoid following previous political factors to interpret the law broadly and in turn, create new
legal principles. Alternatively, judicial conservatism involves judges
decisions they disagree with.7]
interpreting the law narrowly to avoid making controversial changes
I have provided an introduction to summarise the extent to the law.
to which I agree or disagree with the statement, and why.1
5. A. Explanation: Whilst judicial activism allows for courts, particularly
the High Court which is not bound by precedent, to make controversial
I have provided one way judges are bound by precedent.2
changes in the law, an individual must bring the relevant case to court
I have provided information about my chosen way.3 first. The courts cannot make law whenever they wish.
6. A; B. Explanation: Conservative judges are often hesitant to make

I have provided one way judges can avoid using precedent.4
substantial changes to the law and may narrowly interpret the legal
principles, or avoid making changes altogether, therefore restricting
I have provided a second way judges can avoid
the ability of the courts to make law.
using precedent.5
7. B. False. Explanation: Though parliament is composed of elected
and representative individuals, the courts still play an important role
in law-making by interpreting legislation or case law and applying
principles to matters before them.
I have used paragraphs to organise my response. Preparing for exams

I have used signposting in my response, such as ‘One way’ Standard exam-style
and ‘A second way’.
8. [The doctrine of precedent is a rule in which judges must follow
I have used connecting words, such as ‘Thus’ and ‘However’. the reasons for decisions given by superior courts in the same
court hierarchy when deciding a case before them with similar
facts.1][Therefore, if a particular law is unclear, or there is no law
applicable to the legal matter that needs to be resolved, a court may
be required to develop precedent.2][Consequently, this may result in
14. [One reason why the Supreme Court – Trial Division is bound by new common law being established that must be followed by lower
decisions made in the Court of Appeal is because of the hierarchical courts within the same hierarchy in future cases of a similar nature,
demonstrating how the doctrine of precedent influences the courts
arrangement of the courts.1][The Court of Appeal is above the Trial
Division in the court hierarchy, meaning the Trial Division is bound to make law.3]
by decisions made in the Court of Appeal.2]
I have defined the term ‘doctrine of precedent’.1
I have provided one reason why the Victorian Supreme
I have provided information about the doctrine
Court – Court of Appeal is not bound by the decisions of
of precedent.2
the Victorian Supreme Court - Trial Division.1
I have provided information about how the doctrine
of precedent influences the courts’ ability to make law.3
‘One reason’.
and ‘Consequently’.
[Judicial conservatism is a judicial approach where a judge is reluctant

8C C
ourts’ ability to make law
9.
to develop new law as they feel it is the role of parliament, as the
– judicial conservatism elected representative body, to do so.1][On the other hand, judicial
activism is a judicial approach where a judge takes into account
and activism numerous social and political factors when interpreting the law and
deciding cases.2][One key difference between the two approaches
taken by the courts is that judicial activism may result in substantial
Check your understanding and controversial changes in the law, whereas judicial conservatism
will not result in controversial changes to the law as judges adopting
1. A. True. Explanation: Whilst the courts play an important role in this approach will leave law-making to parliament.3]
law-making, they must wait for a case to come before them where
there is no existing law, or the law is unclear in its application I have provided information about judicial conservatism.1
to the case.
8C ANSWERS
I have provided information about judicial activism.2

2. Strengths: III; IV
Limitations: I; II I have provided one key difference between judicial
conservatism and judicial activism.3
3. A. True. Explanation: Conservative judges may be reluctant to change
the law as they feel it is the role of parliament to develop the law, I have used signposting in my response, such as
as it is composed of elected representatives. ‘One key difference’.
588 ANSWERS
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I have used comparison words, such as ‘On the other hand’ I have provided a second reason why judges are effective
and ‘whereas’, when distinguishing. law-makers.3
I have provided one reason why judges are limited in their

10. [One reason why the court may not change the law in Nick’s case law-making ability.4
is the judge may decide to take a judicially conservative approach.1]
[If the judge is reluctant to develop new law, as they feel it is the role I have provided a second reason why judges are limited
of parliament as the elected representative body to do so, it may in their law-making ability.5
result in the application of outdated precedents rather than the
establishment of new ones, irrespective of progressing community I have provided a conclusion to my response that links
values.2][Therefore, if the judge takes a conservative approach in
Nick’s case, they may apply the old-standing principle that Nick’s
lawyer advised him of, rather than changing this existing law.3]
I have provided one reason why the court may not change
‘Firstly’ and ‘Another reason’.
the law in Nick’s case.1
and ‘Overall’.

it to my chosen reason.3 13. A; D
I have used signposting in my response, such as 14. [Judicial activism can be a strength of the law-making process as it
‘One reason’. enables judges to consider a wide range of sociopolitical factors in
their interpretation of the law and the creation of new legal principles.1]
[One reason why judicial activism is a strength of the law-making
process is that judges who take an activist approach feel their role
extends beyond merely applying legal principles to the case before
Extended response them.2][These judges are willing to undertake a secondary role
in developing the common law, which can be beneficial when these
Limitations: I; III progressive changes align with progressive changes in society.3]
[In the Mabo Case, the High Court acknowledged the land rights
12. [I agree with this statement to a moderate extent as, whilst judges of First Nations peoples, overturning the long-standing common
are free from political influence, there are limitations to their ability law notion that Australia was ‘terra nullius’. The judges in this case
to make law.1] undertook a secondary role in developing the law in relation to the
land rights of Aboriginal and Torres Strait Islander people.4]
[Firstly, as judges are not elected by the people, they are free from
political influence. This means they can make controversial changes [Another reason why judicial activism is a strength of the law-making
to the law without worrying about being re-elected.2][Another reason process is that, unlike parliament, judges are not elected by the
why judges are effective law-makers is that the doctrine of precedent people and can, therefore, make controversial changes in the law
enables courts to fill in the gaps of legislation when interpreting without needing to consider the impact such decisions have on their
statutes to apply it to the case before them. When doing so, judges prospects of re-election.5][The High Court ruling abolishing the
can consider a range of issues that have not been contemplated notion that Australia was ‘terra nullius’ prior to British colonisation
by parliament.3] was highly controversial.6][However, as judges are free from political
influence, the court could recognise native title without concern for
[However, one limitation of the ability of judges to make effective law whether it aligned with the views and values of the majority of society
is that judges are not elected by the people. This means that they may
at the time.7]
create laws that do not reflect the views and values of the majority
of society, resulting in laws being ineffective.4][Another limitation is [Therefore, the Mabo judgment revealed the strength of judicial
that judges must wait for an individual with standing to bring a case to activism in allowing judges to make controversial, yet significant,
court, or for a person to be accused of a crime, before they can make changes in the law.8]
new law. Unlike parliament, courts cannot develop laws whenever
they wish.5] I have provided an introduction to my response.1
[Overall, the courts are effective law-makers as they are free from I have provided one reason why judicial activism is a
political influence and can fill in the gaps of legislation. However, this strength of the law-making process.2
is subject to limitations as judges must wait for a case to be brought
before them and may make changes in the law that do not reflect I have provided information about my chosen reason.3
society’s values.6]
I have provided examples from the case study and linked
8C ANSWERS
I have provided an introduction to state the extent them to my chosen reason.4

to which I agree or disagree with the statement,
and a brief reason why.1 I have provided a second reason why judicial activism
is a strength of the law-making process.5
I have provided one reason why judges are effective
law-makers.2 I have provided examples from the case study and linked
them to my chosen reason.6
ANSWERS 589
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7. B. False. Explanation: The doctrine of precedent, judicial conservatism,

and judicial activism are also factors that affect the ability of the courts
to make law.
Preparing for exams
Standard exam-style
‘One reason’ and ‘Another reason’. 8. [One way the costs and time associated with bringing a case to
court may restrict the ability of the courts to make law is that the
I have used connecting words, such as ‘However’. high cost of legal representation, alongside extensive court delays,
may deter a potential plaintiff from initiating a civil claim.1]
[As complex cases are time-consuming and require legal expertise
and representation, a party’s lack of financial resources and time
results in fewer opportunities for judges to develop common law
15. [Judicial conservatism is a judicial approach where a judge is reluctant or declare invalid statute law ‘ultra vires’, restricting law-making
to develop new law as they feel it is the role of parliament, as the by the courts.2]
elected representative body, to do so.1][This upholds the principle
I have provided one way the costs and time in bringing
of representative government because it ensures that judges do not
a case to court may restrict the ability of the courts
make significant changes in the law, as this is parliament’s primary
to make law.1
responsibility considering it the elected representative body of society
and can legislate according to the views and values of the majority.2]
I have defined judicial conservatism.1

I have provided information about how judicial

conservatism upholds the principle of representative 9. [Standing is the requirement that, in order to bring a case to court,
government.2 an individual or group must be affected by, or have a special interest
in, the issues involved in the case.1][The requirement for standing is
important in the development of the law by the courts as it reduces
8D C
ourts’ ability to make the number of frivolous claims being made in court by individuals
who merely have a general interest in the matters involved in a case.2]
law – costs, time, and the [In turn, this reduces delays in the court system and allows more
opportunities for genuine cases to be pursued through the courts,
requirement for standing where there is potential for new legal principles to be established
or for laws to be declared invalid.3]
Check your understanding I have defined the term ‘standing’.1
1. B. Explanation: Judges need to wait for a case to come before them I have provided information about the importance of the
before they can develop the law. Therefore, if parties are reluctant to requirement for standing in the courts’ ability to make law.2
pursue a legal matter through the courts due to the associated costs
and delays, the courts will be unable to develop the law. I have provided further information about the importance
of the requirement for standing in the courts’ ability
2. B. False. Explanation: Victoria Legal Aid is available to a limited to make law.3
degree for financially disadvantaged parties, especially for civil
matters. Therefore, many people who are experiencing financial I have used connecting words, such as ‘In turn’.
difficulties but are still not eligible for assistance may not be able to
bring their cases to court, preventing new laws from being created
by the courts. 10. [Standing is the requirement that, in order to bring a case to court,
an individual or group must be affected by, or have a special interest
3. B; C. Explanation: Whilst Victoria Legal Aid is available in some in, the issues involved in the case.1][The requirement for standing
circumstances, not all parties are eligible and may, consequently, be prevents individuals who have a general interest in a case, and those
restricted from initiating a civil claim. As judges must wait for cases who want to prove a point, from bringing their case to court.2][Kirby is
to come before them to develop the law, this restricts the courts’ likely to meet the standing requirement as her private rights have been
ability to make law. directly affected by the matters involved in this case.3][This is because
the boundary fence built by Kirby’s neighbour is blocking sunlight into
4. A potential party to a legal dispute may be deterred by court delays,
such as delays caused by lengthy trial procedures. As a result, they Kirby’s garden, demonstrating her private rights are being infringed.4]
may choose to not initiate proceedings in the court.
8D ANSWERS
I have defined the term ‘standing’.1

5. A; C; E. Explanation: In order to establish standing, a party must
be affected by, or have a special interest in, the issues involved I have provided information about the requirement
in the case. It is not enough for a party to show that they merely for standing.2
have a general interest in the case, or want to prove a legal point.
6. Strengths: I
590 ANSWERS
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I have provided one reason why Kirby will likely meet the time associated with a trial.6][As a result, the total time of Alex’s court
standing requirement.3 proceedings may be lessened and the costs of the proceedings may
be reduced. Therefore, Alex may be encouraged to pursue his case if
I have provided an example from the scenario and linked he is aware it will not be a significant financial or time burden, allowing
it to my chosen reason.4 the High Court to develop law in this case.7][Another way the courts
are able to overcome the limitations of time is the existence of the
Victorian court hierarchy, which enables administrative convenience.
11. [One reason why the court may not be able to change the law in This separates disputes across the hierarchy and minimises delays.8]
this case is due to the costs involved in bringing a case to court. ] 1
[Therefore, Alex’s case would be heard by a suitable court and delays
[The costs involved in bringing a case to court are significant and across the courts could be minimised as different courts are allocated
Ahmet may not be able to afford to pursue his case as he is currently cases according to their capacity and jurisdiction.9]
unemployed.2][For example, Ahmet may not be able to afford legal
representation or court filing fees, therefore he may be unable to bring [Overall, whilst there are some systems in place to reduce the costs
and time associated with bringing a case to court, such as judges
his case to court.3][As a result, the court would not be able to declare
giving directions and the existence of the Victorian court hierarchy,
the Religion Prohibition Act 2056 (Cth) invalid as judges require a case
the high financial expenses and court delays limit the number of cases
to come before them before they can develop the law and potentially
brought by forward by individuals, restricting the ability of the courts
declare a piece of legislation invalid.4]
to make law.10]
I have provided one reason why the court may not be able
to change the law in Ahmet’s case.1
I have provided information about my chosen reason.2 I have provided one way the costs and time in bringing
a case to court restrict law-making by the courts.2
I have provided information about how the court may
I have provided a second way the costs and time in bringing
be unable to change the law in Ahmet’s case.4
a case to court restrict law-making by the courts.4
‘One reason’.
I have provided one way the courts are able to overcome
the limitations of costs and time in law-making.6
Extended response I have provided an example from the scenario and linked
12. Strengths: III; IV
Limitations: I; II I have provided a second way the courts are able to
overcome the limitations of costs and time in law-making.8
13. [The courts are able to overcome the limitations of costs and time in
making laws to a moderate extent. Whilst high costs and extensive I have provided an example from the scenario and linked
court delays may deter individuals from bringing their cases to court, it to my chosen way.9
there are processes and procedures in place to assist parties in
overcoming these barriers.1] I have provided a conclusion to my response that links
[Firstly, the reluctance of parties, such as Alex, to pursue a matter
through the courts due to the costs and time involved results in I have used paragraphs to organise my response.
less opportunity for judges to develop common law.2][If Alex were
to pursue a case against Betty’s Beans, there would be significant I have used signposting in my response, such as ‘Firstly’
legal costs, such as the cost of legal representation, and it would and ‘Another limitation’.
be a time-consuming process. Therefore, if the case is not brought
forward to the High Court, the precedent will remain and be left I have used connecting words, such as ‘Therefore’
unchallenged even if it is outdated and ineffective.3][Another and ‘However’.
limitation created by the costs and time associated with bringing
a case to court is that the eligibility criteria for Victoria Legal Aid
(VLA) is strict for civil cases, as it is generally limited to criminal Linking to previous learning
matters and is not an exhaustive resource for civil disputes.4][Alex,
who is a university student, may not have the financial means to 14. Strengths: I; II
pursue a legal case, but may also be ineligible for VLA assistance Limitations: III; IV; V
8D ANSWERS
due to its strict criteria. Thus, if he is unable to bring his case to the
courts due to a lack of legal support and representation, the ability 15. [The Victorian courts play an important role in law-making by
of the courts to develop the law in this area is also hindered.5] creating precedent and judges having an approach of judicial activism.
However, there are factors that restrict the ability of the courts to make
[However, one way the courts can overcome these limitations related law, such as the requirement for standing and the costs and time
to costs and time is through the judge’s directions. Judges often give
in bringing a case to court.1]
directions to parties, such as limiting the number of witnesses or
topics that witnesses may be questioned on, to reduce the costs and
ANSWERS 591
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[One strength of the role of the Victorian courts in law-making is

their ability to set precedents. This involves a court establishing legal
8E T
he relationship between
principles in circumstances where no statute or common law exists,
or it is not clear how the law should be applied to the case before
courts and parliament
them, thereby developing law.2][However, judges can only make law
ex post facto, meaning they make laws retrospectively only after a
in law-making
case is brought before them and cannot be proactive in reforming
the law.3][Another limitation of the role of the Victorian courts in Check your understanding
law-making is the requirement for standing. This means judges must
1. B. False. Explanation: As parliament is responsible for establishing
wait for an individual who is affected by, or has a special interest in,
most of the courts, and the courts are responsible for applying the
the issues involved in the case to bring it to the courts before they can
legislation created by parliament, they have a close relationship
establish a new law.4]
in law-making.
[Additionally, judicial activism can promote law-making in the courts
and ensure laws remain reflective of current social views and values. 2. C. Explanation: Obiter dictum refers to the judge’s comments made
Judges who take a judicial activist approach consider a range of in passing to provide context to a legal decision. These comments
social and political factors to interpret the law broadly and, in turn, may be influential on other judges or parliament’s future law-making.
create new legal principles that more accurately reflect the current
3. A. True. Explanation: Whilst parliament holds a high level of
sociopolitical climate.5][On the other hand, judicial conservatism
law-making supremacy in most other regards, where the Australian
restricts the Victorian courts from engaging in their role in law-making
Constitution specifically prevents parliament from law-making in a
as judges who adopt this approach are reluctant to develop new laws
certain area, the parliament does not have supremacy. Additionally,
as they feel it is the role of parliament, as the elected representative
parliament cannot abrogate decisions made by the High Court
body, to do so, limiting the development of the law through
on constitutional matters.
the courts6]
4. True: III; IV
[Overall, the Victorian courts play an important role in law-making False: I; II
through establishing precedent and engaging in judicial activism.
However, there are some limitations as judges may take a conservative
5. B. False. Explanation: Whilst parliament may be influenced by
approach to law-making and individuals without standing are
statements on law made in obiter dictum by judges in court, it is
restricted from bringing their case to court, providing fewer
under no obligation to take on these comments and incorporate
opportunities for the courts to develop the law.7] them into law-making.

