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6. 2009 HSC Notes from the Marking Centre – Legal Studies

2009 HSC Notes from the Marking Centre – Legal Studies

Contents

• Introduction
• Section I – Law and society
• Section II – Focus study – Crime
• Section III – Additional focus studies

Introduction

This document has been produced for the teachers and candidates of the Stage 6 course in Legal Studies. It contains comments on candidate responses to the 2009 Higher School Certificate examination, indicating the quality of the responses and highlighting the relative strengths and weaknesses.

This document should be read along with the relevant syllabus, the 2009 Higher School Certificate examination, the marking guidelines and other support documents which have been developed by the Board of Studies to assist in the teaching and learning of Legal Studies.

Teachers and students are advised that, in December 2008, the Board of Studies approved changes to the examination specifications and assessment requirements for a number of courses. These changes will be implemented for the 2010 HSC cohort. Information on a course-by-course basis is available on the Board’s website.

General comments

In preparing for the examination, candidates should:

• note that the themes in the syllabus on page 10 are very important to all parts of the course and to all parts of the examination
• have a sound understanding of the basic concepts and processes found in the course, as these are most likely to be referred to in questions. This includes an understanding of the terminology and specific meanings of the terms used in the syllabus
• note the rubric in Section III of the examination paper
• clearly identify the alternative (a) or (b) being answered, but it is not necessary to write out the question
• not write prepared answers. Invariably, such responses do not demonstrate analytical insight and do not address important aspects of the question. Candidates also need to directly address a quotation if required by the question.

Teachers and candidates should be aware that examiners may ask questions that address the syllabus outcomes in a manner that requires candidates to respond by integrating their knowledge, understanding and skills developed through studying the course.

Candidates need to be aware that the marks allocated to the question and the answer space (where this is provided on the examination paper) are a guide to the length of the required response. A longer response will not in itself lead to higher marks. Writing far beyond the indicated space may reduce the time available for answering other questions.

Candidates need to be familiar with the Board’s Glossary of Key Words which contains some terms commonly used in examination questions. However, candidates should also be aware that not all questions will start with or contain one of the key words from the glossary. Questions such as ‘how?’, ‘why?’ or ‘to what extent?’ may be asked or verbs may be used which are not included in the glossary, such as ‘design’, ‘translate’ or ‘list’.

Section I – Law and society

Part B – Question 16

General comments

Question 16 can address both Law and Justice and Human Rights. The number of parts and their mark value may vary from year to year. Candidates should have a clear understanding of syllabus terms, for example the distinction between ‘natural law’ and ‘natural justice’. Better responses showed a clear understanding of the topic areas and provided sound answers that were well structured.

Specific comments

1. Better responses demonstrated a clear understanding of the difference between natural law and natural justice, giving a range of definitions that stated their meanings and the essential qualities of the terms. The best responses clearly compared the two.

   Weaker responses showed a lack of understanding of these terms in their Legal Studies context. Some students confused the terms ‘natural law’ and ‘natural justice’ with the rule of law and were thus unable to access the top range of marks available for this question. Few candidates actually compared the two terms; most simply defined each term. Candidates should give an example to assist their comparison.

2. In better responses, candidates understood that the question required them to link the domestic and/or international measures to an identified contemporary human rights struggle. Some of the strongest responses discussed a historical struggle and linked it to one still being dealt with today, such as slavery or the rights of women.

   Less effective responses spent considerable time unnecessarily defining or making general statements about domestic or international law, or commenting on the effectiveness of the measures, which was not required.

   It is critical that candidates read the whole question carefully to understand what they are required to do.

Section II – Focus study – Crime

Better responses integrated legal terminology and increasingly used examples from legislation, case law and media articles.

Question 17

1. The majority of candidates were able to correctly identify two different defences to murder. Descriptions/explanations were not required. However, many responses provided unnecessary detail.

2. Most candidates were able to correctly outline the criminal process, with the better responses integrating rights of individuals at each step. Satisfactory responses listed the steps in the criminal process without providing any details. This was a six-mark question which asked for just an outline – it was unnecessary to write more than 15–20 lines.

3. Better responses concentrated on contemporary examples, cases and legislation. The benefits and disadvantages of discretion with reference to reporting crime and police and judicial discretion were evident in better responses. Weaker responses demonstrated limited understanding of discretion and many concentrated on interactions between individuals and the police.

4. Better responses made sound judgements based on criteria, explicit or implicit, from the syllabus, using relevant current examples, case law and legislation to examine the concept of commitment to criminal law from a range of perspectives. They integrated contemporary examples supported by links to legislation and cases. The issue of compliance and non-compliance was also examined in relation to current amendments to criminal laws.

   Weaker responses included very general examples with little reference to laws. Prepared answers invariably failed to address the specific requirements of the question.

Section III – Additional focus studies

Question 18 – Optional focus study 1 – Consumers

The better responses from both questions referred to a range of recent cases and reflected sound planning of their response rather than simply providing a description of various issues, examples, sources, acts and cases.

1. Better responses identified a range of methods available for consumer redress such as self help and awareness, relevant government agencies as well as the processes for redress such as mediation, conciliation and class actions. Better responses made informed judgements, based on clearly articulated criteria, on the effectiveness of the various methods of consumer redress. These responses integrated case law, media reports, legislation and treaties. Areas such as e-commerce were identified (where consumer redress was limited). Other avenues for redress such as the Ombudsman and government agencies were also used to illustrate the effectiveness of the law in this area. Better responses were presented in a sustained, logical and well-structured manner.

   Weaker responses simply listed various methods of consumer redress and were very descriptive.

2. Better responses sustained an awareness of both the ‘how’ and the ‘why’ components of the question. Many mid-range responses focused more consistently on ‘how’ the role of the consumer in the law has changed without any sustained and/or effective reference to ‘why’ the role has changed. Better responses analysed a wide range of elements that have