Preparing for exams
I have provided one strength of the role of the Victorian
courts in law-making.2 Standard exam-style
I have provided one limitation of the role of the Victorian 6. [One feature of the relationship between the courts and parliament in
courts in law-making.3 law-making is the supremacy of parliament.1][This is the legal concept
that parliament has the freedom to make, amend, or abolish laws,
I have provided a second limitation of the role of the subject to limitations outlined in the Australian Constitution, and is
Victorian courts in law-making.4 supreme over other arms of government, such as the executive and
the judiciary. Therefore, parliament establishes most of the courts,
I have provided a second strength of the role of the manages their respective jurisdictions, and therefore controls their
Victorian courts in law-making.5 ability to create common law.2]
I have provided a third limitation of the role of the I have provided one feature of the relationship between
Victorian courts in law-making.6 the courts and parliament in law-making.1
I have provided a conclusion to my response that links I have provided information about my chosen feature.2
I have used paragraphs to organise my response. ‘One feature’.
I have used signposting in my response, such as I have used connecting words, such as ‘Therefore’.
‘One strength’ and ‘Another limitation’.
I have used connecting words, such as ‘However’ 7. [One way in which the courts may be able to influence parliament
and ‘Additionally’. in law-making is through comments made in obiter dictum. ][When 1
handing down their judgment, obiter dictum comments, consisting of

an opinion of the law or principle applied to the case, may be made
by the judge or magistrate presiding over the case to inform the
8E ANSWERS
parliament of certain issues that may exist with the current law. These
comments have proven to be influential on parliament’s law-making
and may spur it to codify or abrogate a common law principle.2]
592 ANSWERS
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I have provided one way in which the courts may be able I have provided an introduction to my response.1
to influence parliament in law-making.1
I have provided one way the principle of ‘holo-limits’
I have provided information about my chosen way.2 could be decided by parliament.2
I have used signposting in my response, such as I have provided a second way the principle of ‘holo-limits’
‘One way’. could be decided by parliament.3

8. [The codification of common law is the process of parliament
confirming common law precedent by enacting legislation to
give effect to the legal principles.1][Alternatively, the abrogation
of common law is the process of parliament overruling common Extended response
law by creating a statute contrary to a decision of the courts.2] 11. True: I; II; IV
[One key difference between codification and abrogation of False: III
common law is that whilst codification demonstrates a positive
affirmation of the principles established in court, abrogation is 12. [Parliament and the courts, such as the Supreme Court, have a strong
a negative response to a common law principle that ultimately relationship in law-making as they rely on each other to ensure laws
abolishes the court-made principle.3] are effective for society and remain relevant.1]
I have defined the term ‘codification of common law’.1 [One feature of the relationship between parliament and the courts
in relation to assault using electric scooters is abrogation, which
I have defined the term ‘abrogation of common law’.2 is the process of parliament overruling common law by creating
a statute contrary to a decision of the courts and therefore, ruling the
I have provided one key difference between codification common law invalid.2][In this case, parliament was unhappy with
and abrogation of common law.3 the common law created by the Supreme Court in relation to the
matter of assault using electric scooters and chose to abrogate the
I have used signposting in my response, such as principle. This means it passed legislation that directly overruled the
‘One key difference’. common law, potentially because it viewed the application of the law
relating to electric scooters to be inappropriate and incongruent with
I have used comparison words, such as ‘Alternatively’, parliament’s intention for the Act.3]
when distinguishing.
[Another feature of the relationship between parliament and the
courts is parliamentary supremacy, which is the legal concept that
9. [This statement is incorrect, as parliament is the supreme parliament has the freedom to make, amend, or abolish laws, subject
law-making body. ][Parliament has the authority to create laws within
1 to limitations outlined in the Australian Constitution, and is supreme
its constitutional power as it has been provided this power by the over other government branches, such as the executive and the
Australian Constitution. One of these areas over which the parliament judiciary.4][In this case, parliament was able to overrule the decision
has power is the judiciary, meaning parliament is responsible for of the Supreme Court as it is the superior law-making body. As the
establishing most of the Australian courts and their jurisdictions, body that establishes the Supreme Court in the first place, parliament
including the Supreme Court of Victoria.2][Additionally, the Supreme is permitted to manage the court’s decisions in law-making to an
Court is lesser than parliament in law-making, as parliament is able extent, through codification and abrogation.5]
to abrogate, and effectively overrule, any legal principle established
[Courts can also exercise a certain level of influence on parliament
by the Supreme Court.3] in law-making through comments made in obiter dictum. These
comments are made in passing to provide context to a legal decision
I have stated that the statement is incorrect and provided
and often include an opinion on the current state of the law that
a reason for my answer.1
applied to the case.6][In relation to the established principle in relation
to assault using electric scooters, parliament has taken note of the
I have provided one reason why the statement is incorrect.2
judge’s obiter dictum and acted accordingly in law-making. These
I have provided a second reason why the statement comments can be particularly influential as they are a direct review
is incorrect.3 to parliament of how the law is being applied and considered within
society. Consequently, as parliament strives to create and maintain
I have used connecting words, such as ‘Additionally’. effective laws, it can often be influenced to take action in law-making
by the courts.7]
10. [The parliament has two main options in relation to the I have provided an introduction to my response.1
court-established ‘holo-limits’ principle. It may choose to either
codify or abrogate the common law principle.1][If parliament decides I have identified one feature of the relationship between
to codify the ‘holo-limits’ principle, it will formalise and affirm the parliament and the courts.2
court-made law into statute, thus demonstrating its approval and
8E ANSWERS
satisfaction of the judgment against PG Inc.2][However, it may also I have provided an example from the scenario and linked
decide to abrogate the ‘holo-limits’ principle, which demonstrates it to the relationship between parliament and the courts.3
disagreement with the handling of Ms Ashton’s case in the court.
I have identified a second feature of the relationship
By abrogating the principle, parliament would establish a statute
between parliament and the courts.4
that would directly overrule the common law and invalidate the
‘holo-limits’ precedent.3]
ANSWERS 593
Back to contents
I have provided an example from the scenario and linked [One reason parliament is effective in law-making is due to its
it to the relationship between parliament and the courts.5 supremacy and structure, as established by the Constitution.
Parliament has the freedom to make, amend, or abolish laws, subject
I have identified a third feature of the relationship to limitations outlined in the Australian Constitution. It is supreme
between parliament and the courts.6 over the other branches of government, the executive and judiciary,
which renders it very effective in law-making.2][The bicameral
I have provided an example from the scenario and linked structure of both the Commonwealth Parliament and the Victorian
it to the relationship between parliament and the courts.7 Parliament guarantees that all legislation is scrutinised by two
Houses of Parliament at both the federal level and in Victoria. This
I have used paragraphs to organise my response. scrutiny acts as a check on all proposed legislation.3][This assists
in parliament’s law-making because if parliament consisted of only
I have used signposting in my response, such as one house in which the government of the day had a majority, the
‘One feature’ and ‘Another feature’. government in power could influence changes in legislation that
align solely with its political agenda rather than enacting statute that
I have used connecting words, such as ‘Consequently’.
reflects the views and values of all constituents. The requirement for
legislation to pass through a second house of parliament can prevent
this from happening.4][However, in a situation where the government
Linking to previous learning of the day holds a majority in both houses, the upper house may
‘rubber stamp’ bills, whereby it passes legislation with little scrutiny.
13. [No, this statement is not correct. Whilst statutory interpretation In these circumstances, a bill may undergo little to no consideration,
and the doctrine of precedent are valid means by which courts can therefore limiting the effectiveness of law-making by parliament.5]
influence law-making, they are not the only ways they can do so.1]
[Under the doctrine of precedent, courts are permitted to create [Another reason parliament is effective in law-making is due to the
fact that international pressures can act as a check on parliament
common law. Common law applies to the court hierarchy internally
in law-making.6][International pressures are the influence that other
and is usually created when courts apply the statutes relevant to the
countries and international organisations exert on parliaments to
case before it in the process of statutory interpretation. Therefore, by
ensure the laws created comply with international standards. Australia
physically making law, the courts are able to influence law-making.2]
is a member of the United Nations and is a signatory to many
[However, beyond precedent and statutory interpretation, the courts international treaties, which influences law-making by parliament.7]
contribute to law-making by influencing parliament to amend or create [For example, the Commonwealth Parliament may be more inclined to
legislation via obiter dictum.3][Obiter dictum refers to statements introduce or modify legislation to ensure it upholds human rights since
accompanying a judgment that can include opinions and reservations iIf Australia is found to be in breach of human rights treaties it is a
on the law applied to a specific case. Within these comments, judges signatory to, parliament will likely face criticism from other countries.8]
may flag potential changes to the law they wish to see. Parliament
can then choose whether to adopt these recommendations into [Courts can also be effective in law-making, but their effectiveness is
their law-making by reforming the law.4][Additionally, the courts can limited by some factors.9][One reason courts are effective law-makers
unintentionally influence parliament and law-making through the is because they create law through making decisions that then become
outcome of a case. If a court hands down a particular decision that precedents for other, lower courts in the same hierarchy to follow.
highlights an issue with the current law, public unrest and community Judges can create new legal principles or interpret existing legislation.
This allows judges to create and apply legal principles that specifically
feedback may then spur law-making and reform by the parliament.5]
address the matters in the case by considering issues that have not
I have stated that the statement is incorrect and provided been accounted for by legislation.10][However, there are limitations
a brief reason for my answer.1 to the courts’ ability to make law. The costs and time associated with
bringing a case to court and the requirement for standing all act as
I have provided one reason why the statement is correct.2 barriers for the courts in law-making.11][For example, the reluctance
of parties to pursue a matter through the courts due to the costs
I have provided a topic sentence to introduce the main and time required for a case to be resolved may result in some
idea of my second paragraph.3 cases not being heard in court, limiting the opportunity for judges to
develop common law. Consequently, this may result in outdated and
I have provided one reason why the statement is incorrect.4 ineffective precedents remaining binding as they are not challenged for
long durations.12][Additionally, the requirement for standing limits the
I have provided a second reason why the statement ability of individuals with a general interest in an issue to change the
is incorrect.5 law as they are unable to pursue the matter through the courts if they
have not been directly affected by the matter or do not have a special
interest in the case. This slows the development of the law through the
courts as individuals who do not have standing, but wish to initiate a
case, cannot do so.13]
[Another reason courts can be effective law-makers is if judicial
activism is practised. ][The degree to which a judge acts
14
14. Enhances: I; II; IV; V; VIII
8E ANSWERS
progressively may also impact the courts’ law-making ability and

Limits: III; VI; VII
effectiveness. Judges are said to operate judicially on a spectrum,
15. [I agree with this statement to a moderate extent. Whilst parliament ranging from acting conservatively or as an activist.15][Unlike
is the supreme law-making body, the courts are able to influence members of parliament, judges are not elected by the people
law-making through both their relationship with parliament and by and may, therefore, be more inclined to make controversial or
establishing precedent when resolving cases before them. Therefore, progressive changes to the law without the fear of not being re-
the courts’ ability to make laws should not be overlooked.1] elected. This can result in the courts more easily altering common
594 ANSWERS
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law principles in Australia to better align with progressive shifts

in society’s values.16][However, judicial activism is limited in that
reason’ and ‘Another reason’.
parliament can abrogate any precedents set by the courts, by
passing contrary legislation to override it. Therefore, even when
I have used connecting words, such as ‘Therefore’ and
courts make progressive changes to the law, these changes can be
‘However’.
overridden, demonstrating how the courts’ ability to change the law
can be stifled.17]
[To conclude, there is no perfectly effective law-making institution.

Whilst parliament may be specifically designed for law-making, there
are certain structural drawbacks that can reduce the effectiveness of
its legislation. The courts can also be effective in law-making, but are
faced with significant limitations to their ability to make law.18]
I have provided an introduction to state the extent

to which I agree or disagree with the statement,
and a brief reason for my answer.1
I have provided one feature of the relationship between

parliament and the courts in law-making.2
I have provided information about one factor affecting

parliament’s ability to make law.3
I have provided one way my chosen factor enhances the

ability of parliament to make law.4
I have provided one way my chosen factor limits the

I have provided information about a second factor

affecting parliament’s ability to make law.6

I have provided a second way my chosen factor enhances

the ability of parliament to make law.8
I have provided a topic sentence for my paragraph.9
I have provided information about one factor enhancing

the courts’ ability to make law.10
I have provided information about one factor limiting the

courts’ ability to make law.11
I have provided one way my chosen factor limits the

ability of the courts to make law.12
I have provided a second way my chosen factor limits the

I have provided a topic sentence for my paragraph.14
I have provided information about one factor enhancing

the courts’ ability to make law.15

I have provided one way my chosen factor is limited in

8E ANSWERS
enhancing the ability of the courts to make law.17

ANSWERS 595
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9A Reasons for law reform 9. [One reason for law reform in relation to the introduction of robot
bees is to ensure the law remains reflective of technological
advancements.1][The advancement of robotic technology and robotic
Check your understanding bees could lead to the breach of privacy for many individuals as the
footage from the robotic bees is publicly accessible. 2][Therefore,
1. A. Explanation: It is important for parliamentarians to consult
given that there are no current laws that regulate the cameras
the community so that shifts in community values can be
attached to the bees, law reform is required so that the law remains
reflected in law.
relevant to the current day technologies.3]
2. A; B. Explanation: Technology is becoming more widespread,
creating a greater need for changes to the law, and rendering some I have provided one reason for law reform and linked
laws and the phrasing contained in them outdated. it to the scenario.1
3. A; C. Explanation: For a law to be effective, people must be willing I have provided an example from the scenario.2
to follow and abide by it. Therefore, ensuring a law reflects
community values can increase the likelihood of people obeying I have provided information about my chosen reason
and respecting it. for law reform and linked it to the scenario.3
4. C. Explanation: The $550 Coronavirus Supplement payment I have used signposting in my response, such as
is an example of economic law reform as it was introduced due ‘One reason’.
to high levels of unemployment during the COVID-19 pandemic.
5. The shared beliefs of the local, state, and national communities are
always changing. Therefore, laws must adapt to suit these changing
beliefs, so that citizens are more likely to respect and obey the law. 10. [The Shoe Bill’s main purpose is to protect the community from
harm.1][The small town of Indio is riddled with construction nails on
6. A; B; C. Explanation: Parliament will not seek to increase delays, the ground. Therefore, people without shoes may experience foot
as doing so will not improve the legal system. injuries if they are not wearing footwear.2][Consequently, this bill
aims to protect the community by preventing harm from occurring to
individuals who walk barefoot on the ground.3]
Preparing for exams
Standard exam-style
[Moreover, the Shoe Bill reflects community values. ][Laws must
4
adapt to suit changing beliefs, so that citizens are more likely

to respect and obey the law.5][In the town of Indio, wearing no
7. [One reason for law reform is shifts in community values, as the
shoes in public was previously acceptable. However, as times
shared beliefs of the community are always changing. ][Therefore,
1
have changed, alongside the increased risk of stepping on nails,
the law must adapt to these evolving values, so that citizens are
community values have shifted, and therefore so too should the
more likely to respect and obey the law.2]
law. This shift in community values has been indicated by the 93%
I have provided one reason for law reform.1 support by the community for the bill.6]
I have provided information about my chosen reason for I have provided one reason for law reform.1
law reform.2
I have provided an example from the scenario.2
‘One reason’. I have provided information about my chosen reason
for law reform and linked it to the scenario.3
I have provided a second reason for law reform.4
8. [Law reform in relation to sexual offences may be necessary I have provided information about my chosen reason
to improve the legal system. ][As of 2021, the justice system’s
1 for law reform.5
response to sexual offences is evidently inadequate, given 87%
of victims do not report instances of sexual assault to the police.2]
it to law reform.6
[Therefore, law reform is required in order to protect victims of
sexual assault and improve their access to the justice system, I have used paragraphs to organise my response.
therefore improving the justice system overall.3]
I have used connecting words, such as ‘Consequently’
I have provided one reason for law reform and linked it to and ‘Moreover’.
the stimulus.1
I have provided an example from the stimulus and linked

it to law reform.2 Extended response
9A ANSWERS
I have provided information about my chosen reason for 11. Protection of the community: I; IV
law reform and linked it to the stimulus.3 A shift in community values: II; III
Note: Protection of society is also an acceptable answer.
596 ANSWERS
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12. [Smoking in outdoor dining areas is linked with shifts in community law reform to comply with the Convention it is party to and prevent
values and the protection of society as reasons for law reform.1] further inhumane treatment of refugees.4]
[One reason for the passing of the Tobacco Amendment Act 2016 (Vic), I have provided one way international pressures are
and the subsequent prohibition of smoking in outdoor areas, was to a reason for law reform.1
protect the community from the impacts of second-hand smoking.2]
[Law reform may be required to protect communities from many I have provided an example relevant to my
sources of harm, particularly when these groups cannot prevent chosen reason.2
or control the harm that is occurring.3][For instance, non-smokers
cannot control the degree of second-hand smoke they inhale when I have provided information about my chosen example
dining outdoors. Consequently, law reform is necessary to protect and linked it to the need for law reform.3
the community from smoke inhalation in outdoor dining areas.4]
I have provided information about international pressures
[A second reason for the prohibition of smoking in outdoor dining influencing law reform.4
areas is to ensure the law reflects community values. ][The shared
5
beliefs of the state-wide community are ever-changing. Laws, I have used signposting in my response, such as ‘One way’.
therefore, must adapt to suit these evolving beliefs, so that citizens
are more likely to respect and obey the law.6][For instance, community I have used connecting words, such as ‘For example,
values towards smoking have shifted in the past few decades. 73% of and ‘For instance’.
Victorians support a ban on smoking in outdoor dining areas. Hence,
Australian, and specifically Victorian, values are shifting such that
attitudes towards smoking are becoming increasingly unfavourable.7]
9B Influences on law reform
I have identified the links between smoking in outdoor
dining areas and the need for law reform.1 Check your understanding
I have provided one reason for law reform in relation 1. B. False. Explanation: Petitions, demonstrations, and the use of
to smoking in outdoor dining areas.2 the courts are all viable, and arguably, more effective means of
influencing law reform than voting in a representative democracy.
for law reform.3 2. B. Explanation: Petitions do not require participants to physically
mobilise and can be organised digitally.
I have provided an example relevant to smoking in
outdoor dining areas and linked it to my chosen reason 3. A demonstration occurs when a large number of people congregate
for law reform.4 in person and seek to bring attention to a common issue.
I have provided a second reason for law reform in relation 4. B. False. Explanation: E-petitions signed online through the official
to smoking in outdoor dining areas.5 parliamentary website are formally recognised by parliament.
I have provided information about my chosen reason 5. A; B. Explanation: Individuals must have standing to bring an issue
for law reform.6 to court, in that they must prove that they have been sufficiently
impacted by the law.
I have provided an example relevant to smoking in
outdoor dining areas and linked it to my chosen reason 6. D. Explanation: The ability to raise awareness about a common issue
for law reform.7 is a shared strength of the three means of influencing law reform.

Preparing for exams
I have used signposting in my response, such as Standard exam-style
‘One reason’ and ‘A second reason’.
7. [One way individuals can influence law reform is through a petition,
I have used connecting words, such as ‘For instance’ which is a formal document addressed to the government that
and ‘Consequently’. is signed by individuals who are demanding action or legislative
reform.1][Petitions are a free and convenient way to collate people’s
support for action and raise awareness for an issue.2]
I have identified and defined one way individuals can
13. [One way in which international pressures can act as a reason for influence law reform.1
law reform is through their ability to influence legislative changes to
ensure domestic laws reflect international standards.1][For example, I have provided information about my chosen way
the UN is an international organisation that monitors the compliance individuals can influence law reform.2
9B ANSWERS
of its Member States with international law, sometimes exerting

pressure on a country to compel it to implement domestic law reform
in order to comply with international treaties.2][For instance, the
pressure placed on Australia by the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment influenced
the Australian Government to initiate law reform in relation to ending
Australia’s offshore processing agreement with Papua New Guinea
in 2021. 3][The Australian Government was compelled to initiate this
ANSWERS 597
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8. [I agree with the statement to a moderate extent in that, whilst I have provided a second strength of demonstrations
the courts can be effective in influencing law reform, ultimately as a means of influencing law reform.3
it is extremely costly and time-consuming for an ordinary person
to bring a case before the courts.1] I have provided a topic sentence to introduce the main
idea of my paragraph.4
[The courts may be required to establish a new precedent when
a case is brought before them by an individual with standing.
I have provided one limitation of demonstrations
As a result, parliament may then codify the precedent set, thereby
as a means of influencing law reform.5
making common law into statutory law, demonstrating the ability
of individuals to influence reform through the courts.2][However, I have provided a second limitation of demonstrations
pursuing litigation is extremely expensive and time-consuming. as a means of influencing law reform.6
The average person will often become less willing and able to
pursue a case through the courts as a result.3][Overall, the courts I have provided a conclusion to my response that links
can be an effective way to influence law reform, however, to have back to the question.7
the resources to present a case before the courts in the first instance
is challenging.4] I have used paragraphs to organise my response.
I have provided an introduction to state the extent I have used signposting in my response, such as
to which I agree or disagree with the statement.1 ‘One strength’ and ‘A second strength’.
I have provided one strength of the use of the courts I have used connecting words, such as ‘However’
in influencing law reform.2 and ‘Additionally’.
I have provided one limitation of the use of the courts

11. A; D
in influencing law reform.3
12. [I agree with this statement to a limited extent. Whilst petitions
are a viable means by which individuals and groups can influence
law reform, demonstrations can also be successful in initiating
I have used connecting words, such as ‘As a result’ such reform.1]
and ‘However’. [Petitions can be a cost-effective and accessible means of
influencing law reform.2][They are a convenient way to collate
people’s support for an action without consuming their time,
Extended response and must be responded to in the Petition Report by the relevant
minister.3][Conversely, demonstrations are difficult to organise and
9. Strengths: I; III can be highly time-consuming for individuals to participate in.4]
Limitations: II; IV
[However, petitions contain many limitations.5][Petitions generally
10. [Demonstrations can be an effective means by which individuals need to address high stakes media topics, and even when one is, it is
and groups successfully influence law reform.1] difficult to attain enough signatures for parliament to consider the law
reform a petition is demanding. Indeed, Kevin Rudd’s media diversity
[One strength of demonstrations is that they have the ability to petition in 2020 acquired over 500,000 signatures to attain the
cause major disruptions, such as striking a workplace or blocking attention of parliament, and still, no law reform has been actioned by
roads, which can pressure the government to meet the demands of
parliament for greater media diversity.6][Alternatively, demonstrations
the demonstrators so the disruptions cease.2][A second strength of have the ability to cause disruption and can therefore be used as an
demonstrations is that, given the representative nature of parliament, effective tool by which people’s demands are swiftly met, even if an
parliamentarians should legislate according to the views of the
issue is not necessarily considered a high-stakes topic.7]
majority. Therefore, parliament should theoretically pay close
attention to demonstrations as constituents often use them [Overall, petitions are a viable means by which individuals and groups
to communicate their desires for change.3] can pursue law reform. However, so too are demonstrations. ] 8
[However, demonstrations may be limited if they are negatively I have provided an introduction to summarise the extent
depicted in the media or interest dissipates. ][The disruptions caused
4
by demonstrators often result in unfavourable media attention,
in turn creating negative associations with the issue and potentially I have provided a topic sentence to introduce the main
reducing community support.5][Additionally, demonstrations may be idea of my paragraph.2
unsuccessful in initiating legislative change and the momentum of the
movement may fade.6] I have provided a strength of petitions as a means
of influencing law reform.3
[Ultimately, individuals and groups can utilise demonstrations
as a successful means of influencing law reform, however, I have provided a contrasting limitation of
it is imperative that demonstrations are consistent and followed demonstrations as a means of influencing law reform.4
9B ANSWERS
up by additional action to maintain momentum.7]

I have provided an introduction to my response idea of my paragraph.5
to summarise my answer to the question.1
I have provided a limitation of petitions as a means
I have provided one strength of demonstrations of influencing law reform.6
598 ANSWERS
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5. A. Explanation: By engaging with constituents, MPs can initiate bills or

I have provided a contrasting strength of demonstrations
support law reform policies that those whom they have engaged with
online support, therefore better reflecting the views of the Australians
they were elected to represent.
back to the question.8 6. B. False. Explanation: Social media is able to influence parliament
as much as, or more than, traditional media through its broad reach.
I have referred to a relevant case example to support
my response.
Preparing for exams
Standard exam-style
I have used connecting words, such as ‘Conversely’
and ‘However’. 7. [One role of the media in relation to law reform is to inform and
educate people of current contentious political and legal issues,
as well as debates in the public realm.1][For example, this may
involve distributing information through traditional media, such
Linking to previous learning as newspapers, or social media, such as Instagram.2]
13. [One reason for law reform is shifts in community values.1]
I have provided one role of the media in law reform.1
[Laws must be altered to suit the changing values and beliefs
of the community so citizens are more likely to respect and obey
the law.2][For instance, following the ban of driverless cars in 2040, media in law reform.2
the Australian Government realised that such a law was not aligned
with the values of the community, and repealed it accordingly.3] I have used signposting in my response, such as ‘One role’.
[The means by which the Australian people were able to communicate
this shift in community values was through petitions. Without
petitions as a way to influence reform, Giuseppe and the community 8. [One way the media can influence law reform is by educating the
may not have had another convenient way to directly reach community about current legal and political issues, thus, prompting
parliament and voice their concerns.4] individuals and groups to influence law reform.1][For instance, the Four
Corners’ report on sports gambling prompted a shift in community
I have identified shifts in community values as a reason values, resulting in individuals and groups attempting to influence law
for law reform.1 reform through demonstrations and therefore, motivating parliament
to initiate law reform.2]
I have provided information about shifts in community
values as a reason for law reform.2 I have provided one way in which the media can influence
law reform.1
linked it to my chosen reason for law reform.3 I have provided an example relevant to the scenario
and linked it to my chosen way in which the media can
I have provided information about the relationship influence law reform.2
between my chosen reason for law reform and petitions.4
‘One reason’.
Extended response
9. A
9C T
he role of media 10. Strengths: I, II
in law reform
Limitations: III, IV
11. [Traditional media can have a large influence on law reform through
its accessibility to people of all ages and its ability to conduct
widespread investigations. However, the media can sensationalise
1. C. Explanation: The intended role of the media when it comes to law events which in turn may lead to misinformation 1]
reform is to inform the Australian public about the objective facts of
[One strength of traditional media in influencing law reform is that
political issues so that informed decisions can be made by citizens. traditional media, such as newspapers, remain accessible to people
of all generations in Australia, particularly to older generations who
2. Sometimes the law reform agenda is set in direct accordance with
may not use social media. This ensures all generations can stay
the interests of the media, given the for-profit nature of media
informed, empowering individuals to make informed voting decisions,
ownership in Australia.
9C ANSWERS
and ultimately influencing the success of policies in parliament.2]

3. A; D. Explanation: Oversimplifying issues may result in a biased and [Another strength of traditional media in influencing law reform is that
incomplete presentation of the facts. This may encourage people politicians may be fearful of negative representations in the media
to not seek to change the law as they see no issue with society’s and are therefore more likely to reform the law following in-depth
current state in certain aspects. investigations exposing poor practice in certain areas.3][For instance,
the ABC’s Four Corners’ investigation into the banking system titled
4. B. False. Explanation: Social and traditional media often present ‘Banking Bad’ prompted the 2019 royal commission into the banking
a skewed version of facts.
ANSWERS 599
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system and in turn, resulted in many amendments to the law, such as remain accessible to people of all generations in Australia,
the establishment of the ‘best interest duty’ for mortgage brokers.4] particularly to older generations who may not use social media.
This ensures all generations can stay informed, empowering
[One limitation of the traditional media and its role in law reform, individuals to make informed voting decisions, and ultimately
however, is that traditional media may sensationalise certain events
influencing the success of policies in parliament.4]
in order to gain attention, leading to the oversimplification of news
and events. This may result in the spread of misinformation as people [However, there are several limitations on the ability of the media
may not bother to read beyond the eye-catching title, believing they to act as an effective tool for influencing law reform. A limitation
gain the full story from this single title. This can reduce the level of of traditional media is that certain news outlets can have strong biases
meaningful influence that traditional media has on law reform.5] based on their ownership, causing them to disseminate misleading
[Moreover, traditional media is limited in its ability to fulfil its role in information to the public, hence limiting the ability of traditional media
law reform due to biases inherent in many media corporations. This to inform people of relevant causes. This means that law reform
may result in some media platforms using their influence to push may not occur because people are not aware of it being required.5]
against law reform, resulting in the media acting to prevent law reform [Another limitation of traditional media is that people cannot directly
instead of presenting a platform to encourage it.6][The law reform determine what news companies will publish, rather, it is determined
agenda may be set in direct accordance with the media’s interests, by journalists under the influence of the company owner, and hence
given the for-profit nature of media ownership in Australia. For popular issues will only sometimes be voiced, limiting the ability
example, News Corp controls over 100 physical and digital newspaper of people to utilise traditional media as an effective tool.6][A limitation
mastheads and overall 65% of the Australian newspaper market.7] of social media is that many complex events may be oversimplified
into an infographic or short-form video, with people not receiving
I have provided an introduction to my response.1 full information. This limits the ability of social media to act as
an effective tool for influencing law reform if people cannot fully
I have provided one strength of the role of traditional understand the nature of reforms on the agenda.7]
media in influencing a change in the law.2
[Overall, the media can be an effective tool for law reform, due to
I have provided a second strength of the role of traditional the accessibility of social media and traditional media for most
media in influencing a change in the law.3 demographics. However, strong biases within traditional media and
the inability of most regular, Australian citizens to influence what is
I have provided an example of traditional media influencing shown in traditional media limits its ability to be an effective tool for
legislative change and linked it to my chosen strengths.4 influencing law reform.8]
I have provided one limitation of the role of traditional I have provided an introduction to summarise the extent
media in influencing a change in the law.5 to which I agree or disagree with the statement, and why.1
I have provided a second limitation of the role of I have provided one way the media can be an effective
traditional media in influencing a change in the law.6 tool for influencing law reform.2
I have provided an example of traditional media influencing I have provided a second way the media can be an
legislative change and linked it to my chosen limitations.7 effective tool for influencing law reform.3
I have used paragraphs to organise my response. I have provided a third way the media can be an effective
tool for influencing law reform.4
‘One strength’ and ‘Another strength’. I have provided one way the media can be an ineffective
tool for influencing law reform.5
I have used connecting words, such as ‘For instance’
and ‘Moreover’. I have provided a second way the media can
be an ineffective tool for influencing law reform.6
12. Strengths: I; II I have provided a third way the media can

Limitations: III; IV be an ineffective tool for influencing law reform.7
13. [I agree to a moderate extent that the media is an effective tool I have provided a conclusion to my response that links
to influence law reform. Whilst the media can amplify the voices back to the question.8
of many and grant access to information regarding law reform, there
are several limitations in its ability to be utilised as a tool for igniting I have used paragraphs to organise my response.
law reform.1]
I have used signposting in my response, such as ‘Another
[There are numerous strengths in the ability of the media to act as an strength’ and ‘Another limitation’.
effective tool for influencing law reform. Social media campaigns can
help assure politicians that there is popular support for a particular I have used connecting words, such as ‘Furthermore’
law reform come election time, therefore increasing the likelihood and ‘However’.
of parliament adopting the reform being called for, proving an effective
9C ANSWERS
tool for amplifying voices.2][Another strength of social media is that

it enables communities and groups to gather support for an issue
themselves, rather than having to wait for the mainstream media Linking to previous learning
to capture the story. In this way, the media can act as an effective
14. The media: I; II
tool for communities to have their opinions heard regarding law
Demonstrations: III; IV
reform.3][Furthermore, traditional media, such as newspapers,
600 ANSWERS
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15. [I agree with this statement to a limited extent. Whilst the media
can greatly influence law reform in fulfilling its role and swaying
9D T
he Victorian Law
the influence of politicians and the public, demonstrations are
also an effective means of influencing law reform.1]
Reform Commission
[The media can be extremely effective at influencing law reform. Check your understanding
Corporations, such as News Corp, generally have the financial
resources and political connections to investigate and report on 1. A. True. Explanation: The VLRC is Victoria’s central law reform
contentious issues. This allows people to become informed about body that provides the Victorian Parliament with objective
political and legal issues that the news companies choose to report on recommendations for law reform in various areas of law.
so they can make decisions when it comes to influencing law reform,
such as when voting in elections and referendums.2][Social media 2. A; C; D; F. Explanation: The VLRC is solely a Victorian law reform
campaigns can help assure politicians that there is popular support body. Therefore, it does not engage with the prime minister’s
for a particular reform come election time, therefore increasing the requests for new federal laws or in law reform activity related
likelihood of parliament adopting the reform being called for.3] to New South Wales.
[However, the media is not the only way law reform is influenced 3. Part of the process: I; III; IV
by groups or individuals, as demonstrations can also influence Not part of the process: II; V
law reform.4][Demonstrations have the ability to cause disruption
and can be an effective tool for people to have their demands 4. A; C; E. Explanation: The VLRC inquiry was primarily concerned with
stalking in the context of non-family violence, as opposed to family
met swiftly, as exemplified by workers’ strikes.5][Moreover, given
violence, as there is less development in this area of law. Additionally,
the representative nature of parliament, parliamentarians should
consultations were conducted with 36 different parties. As of October
theoretically pay close attention to demonstrations, as a number
2023, none of the recommendations for legislative amendments have
of their constituents are clearly communicating their desire
been implemented by the Victorian Parliament.
for change.6]
[On balance, whilst the media can be effective in influencing law 5. B. Explanation: The terms of reference explicitly stated that the
reform, it is not the only way law reform is influenced by individuals inquiry was not tasked with investigating whether those who cannot
and groups.7] understand or communicate in English, irrespective of personal
disability, should be able to serve on juries.
6. True: I; III
False: II; IV
I have provided one way the media influences law reform.2
7. A. True. Explanation: The VLRC can investigate matters within
the scope of the terms of reference provided by the Victorian
I have provided a second way the media influences
Attorney-General, or minor community legal matters, which
law reform.3
concern both criminal and civil areas of law.
idea of my paragraph.4 Preparing for exams
I have provided one way demonstrations influence Standard exam-style
law reform.5
8. [The Victorian Law Reform Commission is Victoria’s main,
I have provided a second way demonstrations influence independent law reform body. It seeks to provide the Victorian
law reform.6 government with insight into areas of potential law reform.1]
[It investigates a wide range of matters, concerning both the
I have provided a conclusion to my response that links criminal and civil justice system, and is imperative to the
back to the question.7 development of a fair, just, and inclusive legal system for
all Victorians.2]
I have provided information about the VLRC.1

and ‘Moreover’.
I have provided further information about the VLRC.2
9. [One role the Victorian Law Reform Commission (VLRC) undertook

in its inquiry into Stalking was receiving and analysing the Victorian
Attorney-General’s term of reference.1][This means the VLRC
examined and reported back to the Victorian Attorney-General
with law reform recommendations on the specific matters outlined
in the terms of reference which, in this case, tasked the VLRC with
9D ANSWERS
considering a range of aspects concerning stalking, harassment, and

similar conduct in the Victorian community, specifically non-family
violence stalking.2][Existing legislation, barriers to reporting for
victims, and current sentencing practices and options for stalking
were outlined as avenues for inquiry in the terms of reference.3]
ANSWERS 601
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I have provided one role the VLRC undertook in its inquiry I have provided an introduction to state the extent
into Stalking.1 to which I agree or disagree with the statement.1
I have provided information about my chosen role the I have provided information about the VLCR’s ability
VLRC undertook in its inquiry into Stalking.2 to respond to the law reform needs of the community.2
I have provided examples from the inquiry into Stalking I have provided further information about the VLRC’s ability
and linked them to my chosen role.3 to respond to the law reform needs of the community.3
I have used signposting in my response, such as ‘One role’. I have provided information about limitations to the
VLRC’s ability to respond to the law reform needs
of the community.4
10. [One part of a Victorian Law Reform Commission (VLRC) inquiry is
the consultation and submissions process, which would be utilised by I have used connecting words, such as ‘However’
Matilda’s team to gather information about work from home practices and ‘Therefore’.
and community attitudes towards three-day weekends.1][During this
part of the process, the VLRC would publish a consultation paper,
engage with relevant bodies and experts, and invite community
Extended response
members to make submissions in digital, written, or oral formats about
work from home practices and opinions about a three-day weekend.2] 12. Strengths: I; II
[Another part of a VLRC inquiry is the final report, which includes
the commission’s findings and recommendations.3][Matilda’s
13. [The Victorian Law Reform Commission (VLRC) is able to influence
team at the VLRC would need to deliver relevant findings and
law reform to a great extent, although it may be limited in its ability
recommendations for potential law reform regarding changes
to do so due to time and resource constraints, as well as parliament’s
to workdays and work-from-home practices to the Victorian
willingness to enact law reform.1]
Attorney-General via the report, who will then table it in the
Victorian Parliament.4] [Firstly, the VLRC is able to initiate and investigate minor
community legal matters without a terms of reference from
I have provided one aspect of the process used by the the Victorian Attorney-General. The Inclusive Juries inquiry was
VLRC in its inquiries.1 a community law reform project that sought to investigate and
provide recommendations about the participation barriers to jury
I have provided information about my chosen aspect.2 duty faced by deaf, hard of hearing, blind, or low-vision people.2]
I have provided a second aspect of the process used

[Therefore, VLRC’s power to investigate matters without a terms
of reference from the Victorian Attorney-General enables it to
by the VLRC in its inquiries.3
provide recommendations for law reform in areas that are specific
to the needs of certain groups and communities.3]
I have provided information about my chosen aspect.4
[Additionally, the VLRC can provide objective and unbiased
I have used paragraphs to organise my response. recommendations for law reform. It is independent of political
parties and is able to review laws on controversial matters
I have linked my answer to the scenario where appropriate. objectively and deliver a set of recommendations for law reform
to parliament based on its in-depth research, expert opinions,
I have used signposting in my response, such as and the views of those who make submissions.4][For example, the
‘One part’ and ‘Another part’. inquiry into Inclusive Juries was informed by 29 consultations with
expert and informed parties, as well as 14 community submissions
that allowed the VLRC to gain insight into local experiences and
11. [I agree with this statement to a moderate extent, as the Victorian
Law Reform Commission (VLRC) can investigate matters without opinions. Hence, the recommendations provided to the VLRC
a terms of reference from the Victorian Attorney-General, however, are informed and based on a diverse range of perspectives and
experiences that can assist in making the justice system more
its ability to do so is limited by resource availability.1][The VLRC’s
main function is to respond to and investigate matters outlined in accessible and equitable.5]
a terms of reference provided by the Victorian Attorney-General. [However, projects can be very time consuming. Therefore, it may
Although, they also have the power, as outlined in s 5 of the take a while for the VLRC to influence substantial changes in the
Victorian Law Reform Commission Act 2000 (Vic), to investigate law on certain subject matter. The Inclusive Juries inquiry was
minor community legal issues.2][It may conduct research and established in 2020, yet was not tabled in the Victorian Parliament
investigations into matters concerning broader society, such as in its until 2023. Therefore, although the time spent consulting with
Inclusive Juries inquiry, and these inquiries are known as community relevant parties, engaging with the community, and reviewing
law reform projects.3][However, the VLRC’s ability to investigate submissions is necessary to provide informed recommendations,
minor legal issues without a terms of reference from the Victorian the VLRC may not be able to provide timely recommendations
Attorney-General is limited by resourcing and financial constraints. for law reform and the exclusionary nature of jury duty may be
9D ANSWERS
The VLRC is only able to conduct investigations that do not require prolonged until parliament enacts law reform.6][Moreover, though
a significant amount of resources. Therefore, it may not be able to the final report has been tabled, as of October 2023, no legislative
investigate all important issues in the community without a terms amendments have been implemented by the Victorian Parliament.
of reference from the Victorian Attorney-General.4] The process of changing the law within parliament is also time
consuming, further delaying law reform.7]
602 ANSWERS
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[Finally, the Victorian Parliament has no obligation to implement I have provided information about my chosen reason
the recommendations for law reform made by the VLRC. Although for law reform.2
a VLRC report must be tabled by the Victorian Attorney-General
in the Victorian Parliament, there is no obligation on parliament I have provided information about my chosen
to implement any of the recommendations. Hence, it may decide VLRC inquiry.3
to maintain the existing laws regarding jury service and not seek
to implement any of the 53 recommendations from the Inclusive I have provided information about my chosen reason
Juries inquiry that would make participation in civic life more for law reform and linked it to my chosen VLRC inquiry.4
accessible for those who are deaf, hard of hearing, blind, or have
low vision.8] I have used signposting in my response, such as
‘One reason’.
[In conclusion, whilst the VLRC has a great capacity to influence law
reform, and 75% of its overall recommendations since 2001 have I have used connecting words, such as ‘Therefore’.
been implemented in part or full, there remain limitations in its
ability to influence law reform in a timely and effective manner.9]
I have provided an introduction to my response.1 9E Royal Commissions

I have provided one way the VLRC is able to influence law
reform with reference to my chosen inquiry.2 Check your understanding
I have provided information about my chosen way.3 1. A. True. Explanation: Royal commissions can explore an area
of policy, encompassing social, legal, or political issues in their
I have provided a second way the VLRC is able to influence research. Alternatively, they can investigate particular incidents
law reform.4 or allegations, seeking to determine the truth behind them.
I have provided information about my chosen way and 2. B. Explanation: Royal commissions make recommendations for law
linked it to my chosen inquiry.5 reform but do not have the power to create or alter legislation based
on these recommendations.
I have provided one way the VLRC is limited in its ability to
influence law reform with reference to my chosen inquiry.6 3. B; C. Explanation: The government is not required to adopt
recommendations made by the Robodebt Royal Commission,
I have provided information about my chosen way.7 or any other royal commission. Additionally, all royal commissions,
including the Robodebt Commission, are independent of the
I have provided a second way the VLRC is limited in government, meaning the investigations are not influenced
its ability to influence law reform with reference to my by political perspectives or party biases.
chosen inquiry.8
4. A. Explanation: The Yoorrook Justice System focused on truth-telling
I have provided a conclusion to my response that links and, therefore, did not exercise coercive powers when preparing its
back to the question.9 June 2022 interim report.
I have used paragraphs to organise my response. 5. Strengths: II; IV

Limitations: I; III
6. A. True. Explanation: The power to establish a royal commission
and ‘Finally’.
at the Commonwealth level is provided under the Royal Commissions
I have used connecting words, such as ‘Additionally’ Act 1902 (Cth). Alternatively, in Victoria, the power to establish
and ‘However’. a royal commission is provided under the Inquiries Act 2014 (Vic).
Preparing for exams

Linking to previous learning Standard exam-style
14. [One reason for law reform is the need for the protection of society,
which is emphasised by the Victorian Law Reform Commission’s
7. [One strength of royal commissions is that they are able to
comprehensively investigate a particular incident, area of policy, or
(VLRC) inquiry into Stalking.1][Sources of harm can develop and social, legal, or political issue in their research. Therefore, they can
change over time, which means laws must be established to protect provide insightful recommendations for law reform that accurately
citizens, especially if existing laws do not adequately protect
and adequately addresses the issue at hand.1][This is because royal
particular groups.2][In its inquiry into Stalking, the VLRC sought to commissions can seek submissions from the community, hold public
research, investigate, and provide recommendations into stalking, hearings, and exercise coercive powers, such as through compelling
specifically in non-family violence circumstances as it highlighted
witnesses to give evidence under oath.2][For example, the Yoorrook
that less development had occurred in this area of law, compared to
Justice Commission, through its truth-telling process, was able
9E ANSWERS
stalking in family violence situations.3][Therefore, the VLRC Stalking to gain insight into the frustration felt by Victoria’s First Peoples,
inquiry sought to provide recommendations for law reform that and their cynicism towards the historical attempts of previous
promote the protection of stalking victims and ensure laws remain governments to rectify injustices faced by Aboriginal and Torres
relevant to stalking in the 21st century.4] Strait Islander peoples.3]
I have identified one reason for law reform and linked

it to one VLRC inquiry.1
ANSWERS 603
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insight into the implementation and operation of the Robodebt

I have provided one strength of royal commissions
Scheme, enabling it to provide 57 recommendations aiming
to prevent future failures in government administration.3]
I have provided information about my chosen strength.2 [However, one limitation of royal commissions is that the government
is not obliged to follow the suggested recommendations, meaning
I have provided an example of one recent royal commission the inquiry could be considered a waste of time and money.4]
and linked it to my chosen strength.3
[Consequently, the Commonwealth Parliament is under no obligation
to adopt the 57 recommendations for law reform made by the
Robodebt Royal Commission.5][As the Commission was provided
‘One strength’.
with a budget of $30 million, and took approximately a year to
conduct and produce its final report, this could be viewed as a waste
8. [A royal commission is the highest form of inquiry, which investigates of time and money if the government does not enact law reform
a particular issue through consultation with experts and the on a significant proportion of recommendations.6]
community, then develops a final report of recommendations for law
reform which is tabled in parliament.1][One role of royal commissions I have provided one strength of a royal commission
is to seek submissions from the community. For example, during its in influencing a change in the law.1
investigation, the commission could seek submissions from members
of the community who have been impacted by the high costs and long I have provided an example of one recent royal
commission.2
delays involved in the Victorian court system.2][Moreover, another role
of royal commissions is to engage in coercive powers of investigation.
I have provided information about how my chosen
For example, the commission could compel Victorian judicial officers
royal commission may influence a change in the law.3
to provide evidence under oath in regard to the high costs and long
delays in hearing cases in Victorian courts.3][Therefore, a royal I have provided one limitation of a royal commission
commission would likely influence law reform to address high costs in influencing a change in the law.4
and long court delays involved in the Victorian judicial system, as the
recommendations for law reform are more likely to reflect community I have provided an example of one recent royal
views and attitudes, possibly indicating to members of parliament commission.5
the desires of the public. Consequently, the reform would have an
increased likelihood of being initiated as members of parliament I have provided information about how my chosen royal
usually pass laws they believe will be popular in order to maintain commission may not influence a change in the law.6
public support and increase their chances of re-election.4]
I have defined the term ‘royal commission’.1
I have provided examples from the scenario and linked ‘One strength’ and ‘one limitation’.
them to one role of a royal commission.2
I have used connecting words, such as ‘As a result’
I have provided examples from the scenario and linked and ‘However’.
them to a second role of a royal commission.3
Limitations: II
them to how a royal commission could influence
law reform.4
12. [Royal commissions can be effective in influencing a change in the
law through their ability to gain valuable insights into matters of
public importance, once established by the government. However,
there are limitations in their investigative powers.1]
I have used connecting words, such as ‘Moreover’ [One strength of royal commissions is that, because they are
and ‘Therefore’. established by the government, members of parliament may
be more likely to act on and implement law reform based on the
findings of the commission.2][For example, the Yoorrook Justice
Extended response Commission was established by the Victorian Government and,
therefore, members of the Victorian Parliament may be more likely
9. Strengths: I; III; IV to adopt the recommendations of the Commission and implement
Limitations: II; V law reform.3][Furthermore, another strength of royal commissions
is that they are able to comprehensively investigate a particular
10. [One strength of royal commissions is that they have coercive incident, area of policy, or social, legal, or political issue in their
powers of investigation, such as being able to compel witnesses research. Therefore, they can provide insightful recommendations
to give evidence under oath, that ensures the whole truth emerges. for law reform that accurately and adequately address the issues
Consequently, this enables the issue to be better understood by
9E ANSWERS
at hand.4][For example, the Yoorrook Justice Commission, through

parliament and facilitates effective law reform as more adequate
its truth-telling process, was able to gain insight into the frustration
measures can be recommended by the commission.1][This was felt by Victoria’s First Nations peoples, and cynicism towards
evident in the Robodebt Royal Commission, where coercive powers historical government attempts to rectify the issues Aboriginal and
were used to compel witnesses, such as senior government officials,
Torres Strait Islander peoples have experienced since colonisation.5]
to appear at public hearings and give evidence about the Robodebt
Scheme under oath.2][As a result, the Commission gained valuable
604 ANSWERS
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[However, one limitation of royal commissions is that the government cannot investigate issues without a terms of reference.5][Although,
is not obliged to follow the suggested recommendations, meaning the any reform projects initiated by the VLRC itself can only be on minor
inquiry could be considered a waste of time and money if members issues and are a small portion of the work the VLRC does, meaning
of parliament fail to pass the commission’s recommendations into fewer recommendations for law reform are made in these areas
legislation.6][Therefore, whilst the Yoorrook Justice Commission where minor issues of society exist.6]
gained valuable insights through its truth-telling process, parliament
[However, royal commissions may be more effective in certain
is under no obligation to act on these findings.7] circumstances. One strength of royal commissions is they have
[Overall, royal commissions may be influential in changing the coercive powers of investigation, such as being able to compel
law through their ability to comprehensively investigate public witnesses to give evidence under oath, which ensures the whole
matters, which took place in the preparation of the Yoorrook Justice truth emerges. Consequently, an issue can be better understood
Commission’s interim report. However, it is ultimately limited as by parliament, facilitating effective law reform as more accurate
parliament is under no obligation to make law reform based on and adequate recommendations can be made.7][In this way, royal
these recommendations.8] commissions may be more effective than the VLRC, as the VLRC
does not have coercive powers of investigation.8]
[Overall, whilst there are other bodies that may influence law
reform, such as royal commissions, the VLRC is effective through
I have provided one strength of royal commissions
its independence and wide investigative powers.9]
in influencing a change in the law.2
I have provided an example of one recent royal I have provided an introduction to summarise the extent
commission inquiry and linked it to my chosen strength.3 to which I agree or disagree with the statement, and why.1
I have provided a second strength of royal commissions I have provided one strength of the VLRC in influencing
in influencing a change in the law.4 law reform.2
I have provided an example of one recent royal I have provided one limitation of royal commissions
commission inquiry and linked it to my chosen strength.5 in influencing law reform.3
I have provided one limitation of royal commissions I have provided a second strength of the VLRC in influencing
in influencing a change in the law.6 law reform.4
I have provided an example of one recent royal I have provided a second limitation of royal commissions
commission inquiry and linked it to my chosen limitation.7 in influencing law reform.5
I have provided a conclusion to my response that I have provided one limitation of the VLRC in influencing
summarises the discussion and links back to the question.8 law reform.6
I have used paragraphs to organise my response. I have provided one strength of royal commissions
I have provided a second limitation of the VLRC
‘One strength’ and ‘another strength’.
and ‘However’.

13. A; C ‘One strength’ and ‘another strength’.
14. [I agree to a moderate extent with the statement that there are I have used connecting words, such as ‘However’
other bodies, such as royal commissions, that are more effective and ‘Additionally’.
than the Victorian Law Reform Commission (VLRC) in influencing
law reform. However, the independence and extensive investigative
powers of the VLRC make it quite influential in law reform.1]
[One strength of the VLRC in influencing law reform is that it 9F Parliamentary committees
is independent of political parties and is able to review laws on
controversial matters objectively, delivering a set of recommendations Check your understanding
for law reform to parliament based on expert opinions and the
views of those in the public who make submissions.2][In this way, 1. A. True. Explanation: Parliamentary committees consult with the
9F ANSWERS
the VLRC may be more effective than royal commissions as, whilst community during their investigations to better understand the
royal commissions are independent, they are still dependent on the views of society on particular issues and laws.
government’s willingness to initiate an investigation about a particular
2. A standing committee is appointed for the life of parliament,
issue and ensure it scope is sufficiently wide.3][Additionally, another
whereas, a select committee is created for a specific purpose
strength of the VLRC is that it can investigate smaller issues, such
to investigate a policy issue.
as community law reform projects, without a terms of reference.4]
[In this way, the VLRC may be more effective, as royal commissions
ANSWERS 605
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3. B. Explanation: Parliamentary committees make recommendations

I have defined parliamentary committee.1
for law reform but do not have the power to create legislation based
on these recommendations.
I have provided one aspect of the role of a parliamentary
4. Strengths: I; IV committee.2
I have provided a second aspect of the role of a
5. A; C. Explanation: During its Inquiry into Anti-Vilification Protections, parliamentary committee.3
the parliamentary committee received submissions from members
of the community, which assisted in the recommendations for I have provided information about how a parliamentary
law reform. As a result, parliament supported the majority of the committee could influence law reform.4
committee’s recommendations.
6. B; C. Explanation: The Inquiry into Tackling Climate Change in appropriate.
Victorian Communities was limited to investigating the need for
law reform in Victoria and involved 15 days of public hearings. I have used signposting in my response, such as ‘One role’
7. B. False. Explanation: Joint committees are composed of members
from both the upper and lower Houses of Parliament. I have used connecting words, such as ‘Moreover’
Preparing for exams

Standard exam-style Extended response
8. [One strength of parliamentary committees in influencing law 10. Strengths: I; IV; V
reform is that the recommendations of law reform proposed by Limitations: II; III; VI
parliamentary committees are likely to reflect community attitudes
and, consequently, are more likely to be accepted.1][This is because 11. [One strength of parliamentary committees is that they can invite
parliamentary committees conduct research and consultation with the submissions from members of the community and listen to their
community, which can occur via written submissions from individuals, evidence at public hearings. This can ensure recommendations
experts, and interest groups, to ensure their recommendations reflect for law reform are reflective of community views and attitudes,
therefore increasing the likelihood of the recommendations being
society’s views.2][For example, in the Inquiry into Anti-Vilification
Protections by the Legislative Assembly Legal and Social Issues accepted by parliament.1][This was evident in the Inquiry into
Committee (LALSIC), there were 62 public submissions and seven Anti-Vilification Protections by the Legislative Assembly Legal and
days of public hearings from the community. This assisted the Social Issues Committee (LALSIC), which received 62 submissions
committee in creating 36 recommendations for law reform, from the community, including from the Jewish Community Council
of Victoria. The committee also conducted seven days of public
34 of which parliament supported.3]
hearings to listen to and cross-examine witnesses.2][As a result, the
I have provided one strength of parliamentary committees committee made 36 recommendations for law reform to minimise
in influencing law reform.1 Victorian citizens’ exposure to vilification based on the views of the
community, 34 of which parliament supported.3]
I have provided information about my chosen strength.2
[However, one limitation of parliamentary committees is that
parliament does not have to implement law reform based on their
I have provided an example of one recent parliamentary
recommendations.4][Whilst parliament supported 34 of the 36
committee inquiry and linked it to my chosen strength.3
recommendations made by the LALSIC, it was under no obligation
I have used signposting in my response, such as to implement law reform to address vilification and hate conduct
‘One strength’. in Victoria.5][Therefore, an inquiry conducted by a parliamentary
committee may not necessarily result in changes being made to the
law as they only have the power to recommend the law.6]
9. [A parliamentary committee is a group of members of parliament who
undertake work on behalf of the parliament to investigate policy and I have provided one strength of a parliamentary
government administration.1][One role of parliamentary committees committee in influencing a change in the law.1
is to invite submissions from the community. For example, during the
investigation into the need for greater protections for youth in relation I have provided an example of one recent parliamentary
to social media, parliamentary committees would hear submissions committee inquiry.2
from social media experts or concerned parents.2][Moreover, another
role of parliamentary committees is to conduct public hearings, I have provided information about my chosen
during which individuals and experts could provide evidence, and parliamentary committee inquiry and how it may have
influenced a change in the law.3
the committee would be able to cross-examine these witnesses.3]
[Therefore, parliamentary committees are likely to influence law I have provided one limitation of a parliamentary
9F ANSWERS
reform and support the introduction of greater protections for young

committee in influencing a change in the law.4
people in relation to social media, as the recommendations reflect
community views and attitudes. Consequently, the reform would have I have provided an example of one recent parliamentary
an increased likelihood of being accepted.4] committee inquiry.5
606 ANSWERS
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I have provided information about my chosen I have provided an example of one recent parliamentary
parliamentary committee inquiry and how it may committee inquiry and linked it to my second chosen
not have influenced a change in the law.6 strength.5
I have used paragraphs to organise my response. I have provided one limitation of a parliamentary
‘One strength’ and ‘one limitation’. I have provided an example of one recent parliamentary
committee inquiry and linked it to my chosen limitation.7
I have used connecting words, such as ‘As a result’
and ‘However’. I have provided a conclusion to my response that
summarises the discussion and links back to the question.8
12. Strengths: II; III I have used paragraphs to organise my response.

Limitations: I; IV
13. [Parliamentary committees can be effective in influencing a change in ‘One strength’ and ‘another strength’.
the law through their ability to undertake work on behalf of parliament
to investigate policy and government administration.However, there I have used connecting words, such as ‘Furthermore’
are limitations in their investigative powers.1] and ‘However’.
[One strength of parliamentary committees in influencing a change

in the law is that they can invite submissions from members of the
community and hear their evidence at hearings. This can ensure Linking to previous learning
recommendations for law reform are reflective of community views
and are consequently, more likely to be accepted by parliament.2] 14. A; C
[In the Legislative Assembly Environment Committee’s (LAEC) 15. [I agree to a limited extent with the statement that there are other
Inquiry into Tackling Climate Change in Victorian Communities, the
bodies, such as parliamentary committees, that are more effective
committee received 162 submissions from the community, such
than the Victorian Law Reform Commission (VLRC) in influencing
as Eastern Climate Action Melbourne. Therefore, this ensured its
law reform, as the independence and extensive investigative powers
recommendations for law reform, in relation to how the Victorian
of the VLRC make it quite influential on law reform.1]
Government can support urban, rural, and regional communities
in combating climate change, were reflective of community views.3] [One strength of the VLRC in influencing law reform is it is
[Furthermore, another strength of parliamentary committees is independent of political parties and is able to review laws on
that they can investigate specific matters of policy or government controversial matters objectively, delivering a set of recommendations
performance, and these investigations can be in-depth.4][During its for law reform to parliament based on expert opinion and the views
inquiry, the LAEC conducted an in-depth investigation as it received of those in the public who make submissions.2][In this way, the
162 submissions and conducted 15 days of public hearings. This VLRC may be more effective than parliamentary committees, as
contributed to the Victorian Government’s decision to support 67 parliamentary committees may not be independent and there could
of the 72 recommendations for law reform in its response in June be bias if the committee is composed predominantly of members of
2021, which it has started implementing.5] the same political party.3][Additionally, another strength of the VLRC
is it can investigate smaller issues, such as community law reform
[However, one limitation of parliamentary committees in influencing projects, without a terms of reference.4][In this way, the VLRC may
law reform is that parliament does not have to implement law reform
be more effective, as parliamentary committees cannot investigate
based on the recommendations made by the committee.6][Whilst
issues without a terms of reference.5][Although, any reform projects
parliament supported 67 of the 72 recommendations for law reform,
initiated by the VLRC itself can only be on minor issues and are a
the Victorian Government is under no obligation to implement law
small portion of the work the VLRC does, reducing the number of
reform based on these recommendations.7]
recommendations for law reform in these areas.6]
[Overall, parliamentary committees may be influential in changing [However, parliamentary committees may be more effective in
the law through their ability to consult with the community and
certain circumstances. One strength of parliamentary committees
receive expert opinions, which occurred in the LAEC’s Inquiry
is that they are created by, and operate under, the authority
into Tackling Climate Change. However, it is ultimately limited as
of parliament, meaning their recommendations may be more
parliament is under no obligation to make law reform based on
influential on law reform.7][In this way, parliamentary committees
these recommendations.8]
may be more effective than the VLRC, as the VLRC is independent
of the government and therefore, its recommendations may
not be as influential compared to parliamentary committees’
I have provided one strength of a parliamentary recommendations.8]
committee in influencing a change in the law.2 [Overall, whilst there are other bodies that may influence law
reform, such as parliamentary committees, the VLRC is effective
I have provided an example of one recent parliamentary
9F ANSWERS
through its independence and wide investigative powers.9]

committee inquiry and linked it to my first chosen strength.3
I have provided a second strength of a parliamentary

ANSWERS 607
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I have provided one strength of the VLRC in influencing

law reform.2
I have provided one limitation of parliamentary

committees in influencing law reform.3
I have provided a second strength of the VLRC in

influencing law reform.4
I have provided a second limitation of parliamentary

I have provided one limitation of the VLRC in influencing

law reform.6
I have provided one strength of parliamentary

I have provided a second limitation of the VLRC



my response.

‘One strength’ and ‘another strength’.

and ‘Although’.
9F ANSWERS
608 ANSWERS
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10A R
easons for 9. [One reason why the Constitution may need to be amended is
because of global events, such as wars, which may require the Federal
constitutional reform Government to seek additional powers or enact changes to ensure the
protection of citizens.1][During the Second World War, constitutional
reform regarding ‘Post-war Reconstruction and Democratic Rights’
Check your understanding was proposed with the intent of providing greater economic security
and social justice to Australian citizens during this time of global
1. B. False. Explanation: There are multiple reasons why the
unrest.2][The proposed constitutional alteration would provide the
Constitution may need to be altered, to push a political agenda
government with the power to legislate on 14 different matters,
is just one of these reasons.
including the rehabilitation of ex-servicemen, national health, and
2. B; C. Explanation: Changes in technology and improving the legal unemployment, all issues which had emerged or been exacerbated
system may both be reasons for law reform. However, changes by this global event of World War II.3]
to IVF technology do not influence the Constitution and the
establishment of the Koori Court was initiated through state I have identified one reason for constitutional reform.1
legislation, not by changes to the Constitution.
I have provided an example of my chosen reason for
3. A. Explanation: The 1973 referendums sought to give more power constitutional reform.2
to the Commonwealth Parliament to make laws on the subject
matter of prices and income. I have provided information about my
chosen reason.3
4. A. Explanation: The global event of the Cold War influenced
constitutional reform in 1951 as the Australian public broadly
feared the spread of communism. 10. [One reason why constitutional reform may occur is because of a
High Court case that declares an Act to be constitutionally invalid,
5. B. Explanation: The Pharmaceutical Benefits Case 1945 led emphasising a possible deficiency in the Australian Constitution.1]
to a referendum enshrining in the Constitution the power for [In 1945, the Pharmaceutical Benefits Case resulted in the High Court
the Commonwealth Parliament to legislate on social services. declaring the Pharmaceutical Benefits Act 1944 (Cth) was invalid
on the basis that the Commonwealth Parliament went beyond its
6. One possible reason, claimed by the ‘no’ campaign, for the 1999 law-making powers to create the Act. Therefore, the Constitution
Preamble referendum was for John Howard to push his own political was altered to add a paragraph which provided the Commonwealth
agenda and appear politically woke. On the other hand, one reason
Parliament with the power to legislate on social service matters.2]
for the 1999 Republic referendum was to better reflect societal values
as there had been shifts in Australian society, with many citizens [Another reason for constitutional reform is for a politician to push
no longer wanting to be tied to Australia’s colonialist past. their own political agenda and gain wider public support, changing
the Constitution through a referendum as a means to gain this
7. A. True. Explanation: A referendum is usually initiated due to a support.3][For example, in 1999, John Howard initiated the Preamble
number of reasons for constitutional reform in conjunction with referendum which many people regarded as a ‘politician’s preamble’.4]
each other influencing the referendum.
I have identified one reason why the Constitution may
need to change.1
Preparing for exams
Standard exam-style I have provided an example of my chosen reason.2
8. [One reason why the Constitution may need to change is to promote I have identified a second reason why the Constitution
reconciliation as certain First Nations’ rights may require greater may need to change.3
protection from the Constitution. Alternatively, the Constitution may
need to be altered so it does not exclude First Nations peoples from I have provided an example of my chosen reason.4
specific human rights.1][For example, in 1967, the referendum on
Aboriginal and Torres Strait Islander peoples altered the Constitution I have used paragraphs to organise my response.
to allow the Commonwealth Parliament to legislate on matters
concerning First Nations people, better allowing the protection of
reason’ and ‘Another reason’.
First Nations’ cultural rights.2][As Australian society has increasingly
valued reconciliation, other constitutional reform has been proposed,
such as the 2023 Voice to Parliament referendum.3] 11. [It could be argued one of the reasons that the 1967 referendum
regarding First Nations people was initiated was due to shifting
I have provided information about one reason for societal attitudes and an increasing value by society placed on
constitutional reform.1 combating discrimination.1][In 1967, a referendum was proposed
which would alter the Constitution in two ways. The first being that
I have provided an example of my chosen reason.2
it would provide the Commonwealth Parliament with the power to
create legislation regarding First Nations peoples, and the second
10A ANSWERS

being that it would ensure Aboriginal and Torres Strait Islanders
were counted in Australia’s population when a census occurred.2]
Note: This question could have been answered with a number of
different reasons.
[The referendum was the most successful in Australian history with
90.77% of the Australian population voting ‘yes’ to the question.3]
[This indicates that shifting societal attitudes regarding First Nations
peoples and the rights they should be allocated in Australian society
influenced the constitutional reform.4]
ANSWERS 609
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I have provided an introduction to answer the question.1 I have provided a third reason why I disagree that
progression in societal values is the only reason for
I have provided information to justify my answer.2 constitutional reform.6
I have provided an example from the referendum and I have provided a conclusion to my response that links
linked it to the theory.3 back to the question.7
I have provided information about my chosen referendum I have used paragraphs and topic sentences to organise
to justify my answer.4 my response.
I have referred to a past referendum to support I have used signposting in my response, such as
my response. ‘Another reason’.

Extended response
12. B. False. 15. A; B; D
13. A; C; D; E 16. [Three reasons for attempted constitutional reform associated with
the 1951 Communist Party referendum were global events, societal
14. [I agree with this statement to a minimal extent as although
attitudes, and a High Court decision.1]
progressions in societal values are a common reason for constitutional
reform, it is not ‘the only reason’ as there are several other influences [The first reason was due to the global political climate and events at
that may cause a constitutional amendment to be initiated.1] the time of this proposed constitutional reform.2][The global political
climate and the events of the Cold War led to concern that increasing
[The Constitution was established over a century ago, therefore, shifts support for communism in Australia would be a threat to Australia’s
in the core values held by society, such as the broad desire of current
security and defence.3]
society to better support First Nations peoples and condemn the
colonialist past of Australia, are a strong influence upon Constitutional [A second reason was the shifting attitudes of society in relation
reform. This can be perceived in the 1967 referendum.2] to communism.4][There were fears about the growing presence of
communism in Australia, with many people disagreeing with the
[However, there are several other reasons for constitutional reform, communist political ideology. Therefore, the referendum held in
such as to remove the extent of power held by the states, to respond
1951 sought to diminish this ideology in Australia by banning the
to High Court decisions, and to pursue political growth.3][In 1973, the
communist party entirely.5]
Prices and Income referendum aimed to provide the Commonwealth
with the power to legislate over income and prices to combat rampant [Furthermore, a third reason for the 1951 referendum was a High Court
inflation, therefore removing certain power of the states to control decision. ][The High Court declared Commonwealth legislation to ban
6
these aspects of the economy. Therefore, the removal of power from the Communist Party to be unconstitutional, so that the only way
states acted as an influence for reform.4] the Commonwealth could legislate on these matters would be to
amend the Constitution.7]
[High Court decisions may also lead to constitutional reform,
exemplified by the 1946 Social services referendum which was
initiated after the High Court’s decision in the Pharmaceutical I have provided an introduction to my response to
summarise my answer to the question.1
Benefits Case.5]
[Another reason for constitutional reform is a government’s desire I have identified one reason for the 1951 referendum.2
to pursue a political agenda, as initiating constitutional change
successfully can increase the political party’s approval as they may I have provided an example from the scenario and linked
be perceived as progressing Australia forward.6] it to my first chosen reason.3
[Ultimately, there are many reasons for constitutional reform that I have identified a second reason for the 1951 referendum.4
may all act in conjunction with one another. ] 7

I have provided an introduction to summarise the extent it to my second identified reason.5
I have identified a third reason for the 1951 referendum.6
I have provided one reason why I agree that progression in
societal values is the only reason for constitutional reform.2 I have provided an example from the scenario and linked
it to my third chosen reason.7
idea of the paragraph.3 I have used signposting in my response, such as ‘The first
reason’, ‘A second reason’, and ‘a third reason’
I have provided one reason why I disagree that
10A ANSWERS
progression in societal values is the only reason I have referred to past referendums to support my response.
for constitutional reform.4
I have provided a second reason why I disagree that

progression in societal values is the only reason for
constitutional reform.5
610 ANSWERS
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6. B. False. Explanation: Unlike regular legislation that can be changed

by parliament passing a bill and this bill gaining royal assent,
17. a. [ Express rights are the five human rights that are explicitly stated the Constitution can only be changed when the double majority
requirement is met in a referendum, which first requires an absolute
and entrenched in the Australian Constitution.1][Freedom of
majority in parliament to approve the constitution alteration bill to
religion is one of the express rights set out under s 116 of the
amend the Constitution.
Constitution which aims to ensure the Commonwealth cannot
pass laws that are designed to restrict the free practice of religion
or impose a religion on any individuals.2][The 1988 referendum Preparing for exams
aimed to extend the freedom of religion express right by altering
s 116 of the Australian Constitution.3] Standard exam-style
I have defined the term ‘express rights’.1

7. [The first role of the Houses of Parliament regarding altering the
Constitution is for one of the members to initiate the change
by introducing a constitution alteration bill into either one of
I have provided information about
express rights.2 the Houses of Parliament.1][The second role of the Houses of
Parliament is to debate the proposed change, as they would for
I have referred to the 1988 referendum to support any other legislation, and vote on whether to approve the alteration
my response.3 of not. An absolute majority of members approving the bill in both
Houses of Parliament is typically required unless an exception
is made by the Governor-General requiring the change to only
b. [One reason why constitutional reform was proposed in the be approved by an absolute majority in one of the houses.2]
case of the 1988 referendum was to ensure the better protection
of rights.1][Bob Hawke, prime minister at the time, proposed to I have provided one aspect of the role of the Houses
alter the Constitution with the intent to extend the express right of Parliament in constitutional reform.1
to freedom of religion so to better protect the religious rights
of Australians.2] I have provided a second aspect of the role of the Houses
of Parliament in constitutional reform.2
I have provided one reason for the 1988 proposed
constitutional reform.1 I have used signposting in my response, such as
‘The first role’ and ‘The second role’.
I have provided information about my
chosen reason.2
8. [The double majority requirement, established under s 128 of
I have linked my answer to the scenario the Australian Constitution, must be met for the Commonwealth
where appropriate. Constitution to be altered. The requirement for a double majority
means that the majority of voters Australia-wide must vote ‘yes’
(more than 50% of the Australian population), including voters in the
territories, and the majority of voters in the majority of states must
10B Referendums vote ‘yes’ (at least 4/6 states).1][In the scenario, a majority of all
voters in Australia voted in favour of the proposed change, meeting
the national majority requirement.2][However, only 3/6 of the states,
Check your understanding Tasmania, Queensland, and South Australia, had majority of voters in
favour of the change, therefore, the approval from four or more of the
1. B. False. Explanation: In this scenario, only 3/6 of the states had
states did not occur and the referendum would be unsuccessful.3]
a majority of their population vote ‘yes’. The requirement is for 4/6
or more of the states to have a majority of their citizens voting yes.
I have defined the double majority requirement.1
Therefore, since this requirement was not met, the referendum
would fail.
2. A; B; C; E. Explanation: In order for the Constitution to be altered, them to the national majority being achieved.2
it must obtain approval from both Houses of Parliament, meet the
double majority requirement from the public, and gain royal assent
them to the state majority not being achieved.3
from the Governor-General.
3. A. Explanation: Section 128 of the Constitution establishes the steps I have used connecting words, such as ‘However’.
a constitution alteration bill must take in order for the constitutional
amendment to be approved.
Extended response
4. A; C. Explanation: Referendums are compulsory to vote in for anyone
registered on the electoral roll and they do not necessarily have to be 9. A; C
held at the same time as a federal election, therefore they can often
come at a significant cost. 10. [The double majority requirement was not met in the 1977
10B ANSWERS
Simultaneous elections referendum, causing it to fail.1][The

5. A. Explanation: The process of gaining the double majority
requirement for a double majority means that for a referendum
requirement for a referendum can be costly, discouraging federal
to succeed, the majority of voters Australia-wide must vote ‘yes’
leaders from initiating them due to the expense.
(more than 50% of the Australian population), including voters
in the territories, and the majority of voters in the majority
of states must vote ‘yes’ (at least 4/6 states).2]
ANSWERS 611
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[The national majority requirement was achieved in the 1977 I have identified one limitation of the process of altering
Simultaneous elections referendum as 62.22% of the Australian the Commonwealth Constitution.4
population voted ‘yes’ to the proposed change.3][However, the
majority of people in only 3/6 of the states voted in favour of the I have provided an example relevant to the scenario and
proposed change, meaning that the double majority requirement linked it to my chosen limitation.5
was not met.4][Western Australia, Tasmania, and Queensland all
had a majority of their population vote ‘no’ to the proposed change I have provided information about my chosen limitation.6
to the Constitution.5]
[As a result of the proposed constitutional change not passing
the state majority hurdle, the constitutional reform proposal to I have used signposting in my response, such as
introduce Senate elections at the same time as the elections for ‘One strength’ and ‘one limitation’.
the House of Representatives failed.6]
I have defined the double majority requirement.2

I have provided examples from the referendum and linked
13. a. [ This referendum would not be successful as the requirement for a
them to the double majority requirement.3
double majority has not been achieved.1][In the scenario, a national
I have provided examples from the referendum and linked majority of ‘yes’ votes has been achieved as 59% of Australian
them to the double majority requirement.4 voters have approved the proposed change to make Legal Studies
education a matter dealt with by the Commonwealth Parliament.2]
I have provided information about the double majority [However, the referendum would fail as only 3/6 of the states are
requirement.5 in support of the change, being Victoria, New South Wales, and
Western Australia. The remainder of the states had a majority of
I have provided a conclusion summarising the analysis their population vote ‘no’ to the proposed change, therefore the
and linking back to the referendum.6 Commonwealth Parliament will not gain the power to legislate on
Legal Studies education.3]
I have stated that the referendum would be
I have used connecting words, such as ‘However’ and
unsuccessful.1
‘As a result’.
11. Strengths: I; III; IV them to the national majority being achieved.2
Limitations: II; V
12. [One strength of the process of altering the Commonwealth them to the double majority not being achieved.3
Constitution is that the requirement of having a referendum to change
the Constitution ensures voters in Australia have the power to reject
b. [The division of powers refers to the constitutional division
changes made to the Constitution.1][In the 1999 Republic referendum, of law-making powers between the state parliaments and
only 45.13% of the Australian public voted ‘yes’ to proposed changes
Commonwealth.1][Currently, Legal Studies education is a
to the Constitition.2][This indicates that majority of the Australian residual power as states can legislate on any matters which the
public wanted to maintain Australia’s status as a monarchy as Commonwealth do not have the exclusive power to legislate on
opposed to change to a republic, and were able to have their say and since Legal Studies education is not an exclusive or concurrent
against the Constitution being changed. This safeguards against the power of the Commonwealth, it is therefore a residual power. This
Houses of Parliament being able to make drastic changes to Australian means law-making powers regarding Legal Studies education are
society without the public’s approval.3] not granted to the Commonwealth Parliament in the Australian
[However, one limitation of the requirements for the Australian Constitution and therefore belong to the state Parliaments.2][The
Constitution to be changed is the expense that accompanies Constitution Alteration (Legal Studies) Bill 2056 is attempting
referendums.4][In the 1999 Republic referendum, the Australian to change Legal Studies education from being a residual power
government spent $66,820,894 to send out the referendum to all to a concurrent power, meaning the Commonwealth Parliament
Australians on the electoral roll, prepare the yes/no voting pamphlets, would have the right to legislate on education as well as the states.
However, since the proposed referendum failed, education is still
and advertise the referendum.5][Considering the low success rate of
referendums, with only 8/45 of the referendum proposals that have a residual power and is thus exercised by the state parliaments.3]
been conducted in Australia’s history being successful, this is a high
price to pay for a referendum that is likely to fail when looking at I have defined the division of powers.1
historical patterns.6]
10B ANSWERS
linked it to the division of powers.2

I have identified one strength of the process of altering
the Commonwealth Constitution.1
I have provided information about the division
of powers.3
linked it to my chosen strength.2
I have provided information about my chosen strength.3
612 ANSWERS
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10C F
actors that affect the 10. [The success of the 1977 referendum regarding the retirement
of judges was influenced by the factor of bipartisan support,
success of referendums which refers to the agreement of the government of the day and the
opposition party on a particular issue.1][In 1977, a referendum proposal
asked the public whether the Constitution should be amended to
Check your understanding introduce a retirement age for judges in the Federal courts. This
referendum received a national majority with 80.10% of Australians
1. B. False. Explanation: Out of the 45 referendums that have taken
voting ‘yes’ to the proposed change.2][In the lead up to the question
place in Australian history, only eight of these have been successful.
being asked to the public, ‘a spirit of agreement’ was developed in that
2. B. False. Explanation: Bipartisan support does not guarantee both of the major parties broadly supported the ‘yes’ vote, leading
a referendum will be successful. For example, the 1967 Nexus voters from both the left and right sides of the political spectrum to
referendum was defeated despite both major parties supporting broadly support the proposed change.3]
a ‘yes’ vote.
I have provided one factor that may have affected the
3. A. Explanation: Bipartisan support refers to agreement by the two success of a successful referendum.1
major parties on a particular issue.
I have provided an example of a successful Australian
4. If the wording of the referendum question is too complex, or there referendum.2
are multiple questions within the one question, the referendum is
less likely to be successful. This was shown in the 1999 referendum I have provided examples of my chosen successful
relating to Australia becoming a republic. Australian referendum and linked them to the effect
of my chosen factor on the success of this referendum.3
5. A. Explanation: People with a conservative ideology are likely to
vote ‘no’ to referendums, not wanting significant changes in society
to occur. 11. [One factor that may negatively impact the success of a referendum
is a lack of support from state governments as this may cause the
6. A. Explanation: A factor influencing the failure of the 1973 Prices requirement for a double majority to not be achieved if approval for
and income referendum was that the prime minister who initiated the change from four out of the six states or more is not met.1][In
this change, Gough Whitlam, was disliked by certain members the 1977 Simultaneous elections referendum, the state governments
of the Australian public for his economic policies. of Tasmania, Queensland, and Western Australia all launched ‘no’
campaigns against the proposed constitutional reform, believing it
7. A; C. Explanation: Some state premiers were supportive of a ‘yes’
would minimise the power of smaller states. Therefore, this influenced
vote in the Voice to Parliament referendum. Additionally, voting in
the referendum’s failure as the double majority requirement was
a referendum is compulsory therefore voters could not choose to
unable to be met with only three Australian states having a majority
simply not vote in the Voice to Parliament referendum without facing
of their citizens vote in favour of the change.2]
punishment, even if the voter did not want to vote in the referendum.
[Another factor that may influence the success of a referendum
8. B. False. Explanation: Multiple factors are likely to contribute is negative views towards the prime minister, or the political party
to the success of a referendum in conjunction with each other. of the prime minister, proposing the constitutional reform as this
may cause voters to vote ‘no’ due to a lack of trust in the politician.3]
Preparing for exams [In 1973, Gough Whitlam proposed a referendum to give powers
to the Commonwealth to control prices and income. The referendum
Standard exam-style failed, partly due to many people perceiving Whitlam’s economic
policies unfavourably, believing him to lack economic sophistication.4]
9. [One factor that may influence the success of a referendum is
the complexity of the proposed amendment. During a referendum I have provided one factor that may cause a referendum
campaign, if a referendum proposal is particularly complex or not to not succeed.1
well-explained when it is proposed, misinformation may spread
to the Australian public about the proposed constitutional change, I have provided an example of a referendum proposal and
influencing voters to not support the change due to confusion linked it to my chosen factor.2
or misunderstandings.1][The 1999 Australian Constitutional
Referendum Survey found that 47.7% of respondents believed they I have provided a second factor that may cause referendum
needed more information about the issues of the 1999 referendum to not succeed.3
proposals, both of which failed. This indicates the effect that voter
confusion or misunderstandings can have on the success of a I have provided an example of a referendum proposal and
referendum, particularly in the 1999 Republic referendum.2] linked it to my chosen factor.4
I have provided one factor that may influence the I have used paragraphs to organise my response.
success of a referendum.1
I have provided an example from one Australian ‘One factor’ and ‘Another factor’.
10C ANSWERS
referendum and linked it to how my chosen factor

may influence the success of a referendum.2

‘One factor’.
ANSWERS 613
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12. [One factor that may have influenced the 1999 Republic referendum’s [Despite bipartisan support for referendums often increasing
failure is the complexity of the proposed referendum, as many voters the proportion of votes in favour of a change, a lack of trust for
may have wanted to support one aspect of the constitutional reform politicians has caused referendum proposals with bipartisan
but not the whole question.1][The 1999 Republic referendum was support to sometimes fail, even though both, major political parties
criticised for incorporating two questions in the one question; whether broadly support the proposed constitutional amendments.4]
Australia would become a republic, and the manner by which the [In the 1967 Nexus referendum regarding whether the number
president would be chosen if Australia did become a republic.2] of members in the House of Representatives should be increased,
[Therefore, the referendum was unsuccessful as members of the there was unanimous bipartisan support for a ‘yes’ vote. Despite
Australian public did not support the second aspect of the question, this, the referendum still failed, indicating that bipartisan support
wanting the future president to be chosen by the Australian public, is not a definitive factor that is able to guarantee a referendum
not by members of parliament.3] is successful.5][In addition, there has been a broad movement
away from supporting the two, major political parties in Australia,
[Another factor that may have influenced the failure of the 1999 with more Australians aligning with values of independent parties,
Republic referendum is conservatism, which is a political philosophy causing the factor of bipartisan support to likely have less of an impact
committed to traditional ideas and values, therefore opposing in modern society. In the 2022 federal elections, an increasing number
change and innovation to the current status quo.4][John Howard, of independent MP’s were voted into the Commonwealth Parliament,
the prime minister at the time of the referendum, was a champion indicating a transition away from party alignment and, therefore, the
of the conservative perspective as he considered the current system diminishing influence of bipartisan support.6]
of Australia secure and working effectively, therefore there was no
need to change it.5][The ‘no’ vote against the referendum indicated [Although bipartisan support can lead to a greater proportion of
this viewpoint aligned with the public, as many Australians evidently Australians voting ‘yes’ to a proposed constitutional reform, past
referendums that have had bipartisan support have failed. However,
wanted to stick with the status quo of Australia being a monarchy.6]
every successful referendum proposal in Australia’s history has
I have provided one factor that may have affected the received bipartisan support in the lead up to the national vote,
success of the 1999 Republic referendum.1 indicating this is an important factor for a referendum to succeed.7]
I have provided an example relevant to the 1999 Republic I have provided an introduction to summarise my answer
referendum and linked it to my chosen factor.2 to the question.1
I have provided information about the effect of my chosen I have provided one way my chosen factor positively
factor on the success of the 1999 Republic referendum.3 influences the success of a referendum.2
I have provided a second factor that may have affected I have provided an example of a referendum and linked
the success of the 1999 Republic referendum.4 it to my chosen factor.3
I have provided an example relevant to the 1999 Republic I have provided a topic sentence to introduce the main
referendum and linked it to my chosen factor.5 idea of the paragraph.4
I have provided information about the effect of my chosen I have provided one way my chosen factor negatively
factor on the success of the 1999 Republic referendum.6 influences the success of a referendum.5
I have used paragraphs to organise my response. I have provided an example of a referendum and linked
I have used signposting in my response, such as ‘One factor’
and ‘Another factor’. I have provided a conclusion to my response that links
I have used connecting words, such as ‘Despite’

Extended response and ‘Although’.
13. A; C; D
14. [Bipartisan support influences the success of a referendum to some Linking to previous learning
extent, however, due to a lack of trust for politicians and society
transitioning away from aligning themselves exclusively with one 15. a. [One factor that influenced the success of the 1967 referendum
political party, this factor may have a limited influence on the was bipartisan support, which refers to the agreement of the
outcome of a referendum.1] government of the day and the opposition party on a particular
issue.1][In the 1967 Aboriginal referendum, for example, there
[Bipartisan support refers to the agreement of the government of was broad bipartisan support for the change to occur, leading to
the day and the opposition party on a particular issue. When both
over 90% of the Australian population voting ‘yes’.2][Both the
10C ANSWERS
major parties advocate for Australians to vote ‘yes’ to a particular

Australian Labor Party and the coalition at the time urged the
referendum, it can show Australians that all sides of the political
Australian public to vote ‘yes’ to the changes, therefore members
spectrum are in favour of the change, increasing the likelihood
of the Australian public from both sides of the political spectrum
of voter support irrespective of their political affiliations.2]
were encouraged to support the constitutional reform.3]
[For example, in the 1967 referendum about First Nations people,
there was broad bipartisan support for the change, leading to over
90% of the Australian population voting ‘yes’.3]
614 ANSWERS
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I have provided one factor that may have affected the 10D The 1967 referendum
success of the 1967 referendum.1
I have provided an example of the referendum and Check your understanding

linked it to the theory.2
1. On 27 May 1967, 90.77% of Australian voters voted ‘yes’ to the
I have provided information about my chosen reason.3 First Nations referendum proposal.
2. B. False. Explanation: The 1967 referendum resulted in two changes

to the Australian Constitution. The first was the removal of s 127
‘One factor’.
which excluded Aboriginal peoples from being counted in the national
Census. The second change was the amendment to s 51(xxvi)
b. [The first reason why the constitutional reform about First Nations of the Constitution which prevented the Commonwealth Parliament
peoples occurred in 1967 was for greater rights’ protection.1][One from making laws concerning Aboriginal peoples.
of the changes that was proposed in 1967 was changing s 51 of the
3. C; D. Explanation: The 1967 referendum did not award Aboriginal
Constitution to allow the Commonwealth Parliament to legislate
and Torres Strait Islander peoples the right to vote. It was in
on matters impacting Aboriginal and Torres Strait Islander peoples.
1962 when the Commonwealth Parliament passed a law giving
This change was proposed in order to allow the Commonwealth
Aboriginal and Torres Strait Islander peoples the option to vote
to introduce legislation that could better protect the rights of First
in federal elections. Furthermore, the referendum did not give
Nations people.2][One of these introduced Acts was the Aboriginal
the Commonwealth Parliament exclusive power to make laws
and Torres Strait Islander Heritage Protection Act 1984 (Cth) which
concerning Aboriginal and Torres Strait Islander peoples. Rather,
enabled the Commonwealth to assist in protecting the cultural
the referendum established creating laws about First Nations
rights of First Nations people.3] peoples as being an area of concurrent law-making power.
[Another reason for the constitutional reform in 1967 was 4. B. False. Explanation: Harold Holt was the Prime Minister of
changing societal values with regard to the protection of First
Australia who introduced the 1967 referendum after speaking
Nations peoples and their treatment by Australian society
with FCAATSI delegates.
post-colonisation.4][By the 1960s, society had started to
condemn the discrimination First Nations people were facing, 5. A. Explanation: No official ‘no’ campaign was published for the 1967
indicated by the protests that were occurring at the time, such referendum. This was a unique feature of this referendum.
as the Freedom Rides.5][As a result, the constitutional reform
in 1967 responded by ensuring Aboriginal peoples could now 6. A; C; D. Explanation: The 1967 referendum, which changed s 51(xxvi)
be counted as part of the Australian population in a census. of the Constitution, did not result in the Commonwealth Parliament
This was influenced by the Australian public’s shift towards gaining the sole power to create legislation for Aboriginal and Torres
valuing the rights of First Nations people more during this time, Strait Islander peoples. Rather, the power to make laws on such
and wanting to create a more equal and less discriminatory subject matter is shared with the states.
Australian society.6]
7. Under s 109 of the Constitution, the Commonwealth Parliament’s
I have provided one reason for the 1967 legislation overrules state laws where the laws of the Commonwealth
constitutional reform.1 conflict with one of the states. Therefore, the 1967 referendum allowed
the Commonwealth Parliament to override state legislation which was
I have provided an example relevant to the 1967 discriminatory and conflicted with Commonwealth legislation.
referendum and linked it to my chosen reason.2
8. B. False. Explanation: The 1967 referendum did result in legislative
I have provided information about my chosen example. 3 changes, for example, the Racial Discrimination Act 1975 (Cth) was
passed after the referendum as the Commonwealth Parliament now
I have provided a second reason for the 1967 had the power to make laws relating to Aboriginal and Torres Strait
constitutional reform.4 Islander peoples.

Preparing for exams
I have provided an example relevant to the 1967 Standard exam-style
referendum and linked it to my chosen reason.6
9. [One reason why the 1967 referendum was significant is that it
I have used paragraphs to organise my response. allowed the Commonwealth Parliament to legislate Acts that uplifted
and protected First Nations rights.1][For example, the Aboriginal
and Torres Strait Islander Heritage Protection Act 1984 (Cth) enabled
‘The first reason’ and ‘Another reason’.
the Australian Government to protect cultural heritage sites if they
were under threat.2][Furthermore, another reason why the 1967
referendum was significant is that it allowed for greater developments
10D ANSWERS
in Indigenous affairs, such as politicians admitting to Australia’s

oppressive, colonialist past against Aboriginal and Torres Strait
Islander peoples.3][For example, in 1992, Paul Keating made his
‘Redfern speech’ in which he acknowledged the genocide of Aboriginal
and Torres Strait Islander peoples, the Stolen Generations, and the
ongoing oppression of First Nations peoples.4]
ANSWERS 615
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to better understand the key areas where reform was required for
I have provided one reason why the 1967 referendum
Aboriginal and Torres Strait Islander peoples.4][Thirdly, another
was significant.1
reason as to why the referendum was significant is that its
I have provided information about my chosen reason.2 unprecedented success, as well as the fact that a ‘no’ campaign did
not exist, indicated the widespread support among Australians for
I have provided a second reason why the 1967 referendum greater equality in society.5]
was significant.3 [However, the referendum’s significance was limited in some regards.
Firstly, in the short term, the 1967 referendum had little impact on
First Nations peoples according to Russell Taylor in a 2017 report
reflecting on the referendum.6][Additionally, the referendum was not
an absolute fix to the issues facing First Nations peoples in Australia.
For example, the reformed Constitution now makes no formal
I have used connecting words, such as ‘Furthermore’. reference to Aboriginal and Torres Strait Islander peoples which many
regard as invalidating the existence of Aboriginal and Torres Strait
Islander peoples and a refusal of Australians to recognise Australia’s
10. [One reason why the 1967 referendum was significant is it allowed colonialist past.7]
the Commonwealth Parliament to overrule discriminatory state
legislation. This is because the referendum changed the constitution
[Ultimately, the 1967 referendum was broadly significant, however,
it cannot be said that this singular referendum addressed all the
to amend s 51(xxvi), therefore allowing the Commonwealth Parliament
injustices of Australian society with respect to First Nations peoples.8]
to make laws, concurrently with state parliaments, concerning
Aboriginal and Torres Strait Islander peoples.1][The Commonwealth
I have provided an introduction to my response to
Parliament was able to overrule state laws relating to Aboriginal and
summarise my answer.1
Torres Strait Islander peoples as a result of s 109 of the Constitution.
Section 109 states that, when a conflict arises between state and I have provided one reason why the 1967 referendum
Commonwealth legislation, the state legislation is deemed inoperable was significant.2
to the extent it is inconsistent with the Commonwealth legislation,
allowing the Commonwealth legislation to prevail.2][For example, I have provided a second reason why the 1967 referendum
in Mabo v Queensland, the High Court held the Queensland Act was was significant.3
contradictory to the clauses contained in the Racial Discrimination Act
1975 (Cth). Therefore, since the Racial Discrimination Act 1975 (Cth) I have provided information about my chosen reason.4
is Commonwealth legislation, it prevailed over Queensland’s
state laws.3] I have provided a third reason why the 1967 referendum
was significant.5
I have provided one reason why the 1967 referendum
was significant in relation to the High Court decision I have provided one reason why the 1967 referendum was
in Mabo v Queensland (No 1) (1988).1 limited in its significance.6
I have provided information about my chosen reason.2 I have provided a second reason why the 1967 referendum
was limited in its significance.7
I have provided an example from the case and linked
it to my chosen reason.3 I have provided a conclusion to my response that links
‘One reason’. I have used paragraphs to organise my response.

and ‘Another reason’.
Extended response
11. Positives: I; II; IV and ‘Ultimately’.
Negatives: III; V
12. [The 1967 referendum was a significant moment in Australia’s

history for a number of reasons. It created tangible changes Linking to previous learning
to the rights of First Nations peoples whilst also being of symbolic
13. [One reason why the 1967 constitutional reform relating to First
significance to Aboriginal and Torres Strait Islander peoples.1]
Nations peoples was proposed is due to the shifting attitudes
[Firstly, the 1967 referendum was significant as it allowed the of Australian society.1][The views and values held by the majority
Commonwealth Parliament to legislate Acts that uplifted and of Australian society are constantly shifting. As colonised, white
protected First Nations rights, such as the Aboriginal and Torres Australian society increasingly began to perceive First Nations
Strait Islander Heritage Protection Act 1984 (Cth) which enabled the peoples as equals, the 1967 referendum was initiated to reflect
10D ANSWERS
Australian government to protect cultural heritage sites.2][Another this societal change in the Constitution.2]
reason why the referendum was significant is that it allowed more
beneficial and effective policies for First Nations peoples to be
created.3][Section 127 of the Constitution was removed by the
referendum, therefore allowing First Nations peoples to be counted
in the Census. This enabled more beneficial public policies to be
created, as information from the Census could be drawn upon
616 ANSWERS
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[Another reason why this constitutional reform occurred was for [Firstly, one way the Australian people were able to change the
rights’ protection, as the referendum allowed the Commonwealth Constitution is through petitions. ][In 1957, a petition created
2
Parliament to override discriminatory state laws that impeded by the Aboriginal-Australian Fellowship (AAF) was signed by over
Aboriginal and Torres Strait Islander rights, such as their property or 100,000 people and presented to the Commonwealth Parliament.
human rights.3][For example, a Queensland Act which abolished the This showed parliamentarians of the general public’s desire for the
Meriam people’s property rights to the Murray Islands under native Constitution to change, influencing discussions in parliament which
title, the Queensland Coast Islands Declaratory Act 1985 (Qld), was ultimately led to the referendum.3][However, as the petition was
in conflict to a Commonwealth Act, and therefore was determined introduced to parliament in 1957, yet the referendum did not take
invalid to the extent it was inconsistent with the Commonwealth place until 1967, this indicates a limit to the public’s ability to change
legislation, upholding rights’ protection for First Nations people.4] the Constitution in that this process is time-consuming.4][To hold
a referendum, the proposed change must be introduced, then
I have provided one reason for the 1967 constitutional passed through both Houses of Parliament, and then put to the
reform relating to First Nations peoples.1 people in a national vote. Therefore, regardless of how persuasive
petitions are, the Commonwealth Parliament does not always have
I have provided information about my chosen reason.2 the time to change the Constitution. Therefore, citizens are limited
in their capacity to influence constitutional reform.5]
I have provided a second reason for the 1967
constitutional reform relating to First Nations peoples.3 [Secondly, another way the Australian public can influence
constitutional reform is through demonstrations, such as the
I have provided information about my chosen reason.4 Freedom Rides in 1965 in the lead-up to the 1967 referendum.6]
[Demonstrations attract the attention of the Australian public, making
I have used signposting in my response, such as citizens aware of injustices that constitutional reform can address.
‘One reason’ and ‘Another reason’. For example, the Freedom Rides exposed to the Australian people the
segregated and poor living conditions Aboriginal peoples were being
subjected to in NSW towns. Therefore, this public pressure compels
14. [One factor that affected the success of the 1967 referendum
parliament to initiate a referendum to address the public outrage and
was the bipartisan support it had. There was an absence of an
official ‘no’ campaign published for the referendum and both the remain popular among voters.7][However, for a referendum to be
Prime Minister at the time, Harold Holt, as well as the opposition successful, a double majority must be achieved whereby a majority
leader, Gough Whitlam, supported the constitutional reform of Australian voters approve the change and 4/6 of the states have
a majority of their voters vote ‘yes’. Therefore, if minority groups
relating to First Nations peoples.1][By receiving bipartisan support,
are partaking in demonstrations that the rest of Australia does
this demonstrated to the Australian public that there was a
not care about, demonstrations will be unsuccessful in influencing
broad political consensus that the 1967 proposal would have
positive impacts on people of all demographics in the Australian constitutional reform.8][Here, the demonstrations, amongst other
campaigns, were successful since a majority of Australians supported
population.2][Additionally, another factor that helped in ensuring
the views of the Freedom Ride students as reflected in the high ‘yes’
the 1967 referendum was successful was the knowledge held by
vote to the referendum proposal.9]
voters.3][If there is more positive publicity about a referendum,
there is likely to be more information disseminated regarding the [Ultimately, the Australian public can influence constitutional
issue voters are deciding on. For example, the 1967 First Nations reform, and did so in the 1967 referendum, by gathering public
referendum had high degrees of publicity, making Australian citizens support for an issue that changing the constitution can address,
aware of the proposed changes and the benefits it could bring to such as the segregation being experienced by First Nations peoples.
society. The referendum ended up being the most successful in Although their ability to change the Constitution can be limited
Australia’s history, indicating that this publicity and the knowledge by the rigid requirements set by the Constitution, the ability
it allowed voters to gain improved the referendum’s success.4] to alter the Constitution was not limited here.10]
I have provided one factor that affected the success of the I have provided an introduction to my response.1
1967 First Nations referendum.1
I have provided one way the Australian people can change
I have provided information about my chosen factor.2 the Constitution.2
I have provided a second factor that affected the success I have provided an example from the 1967 referendum
of the 1967 First Nations referendum.3 and linked it to my chosen way the Australian people can
change the Constitution.3
I have provided information about my chosen factor.4
I have provided one way the Australian people are limited
I have used signposting in my response, such as in changing the Constitution.4
‘One factor’ and ‘another factor’.
I have provided an example from the 1967 referendum
I have used connecting words, such as ‘Additionally’. and linked it to my chosen way the Australian people are
limited in changing the Constitution.5
10D ANSWERS
15. Strengths: I; II I have provided a second way the Australian people can
Limitations: III; IV change the Constitution.6
16. [The Australian people were successful in changing the Constitution I have provided an example from the 1967 referendum
during the 1967 referendum about First Nations peoples as the and linked it to my chosen way the Australian people can
referendum succeeded with a 90.77% ‘yes’ vote. However, the change the Constitution.7
rigid nature of the Constitution made it a difficult process for the
Australian population to do so.1]
ANSWERS 617
Back to contents
I have provided a second way the Australian people are Preparing for exams
Standard exam-style
I have provided an example from the 1967 referendum
and linked it to my chosen way the Australian people are
9. [One possible future constitutional reform is changing s 44 of the
Australian Constitution to remove the eligibility requirement that
states a member of the Commonwealth Parliament must not have
I have provided a conclusion to my response that links dual citizenship.1][Considering Australia is a multicultural nation
back to the question.10 with a number of migrants possessing dual citizenship, people have
called for this change so that the Commonwealth Parliament can
I have used paragraphs to organise my response. be more reflective of the Australian people and their values.2]
I have used signposting in my response, such as ‘Firstly’ I have provided one possible future constitutional reform.1
and ‘Secondly’.
I have provided information about my chosen possible
I have used connecting words, such as ‘However’ future constitutional reform.2
and ‘Ultimately’.
‘One possible future constitutional reform’.
10E P
ossible future 10. [I do not agree with this statement as, although demonstrations can
constitutional reform help the Australian people influence constitutional change, this is
not the only means by which Australians can do so.1]
Check your understanding [Firstly, in relation to the 2023 Voice to Parliament referendum,
demonstrations were held across cities in Australia, both before
1. B. False. Explanation: Australians have continued to request the referendum proposal was passed through parliament and
the Commonwealth Parliament to hold a referendum to enable during the lead-up to the referendum. Therefore, demonstrations
constitutional reform about various constitutional issues, such as were potentially one means through which constitutional reform
reform to establish a First Nations Voice which took place in 2023. was initiated.2][However, there are various other means through
which the Australian people may influence law reform aside
2. B. Explanation: In 2017, the Uluru Statement from the Heart was from demonstrations. For example, petitions were also utilised
produced at the National First Nations Constitutional Convention to influence the proposed constitutional reform of implementing
in Uluru after the Referendum Council had collated Aboriginal the Voice.3][The Uluru Statement from the Heart was a petition
and Torres Strait Islander communities’ priorities regarding established by First Nations representatives across Australia that
constitutional recognition. urged the government to implement a Voice to Parliament and
a Makaratta Commission. Therefore, without this petition, the
3. B; D. Explanation: The Voice to Parliament, comprised only
Voice to Parliament may not have been established as an avenue
of Aboriginal and Torres Strait Islander representatives, would
for potential law reform. Hence, whilst demonstrations can
not have been a third chamber of parliament as it would have
be successful in influencing potential constitutional reform,
had no ability to vote on legislation, rather, it would have advised
as demonstrated by the Voice referendum, there are multiple
in regard to proposed legislation.
other ways that constitutional reform may be initiated
4. In 1999, a referendum was held asking Australian voters whether they by the Australian people.4]
agreed to becoming a republic. However, after this proposal failed,
calls for this referendum to happen again have occurred. On the other I have provided an introduction to state whether I agree
hand, for the first time in 2023, a referendum was put to voters asking or disagree with the statement.1
whether they supported Australia introducing a Voice to Parliament.
I have provided information about how demonstrations
5. A; C. Explanation: Becoming a republic may make Australia can influence constitutional reform and linked it to the
have a similar system to the United States’ two-party system Voice to Parliament referendum.2
of government and would alter the status quo by changing
Australia from a constitutional monarchy to a republic. I have provided information about one other way the
Australian people can influence and linked it to the Voice
6. B. False. Explanation: Polling has shown there is still a strong to Parliament referendum.3
unwillingness of the Australian public to agree to become a republic.
A 2021 poll from IPSOS revealed that 40% of Australians rejected I have provided further information about my chosen way
the idea of becoming a republic, whilst just 34% outrightly supported the Australian people influencing the Voice to Parliament
this change. referendum.4
7. B; D. Explanation: There have been calls to change the Constitution I have used paragraphs to organise my response.
10E ANSWERS
to remove the eligibility requirement that a member of the

Commonwealth Parliament cannot have dual citizenship, whilst I have used signposting in my response, such as ‘Firstly’
there have also been calls to extend the terms of members of the and ‘For example’.
House of Representatives from three to four years.
I have used connecting words, such as ‘Therefore’,
8. B. False. Explanation: After a constitution alteration bill is passed ‘However’, and ‘Hence’.
through the Houses of Parliament, it is ultimately then up to the
people to approve the change at a referendum.
618 ANSWERS
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11. [One strength of the Australian public in influencing constitutional [Firstly, the Australian people are able to change the Constitution
reform is that they have the power of their vote, and can therefore by pressuring governments to introduce and pass a constitution
pressure governments or politicians to pass constitution alteration bills alteration bill through parliament so that the public can decide on
through parliament in order to initiate a referendum.1][For example, whether the Constitution should be changed during a referendum.2]
members of the Australian public want to change the Constitution [For example, Anthony Albanese ran his 2022 federal election
to remove the part of s 44 of the Constitution that deems a person campaign on the promise he would try to implement a Voice
ineligible to be a member of the Commonwealth Parliament if that to Parliament, therefore, since the public indicated they wanted
person is a dual citizen. As a response to members of the Australian this by electing him as Prime Minister, he was compelled
public seeking this reform in recent decades, in 1998, a member to initiate constitutional reform in parliament.3]
of the Senate introduced the Constitution Alteration (Right to Stand
for Parliament-Qualification of Members and Candidates) Bill to try [Another way the Australian people are able to influence
and initiate constitutional change.2][Although this bill did not pass constitutional change is through petitions. ][For example, the
4
through parliament, the introduction of this bill to parliament shows Uluru Statement from the Heart was signed by a number of First
how politicians are willing to listen to voters and may initiate bills Nations peoples, indicating the desires of Aboriginal and Torres
Strait Islander communities to gain constitutional recognition. This
to maintain support and increase their chances of re-election.3]
petition then inspired the bill being introduced to parliament which
[However, one limitation of the Australian public in influencing was seeking to change the Constitution to add the Voice, therefore
constitutional reform is that they are unable to actually have their say beginning the process of constitutional reform.5]
on the matter by voting in a referendum unless a referendum is put to
them, which requires the majority of parliament to pass a constitution [However, the ability of the Australian people to change the
alteration bill.4][For example, although the proposed reform of altering Constitution is limited in a number of ways. ][Firstly, for a referendum
6
the eligibility requirements for parliamentarians had the support to take place and be successful, a lengthy and difficult process must
from a number of Australians, the bill seeking to change s 44 of the occur. Considering only eight out of 45 referendums in Australia’s
history have been successful, it is clear the double majority
Constitution was not passed through parliament.5][Therefore,
a referendum was never put to the Australian people asking whether requirement is difficult to achieve.7][Despite the advocacy by some
they agreed with this constitutional change, meaning the Australian Australians for a Voice to Parliament to be established, the double
public could not influence constitutional reform by approving it, and majority requirement was not achieved during the referendum
as no state had a majority ‘yes’ vote and the national majority
the constitutional reform could not occur.6]
was not achieved as a majority of Australians voted ‘no’ to the
I have provided one strength of the Australian people proposed change.8]
in influencing constitutional reform.1 [Secondly, a referendum allows all Australian voters to have their say
on whether they approve constitutional change. ][In the 2023 Voice
9
I have provided an example of one proposed
to Parliament referendum, this resulted in Australians not changing
constitutional reform relevant to my chosen strength.2
the Constitution since a majority rejected the change. Therefore, even
when there is a large group of people advocating for constitutional
I have linked my chosen proposed constitutional reform
change, their ability to change the Constitution is contingent on the
to my chosen strength.3
rest of the Australian public.10]
I have provided one limitation of the Australian people [Finally, there are certain factors that are likely to result in a failed
in influencing constitutional reform.4 referendum that are outside the control of the Australian voters
and are instead dependant on politician’s choices.11][For example,
I have provided an example of one proposed
in the lead-up to the Voice to Parliament referendum, there was a
constitutional reform relevant to my chosen weakness.5
lack of bipartisan support, a lack of voter knowledge, and a strong
‘no’ campaign. Hence, the failure of the Voice referendum can be
I have linked my chosen proposed constitutional reform
to my chosen weakness.6 attributed to multiple intersecting factors.12]
I have used paragraphs to organise my response. I have provided an introduction to my response.1
I have used signposting in my response, such as I have provided one way the Australian people can
‘One strength’ and ‘one limitation’. influence a change to the Constitution.2
I have used connecting words, such as ‘For example’ I have provided an example relevant to the 2023 Voice
and ‘However’. to Parliament referendum and linked it to my chosen way.3
I have provided a second way the Australian people can

influence a change to the Constitution.4
Extended response
I have provided an example relevant to the 2023 Voice
12. Strengths: I; II to Parliament referendum and linked it to my chosen way.5
Limitations: III; IV; V
10E ANSWERS
13. [The unsuccessful 2023 Voice to Parliament referendum idea of my paragraph.6

demonstrates how the Australian people can be limited in their
ability to change the Australian Constitution, particularly because I have provided one way the Australian people are limited
of the strict double majority requirements.1] in their ability to influence constitutional reform.7
ANSWERS 619
Back to contents
I have provided an example relevant to the 2023 Voice [Furthermore, for a referendum to take place and be successful,
to Parliament referendum and linked it to my chosen way.8 a lengthy and difficult process must occur. ][In 1999 when the
11
question of whether Australia should become a republic was first

I have provided a second way the Australian people are put to the people, the double majority requirement was not achieved
limited in their ability to influence constitutional reform.9 as the national ‘yes’ vote was below 50%. Therefore, constitutional
change could not occur despite some of the Australian public strongly
I have provided an example relevant to the 2023 Voice advocating for this change.12]
to Parliament referendum and linked it to my chosen way.10
I have provided a third way the Australian people are
limited in their ability to influence constitutional reform.11 I have provided one way the Australian people can
I have provided an example relevant to the 2023 Voice
to Parliament referendum and linked it to my chosen way.12 I have provided an example relevant to the 1967 referendum
about First Nations peoples and linked it to my chosen way.3
I have provided a second way the Australian people can
I have used signposting in my response, such as ‘Firstly’ influence a change to the Constitution.4
I have provided an example relevant to the 1967 referendum
I have used connecting words, such as ‘For example’ about First Nations peoples and linked it to my chosen way.5
and ‘However’.
I have provided a third way the Australian people can
Linking to previous learning I have provided an example relevant to the 1967 referendum
14. Strengths: I; II; IV about First Nations peoples and linked it to my chosen way.7
Limitations: III; V
15. [By comparing the successful 1967 referendum about First Nations idea of my paragraph.8
peoples with the unsuccessful proposed constitutional change for
I have provided one way the Australian people have
Australia to become a republic, limitations in the Australian public’s
limited influence over changing the Constitution.9
ability to influence constitutional change can be demonstrated.1]
[Firstly, the Australian people are able to change the Constitution by I have provided an example relevant to the republic
pressuring governments to introduce and pass a constitution alteration proposed constitutional reform and linked it to my
bill through parliament so that the public can decide on whether chosen way.10
the Constitution should be changed via referendum.2][For example,
prior to the 1967 referendum, there were a number of activist efforts, I have provided a second way the Australian people have
such as the Freedom Rides, which sought to compel parliament to limited influence over changing the Constitution.11
take the first steps in removing the discriminatory provisions of the
I have provided an example relevant to the republic
Constitution.3]
proposed constitutional reform and linked it to my
[Secondly, when factors all point towards the referendum being chosen way.12
successful, the Australian people have a greater likelihood of voting
‘yes’ to changes to the Constitution.4][For example, in the 1967 I have used paragraphs to organise my response.
referendum about First Nations peoples, many factors pointed
in favour of the yes vote succeeding from the outset as there was I have used signposting in my response, such as ‘Firstly’
no, published ‘no’ campaign and bipartisan support for a ‘yes’ vote and ‘Secondly’
to the proposal.5]
I have used connecting words, such as ‘For example’
[Thirdly, all eligible voters have to vote in a referendum, therefore, and ‘However’.
all of these individuals are able to have their say on whether the
Constitution should be changed.6][For example, in 1967, 90.77%
of Australian voters approved the constitutional change in relation to
Aboriginal and Torres Strait Islander peoples’ rights, demonstrating
how the Australian people can change the Constitution by exercising
their right to vote.7]
[However, considering the fact that many proposed reforms have not
yet been initiated despite the Australian people wanting to change
the Constitution, it is clear the Australian people’s ability to change
10E ANSWERS
the Constitution is limited.8][The Constitution can only be changed

by a referendum, which requires parliament to initiate and pass a
bill for the referendum to occur.9][Despite a number of Australians
wanting Australia to become a republic, no parliamentarian in recent
years has tried to introduce a constitution alteration bill on this
issue to parliament. Therefore, the ability of the people to change
the Constitution is limited as they cannot vote in a referendum if
parliament fails to initiate a referendum.10]
620 ANSWERS
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Legal case index
LEGAL CASE INDEX

A K
Attorney-General (Cth) v Kevin and Jennifer (2003) 172 FLR Kinglake Friends of Forest Inc. v VicForests (No 4) [2021] VSC
300 p. 356 70 p. 373
Attorney-General (Vic); Ex rel Dale v Commonwealth
(Pharmaceutical Benefits case) (1945) 71 CLR 237 p. 455 L
Australian Capital Television Pty Ltd and NSW v Commonwealth Lanciana v The King [2023] VSCA 78 p. 60
(1992) 177 CLR 106 p. 330 Lange v Australian Broadcasting Corporation (1997) 189 CLR
Australian Communist Party v Commonwealth (1951) 83 CLR 1 520 p. 330
p. 338 Latorre v R (2012) 226 Crim R 319 p. 115
Laz v The Queen [2022] VSCA 160 p. 132
B Lucy Orchard v Frayne Higgins [2020] TASADT 11 p. 247
Bava v R [2021] VSCA 34 p. 131
Brown v R (1986) 160 CLR 171 p. 345 M
Bucic v Arnej Pty Ltd [2019] VSC 330 p. 155 Mabo v Queensland (No. 2) (The Mabo Case) (1992) 175 CLR
p. 359, 373, 389
C McBain v State of Victoria (2000) 99 FCR 116 p. 287
Carr v State of Western Australia (2007) 232 CLR 138 p. 358 McKane v Conbar Transport Pty Ltd (2022) VSC 724 p. 186
CDC Clinics Pty Ltd v Daemolzekr [2022] VSCA 54 p. 142
Cole v Whitfield (1988) 165 CLR 360 p. 346 P
Commonwealth v Tasmania (1983) 158 CLR 1 p. 292 Packard (A Pseudonym) v R [2021] VSCA 56 p. 134
Palmer v State of Western Australia (2021) 272 CLR 505 p. 356
D
Deing v Tarola [1993] 2 VR 163 p. 355 R
Dietrich v R (1992) 67 ALJR 1 R v Brislan; Ex parte Williams (1935) 54 CLR 262 p. 295
Director of Public Prosecutions (DPP) v Browne (2023) 103 Rawle v Calvar [2022] WADC 27 p. 200
MVR 226 p. 124 Roach v Electoral Commissioner (2007) 233 CLR 162 p. 328
Donoghue v Stevenson [1932] AC 562 p. 370
DPP v Natale (Ruling) [2018] VSC 339 p. 102
S
School for Excellence Pty Ltd v Trendy Rhino Pty Ltd (2018) VSC
Duong v R [2017] VSCA 78 p. 76
514 p. 192
G State Government Insurance Commission v Trigwell [1979] HCA
40 p. 371, 388, 407
Gippsland Environment Group Inc v VicForests [2022] VSC 296
p. 255
T
Google Inc v Australian Competition and Consumer Commission
Taylor-Joycey v R [2021] NSWCCA 29
(ACCC) (2013) 249 CLR 435 p. 364
Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463 p.
V
348
Victoria Police v Lewis [2021] VMC 13 p. 40
I
W
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140
Wilson v Mackay Hospital and Health Service [2021] QSC 178
p. 343
p. 148
Imbree v McNeilly [2008] 236 CLR 510 p. 365
J
Jones v The Commonwealth (No 2) (1965) 112 CLR 206 p. 297
Junburnna Coal Mine NL v Victorian Coal Miners’ Association
(1908) 6 CLR 309 p. 292
LEGAL CASE INDEX 621

Back to contents
Glossary
GLOSSARY
A Civil law an area of law that defines the rights and

Abrogation the process of parliament overruling common law responsibilities of individuals, government entities, and
by creating a statute contrary to a decision of the courts. p. 389 organisations, and provides a legal framework for when these
parties interact with each other. p. VII, 140
Access the principle that all people should be able to engage
with the justice system and its processes on an informed basis. Class action a legal proceeding brought by one or numerous
p. III, 34, 157 plaintiffs acting for themselves as well as on behalf of a wider
group of people who have a claim with similar facts. p. 205
Accused the party who is charged with a criminal offence. p. 77
Codification the process of parliament confirming common
Administrative convenience the systematic benefit derived
law precedent by enacting legislation to give effect to the legal
from legal matters being distributed amongst the courts
principles. p. 388
according to their complexity and severity. p. 174
Community correction order (CCO) a non-custodial sanction
Aggravating factors aspects of an offence or the offender
that is served by the offender in the community with certain
that render the offending more serious and can lead to a more
conditions attached. p. 122
severe sentence. p. 130
Common law the body of law that is derived from judicial
Appeal a legal process that a dissatisfied party may pursue to
reasoning and decisions in past cases. p. V
have a court’s decision reviewed by a higher court. p. 60, 175
Community legal centres (CLCs) not-for-profit community
Arbitration a non-judicial dispute resolution method
organisations that provide free legal information, advice,
involving an independent third party, known as the arbitrator,
education, and casework services. p. 44
who listens to parties present evidence and makes a binding
decision. p. 166 Conciliation a non-judicial dispute resolution method
involving an independent third party, known as a conciliator,
Australian Constitution the founding document of Australia
who possesses specialist knowledge about the type of
that sets out the composition of the Australian Parliament, its
dispute in question and assists parties in a dispute reach a
function and layout, and its powers. p. IV, 452
resolution. p. 164
B Concurrent powers law-making powers granted to both the

Commonwealth and state parliaments. p. 281
Balance of probabilities the standard of proof in civil cases
Conservatism a political philosophy committed to
that requires the plaintiff to establish that their version of the
traditional ideas and values, therefore opposing change and
facts is more likely to be correct, and the defendant is most
innovation. p. 475
likely liable. p. 142
Constitutional monarchy a system of government in which
Barrister a self-employed lawyer who regularly appears in
the Crown is the Head of State, but elected representatives
court and is responsible for representing a party in a trial
have the power to create laws. p. IV
by making legal arguments, questioning witnesses, and
summarising the case to the judge and/or jury. p. 82, 197 Constitutional reform alterations made to the Australian
Constitution through the process of a successful
Beyond reasonable doubt the standard of proof applicable
referendum. p. 452
in criminal proceedings, which requires the prosecution to
prove that there is no reasonable doubt that the accused is Consumer Affairs Victoria (CAV) the Victorian civil
guilty of the crime(s) they have been charged with. p. 7 complaints body that provides information and helps resolve
disputes to create a fair and competitive marketplace for
Bicameral parliament a law-making body with two houses or
consumers and businesses. p. 211
chambers that must approve of new bills or amendments to
laws. p. 302 Costs the amount of money, including court fees and fees
for legal representation, that has to be paid to resolve a legal
Binding precedent legal reasoning of a higher court that must
dispute. p. 146, 377
be followed by all lower courts in the same court hierarchy
where the material facts are similar. p. 363 County Court of Victoria Victoria’s principal trial court that
hears and determines criminal and civil matters. p. 59
Bipartisan support the agreement of the government of the
day and the opposition party on a particular issue. p. 470 Court hierarchy the arrangement of courts in order of
superiority. p. 58, 173
Burden of proof the responsibility of a party to prove the
facts of a case. p. 6, 142 Crime an act or omission that violates an existing law, causes
harm to an individual, or society as a whole, and is punishable
C by law. p. 4
Case management powers the ability of a judge or magistrate Criminal law an area of law that aims to protect society
to make orders and provide directions to the parties about from harm by defining prohibited behaviours and outlining
the proceedings, with the aim of ensuring justice is delivered sanctions for those who participate in illegal conduct. p. VII, 4
efficiently. p. 183
622 GLOSSARY
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D Express rights the five human rights that are explicitly stated
and entrenched in the Australian Constitution. p. 342
Damages a type of remedy in which monetary compensation
is awarded to the plaintiff in a civil dispute to compensate
F
GLOSSARY
their loss caused by a civil breach. p. 246
Fairness the principle that all people can participate in the
Declaration a non-binding agreement between two or
justice system and its processes should be impartial and open.
more countries that establishes the aspirational rights and
p. II, 30, 154
obligations that parties to the agreement seek to enforce. p. 312
Fine a sanction that requires an offender to make a monetary
Defendant the party that is defending themself against a
payment as a penalty for a criminal offence. p. 120
claim by another person, the plaintiff, for an alleged breach of
civil law. p. 191
G
Democratic society an organised system of people living in
General deterrence a type of deterrence in which individuals
a community, in which the laws and processes that govern
other than the offender, such as the general public, are
people’s lives are created by elected representatives. p. 319
discouraged from committing offences because they wish to
Demonstration public protest to a law or action undertaken avoid receiving the same sanction as offenders. p. 114
by a large group of people. p. 404
Governor the representative of the monarch in each of the
Denunciation the act of publicly condemning an offender’s six Australian states. p. 275
criminal behaviour. p. 115
Governor-General the representative of the monarch in the
Deterrence the act of discouraging an offender, or other Commonwealth Parliament. p. 268
individuals, from reoffending or committing similar crimes,
Guilty plea a full admission of guilt by an accused person of
through the imposition of a criminal sanction. p. 114
an offence for which they have been charged. p. 132
Disapproving a precedent an act whereby a lower court
expresses its disapproval of a precedent established by a
H
higher court through its written judgment, but is still bound
High Court of Australia the most superior court in Australia
to follow it. p. 365
that hears matters of federal significance and appeals from
Distinguishing a precedent an act whereby a lower court federal, state, and territory courts. p. IV
avoids applying a precedent by demonstrating that the case
House of Representatives the lower house of the
before it has different material facts to the case in which the
Commonwealth Parliament, which is comprised of 151
precedent was established. p. 365
members of parliament representing the electorates across
Division of powers the constitutional division of law- Australia. p. 265
making powers between the Commonwealth and state
Human rights entitlements and liberties that exist for all
parliaments. p. 280
human beings, irrespective of any personal qualities and
Doctrine of precedent a rule in which judges must follow characteristics. p. VIII
the reasons for decisions given by superior courts in the
same court hierarchy when deciding a case before them with
I
similar facts. p. 362, 369
Imprisonment a sanction that removes an offender from the
Double majority a voting system that requires a majority of
community and places them in prison for a given period of
voters Australia-wide to vote ‘yes’, and a majority of voters in
time. p. 124
the majority of states to vote ‘yes’. p. 463
Indictable offence a criminal offence that is serious in nature
E and generally heard by a judge and jury in the County or
Supreme Court. p. 5
Enforcement issues a problem a plaintiff may need to
Indictable offences heard summarily a subset of indictable
consider regarding the capacity of a defendant to fulfil their
offences that can be heard in the Magistrates’ Court in a
legal obligation to compensate the plaintiff. p. 148
similar manner to a summary offence. p. 6
Equality the principle that all people engaging with the
Injunction a type of remedy requiring a party to either perform
justice system and its processes should be treated in the same
a specific action or prohibiting a party from taking a particular
way. If the same treatment creates disparity or disadvantage,
action. p. 253
adequate measures should be implemented to allow all
to engage with the justice system without disparity or International pressures the influence that other countries
disadvantage. p. III, 32, 156 and international organisations exert on parliaments
to ensure the laws created comply with international
Exclusive powers law-making powers granted only to the
standards. p. 310
Commonwealth Parliament by s 51 and s 52 of the Australian
Constitution. p. 280 International treaty an agreement between two or more
countries or international organisations, that creates
Executive power the power, vested in the King and exercised
international rights and obligations. p. 311
by the Governor-General, to maintain and administer the law
and the business of government. p. 335
GLOSSARY 623
Back to contents
J Overruling a precedent an act whereby a superior court

changes a previous decision made by a lower court, when
Judge an independent authority who presides over a trial,
ruling on a different case. p. 365
ensuring procedural fairness by overseeing all personnel and
GLOSSARY
evidence. p. 65, 180

P
Judicial activism a judicial approach where a judge takes
Parliamentary committee a group of members of parliament
into account numerous social and political factors when
who undertake work on behalf of parliament and investigate
interpreting the law and deciding cases. p. 372
the need for law reform. p. 441
Judicial conservatism a judicial approach where a judge
Parliamentary supremacy the legal concept that parliament
is reluctant to develop new law as they feel it is the role of
has the freedom to make, amend, or abolish laws, subject
parliament, as the elected representative body, to do so. p. 371
to limitations outlined in the Australian Constitution, and
Judicial determination a method of dispute resolution whereby is supreme over other arms of government, such as the
a judge or magistrate will make a legally binding decision after executive and the judiciary. p. 386
the parties present their cases at a trial or hearing. p. 229
Persuasive precedent legal reasoning that can act as a guide
Judicial power the power vested in courts and tribunals that for judges even though they are not bound to follow it. p. 363
enables them to enforce laws and resolve legal matters. p. 335
Petition a formal document addressed to the government
Jury a group of randomly selected people who are required to that is signed by individuals who are demanding action or
deliver a verdict in a trial based on the evidence presented to legislative reform. p. 403
them in court. p. 69, 185
Plaintiff the party that initiates a civil claim against another
person, the defendant, in court. p. 191
L
Plea negotiations discussions between the prosecution and
Law reform the amendment, progression, and/or modernisation
the accused, aimed at encouraging the accused to plead guilty
of law by aligning it with societal attitudes, removing defective
to a lesser charge, or fewer charges altogether in exchange for
elements, and improving its effectiveness. p. 396
the prosecution requesting a lesser sentence. p. 52
Legal practitioner a lawyer with an Australian legal practising
Precedent a legal principle or decision established by a
certificate. p. 82, 197
court in a previous case that is used as a guide or authority in
Legislative Assembly the lower house of the Victorian subsequent cases with similar facts or legal issues. p. VI
Parliament, which is comprised of 88 members of parliament
Presumption of innocence the right for all accused persons
representing the electoral districts across Victoria. p. 272
to be presumed innocent until it is proven otherwise beyond
Legislative Council the upper house of the Victorian reasonable doubt. p. 7
Parliament which is comprised of 40 members of parliament
Principles of justice underlying principles of the legal system,
who represent eight regions across Victoria. p. 274
and in VCE Legal Studies, these principles can be applied to
Legislative power the power vested in parliament that the Victorian justice system in order to assess whether justice
enables it to make laws. p. 335 is achieved. p. II
Limitation of actions a restriction on the time limit in which Prosecution the party that acts on behalf of the Commonwealth
a plaintiff must commence a civil action in court, after which or the state and brings a criminal case to court. p. 75
the plaintiff is unable to bring an action relating to the civil
Protection the act of ensuring offenders do not pose a
wrong against the defendant. p. 147
significant risk to the welfare and safety of their victims and
broader society. p. 115
M
Punishment the infliction of pain or loss to ensure an offender
Magistrate an independent authority who presides over
is adequately penalised and held accountable for their crimes
hearings in the Magistrates’ Court for less serious matters
and their impact on their victims and society as a whole. p. 113
such as summary offences, committal proceedings, and some
civil disputes. p. 65, 180
R
Magistrates’ Court of Victoria the first level of the Victorian
Referendum a compulsory national vote in which members
court system in which relatively minor matters are heard and
of the electoral roll vote ‘yes’ or ‘no’ to alter the Australian
determined by judicial officers, such as magistrates. p. 59
Constitution. p. 452, 462
Mediation a non-judicial dispute resolution method
Rehabilitation the act of restoring an offender to normal life
involving an independent third party, known as a mediator,
as a law-abiding member of the community after they have
who facilitates conversations between disputing groups. p. 161
engaged in criminal activity. p. 112
Mitigating factors aspects of an offence or the offender that
Remedy a court order that aims to enforce a right by
preventing a civil breach, or correct a civil breach and return
sentence. p. 131
the plaintiff to the position they were in prior to the breach by
the defendant. p. 246
O
624 GLOSSARY
Back to contents
Representative government a system in which members of Specialisation the process of a court developing expertise in
parliament are elected by the people of a community or nation a particular area of law as a result of hearing similar matters
to best represent the needs and views of those people. p. 327 regularly. p. 59
GLOSSARY
Residual powers law-making powers that are not granted to Specific deterrence a type of deterrence in which the
the Commonwealth Parliament in the Australian Constitution offender themselves is discouraged from reoffending and
and therefore belong to the state parliaments. p. 282 committing offences of a similar nature. p. 114
Reversing a precedent an act whereby a superior court Standard of proof the degree to which the facts of a case
changes a precedent set by a lower court in the hierarchy in must be proven in court. p. 7, 142
the same case on appeal. p. 364 Standing the requirement that, in order to bring a case to
Right to be informed about the likely release date of the court, an individual or group must be affected by, or have a
offender a right provided to victims of violent crimes whereby special interest in, the issues involved in the case. p. 380
they can apply to be registered on the Victims Register and will Statute law the body of law that comprises laws made by
be informed about the likely release date of an offender who has parliament, also known as legislation. p. V
been imprisoned. p. 23
Statutory interpretation a process whereby the courts
Right to be informed about the proceedings an entitlement give meaning to the words in legislation when applying the
whereby victims can be provided with information about the legislation to a case. p. VI, 354
case they are involved in, subject to certain limitations. p. 22
Summary offences a minor criminal offence usually heard in
Right to be tried without unreasonable delay an entitlement the Magistrates’ Court. p. 5
accused people possess to have their case heard in a timely
Supreme Court of Victoria the most superior court in Victoria
manner unless the court considers delays to the trial to be
that deals with the state’s most serious criminal and civil
‘reasonable’. p. 11
cases. p. 59
Right to give evidence using alternative arrangements an
entitlement for victims or witnesses of certain crimes in T
Victoria to give evidence in court in a non-standard way that
Traditional media mechanisms for spreading information
aims to be less traumatic for the victim. p. 20
that began use prior to the 21st century, such as newspapers,
Right to silence a common law right that allows a person to magazines, television, and radio. p. 411
remain silent when questioned or asked to supply information
by a person in authority. p. 12 U
Right to trial by jury a right to be tried by unbiased members United Nations an intergovernmental organisation that
of the community who have been randomly selected from the aims to promote better living standards and human rights,
electoral roll. p. 15 maintain international peace and security, and develop
Royal commission the highest form of inquiry, which friendly relations among nations. p. 313
investigates a particular issue through consultation with
experts and the community, then develops a final report V
of recommendations for law reform which is tabled in Victim impact statement (VIS) a written or verbal statement
parliament. p. 429 made to a court about the effect of an offence upon the
victim. p. 133
S Victoria Legal Aid (VLA) a government-funded agency that
Sanction a penalty imposed by a court, or an authorised body, provides free legal information, advice, and free or low-cost
on an offender when they plead guilty or are found guilty of a legal representation. p. 38
crime. p. 112
Victorian Civil and Administrative Tribunal (VCAT)
Senate the upper house of the Commonwealth Parliament, a dispute resolution body that has the power to hear
which is comprised of 76 senators who represent the six and determine certain types of civil and administrative
states and two territories across Australia. p. 266 disputes. p. 219
Separation of powers a principle established by the Victorian Law Reform Commission (VLRC) the central,
Australian Constitution that ensures the legislative, executive, independent law reform body in Victoria which investigates a
and judicial powers remain separate. p. 335 wide range of matters, concerning both the criminal and civil
Social media mechanisms of sharing information used in the justice system, and provides recommendations to the Victorian
21st century, involving digital applications and websites such as Parliament about areas of potential law reform. p. 418
Facebook, YouTube, Instagram, and X (formerly Twitter). p. 413 Voice to Parliament a proposed advisory body comprised
Solicitor a lawyer who advises clients about legal matters, of Aboriginal and Torres Strait Islander representatives
prepares legal documentation for trial, communicates with chosen by local, First Nations communities that would give
the other party’s legal representation, researches the relevant independent advice to the Commonwealth Parliament during
laws, and when required engages the services of a barrister the law-making process. p. 492
and briefs them to represent a client in court. p. 82, 197
GLOSSARY 625
Back to contents
Acknowledgements
Images
Figure 4/https://commons.wikimedia.org/wiki/File:Lance_Barnard_and_Gough_Whitlam.jpg/National Archives of Australia
p. 464, Figure 1/https://commons.wikimedia.org/wiki/File:Howard_John_BANNER.jpg/© Commonwealth of Australia 2011
p. 471, Figure 7/https://commons.wikimedia.org/wiki/File:Gough_Whitlam_-_ACF_-_crop.jpg/Australian Conservation
Foundation p. 476, Figure 4/https://twitter.com/YouthlawVic/photo/Youthlaw p. 47, Figure 6/https://www.theguardian.
com/law/2022/nov/06/saying-no-has-an-enormous-impact-overwhelmed-community-legal-centres-forced-to-turn-away-
clients/Ellen Smith p. 48, Figure 2/https://commons.wikimedia.org/wiki/File:Anthony_Albanese_portrait.jpg/Australian
Government p. 265, Figure 3/https://www.flickr.com/photos/takver/8689304682/John Englart p. 267, Figure 6/https://
commons.wikimedia.org/wiki/File:David_Hurley_official_photo.jpg/Office of the Governor-General of Australia p. 269,
Hook/https://commons.wikimedia.org/wiki/File:The_Great_Charter_called_in_Latyn_Magna_Carta_%281542%29.jpg/
Yale Law Library p. 11, Figure 1/https://commons.wikimedia.org/wiki/File:Victorian_Legislative_Assembly.png/Parliament of
Victoria p. 272, Figure 2/https://www.dannypearson.com.au/project/funding-for-major-expansion-of-ascot-vale-library//
Danny Pearson p. 274, Figure 4/https://www.governor.vic.gov.au/victorias-governor/about-governor/State of Victoria p. 276,
Figure 1/https://www.flickr.com/photos/comsec/4137034320/Commonwealth Secretariat p. 453, Figure 2/https://www.
flickr.com/photos/worldeconomicforum/5980755414 /World Economic Forum p. 453, Figure 3/https://commons.wikimedia.
org/wiki/File:Gough_Whitlam_and_Don_Dunstan.jpg/ITBF p. 454, Figure 4/https://picryl.com/amp/media/the-right-
honourable-john-curtin-prime-minister-of-australia-left-with-fellow-057adb /Australian War Memorial p. 454, Figure 5/
https://commons.wikimedia.org/wiki/File:To_Protect_Australia_Smash_Communism.jpg/State Library of WA p. 455, Figure
6/https://commons.wikimedia.org/wiki/File:Howard_John_BANNER.jpg/DTH89 p. 456, Figure 3/https://www.flickr.com/
photos/55497864@N00/6253647584/Brett Jordan p. 398, Hook/https://www.pexels.com/photo/people-protesting-for-
justice-4883038//Ariel Knox p. 403, Figure 2/https://www.flickr.com/photos/londonsummit/3408386517/London Summit p.
404, Figure 3/https://commons.wikimedia.org/wiki/File:Recreation_-_by_Scott_Sandars.jpg/Scott Sandars p. 405, Figure 4/
https://commons.wikimedia.org/wiki/File:School_Strike_4_Climate_protest_in_Sydney_%2846659682654%29.jpg/School
Strike p. 405, Figure 5/https://www.stockvault.net/photo/276758/black-and-white-sheeps-on-the-road/marru p. 407, Hook/
https://www.facebook.com/justicewagov/photos/a.125594005601866/176200377207895/?type=3/Department of Justice
WA p. 101, Figure 1/https://www.yardfurniture.com.au/2018-wrap-up//Peter McManus of Yard Furniture p. 105, Figure 7/
https://en.wikipedia.org/wiki/Jacqui_Lambie#/media/File:Lambie_2017_(cropped).png/MadDogSPR p. 306, Figure 2/https://
commons.wikimedia.org/wiki/File:JMP_6002_%2832472812447%29.jpg/julian meehan p. 320, Figure 3/https://www.
jadebenham.com.au/media-releases/top-tourism-town-awards//Jade Benham p. 321, Figure 2/https://www.yardfurniture.
com.au/2018-wrap-up//Peter McManus of Yard Furniture p. 387, Figure 1/https://picryl.com/media/freedom-riders-at-
bowraville-20715203332-26b960/SLNSW Flickr Stream p. 483, Figure 2/https://commons.wikimedia.org/wiki/File:Nelson_
Falls._Franklin-Gordon_Wild_Rivers_National_Park,_Tasmania.jpg/Andrea.Messina93 p. 293, Intro page/https://en.wikipedia.
org/wiki/Supreme_Court_of_Victoria#/media/File:Supreme_Court_of_Victoria_Front_Entrance.jpg/Nickbenanh p. 262-263
Some image sources in our book are under the following licences:
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• CC-BY-SA-3.0 https://creativecommons.org/licenses/by-sa/3.0/
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Additional images used under licence from Shutterstock.com.
Every effort has been made to trace the original source of copyright material in this book. The publisher will be pleased to hear
from copyright holders to rectify any errors or omissions.
626 ACKNOWLEDGEMENTS
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VCE LEGAL STUDIES

Kristen Cann, Anna Walsh, Callista Nguyen, Natalia Oberoi-Kearney,

PUBLISHED IN AUSTRALIA BY EDROLO

The moral rights of the authors have been asserted.

National Library of Australia Cataloguing-in-Publication data

TITLE: Edrolo VCE Legal Studies Units 3 & 4

REPRODUCTION AND COMMUNICATION FOR EDUCATIONAL PURPOSES

FOR DETAILS OF THE CAL LICENCE FOR EDUCATIONAL INSTITUTIONS CONTACT:

Copyright Agency Limited

LAYOUT DESIGN: Alexandra Ioan and Edrolo

Printed in Australia by Ligare Printing Pty Ltd

Unit 3 – Rights and justice 1

Chapter 1: Key concepts of the Victorian criminal justice system 3

1A Key principles of the criminal justice system 4

Chapter 2: The principles of justice during a criminal case 29

2A The principles of justice during a criminal case 30

Chapter 3: Sentencing 111

3A Purposes of sanctions 112

AOS 2 – The Victorian civil justice system 138

Chapter 4: Key concepts of the Victorian civil justice system 139

4A Key principles of the Victorian civil justice system 140

Chapter 5: The principles of justice during a civil dispute 153

5A The principles of justice during a civil dispute 154

6A Damages as a remedy 246

Unit 4 – The people, the law and reform 261

Chapter 7: Parliament and the Australian Constitution 263

7A The Commonwealth Parliament and the Crown in law-making 264

8A Statutory interpretation 354

AOS 2 – The people and reform 394

Chapter 9: Law reform 395

9A Reasons for law reform 396

Chapter 10: Constitutional reform 451

10A Reasons for constitutional reform 452

LEGAL CASE INDEX 621

FEATURES OF THIS BOOK

1A Key principles of the

(OPP) for prosecution

their legal vocabulary

and to understand the

context of the theory.

Indictable offences 3.1.1.3

students and teachers

to refer to the primary

Key knowledge units

break down the theory

into smaller chunks

DEEP DIVE REAL WORLD EXAMPLE

Explore boxes include

context for theory useful tips, lesson

links, and extension

and add to student

Legal cases have a

focus on the facts,

issues, decision and

Want to know more? provide opportunities for students to learn more

VI FEATURES OF THIS BOOK

Questions and Reviews Preparing for exams

test if students have Question 8

extent as Valerie would likely receive both general and specific

damages for her injury.1]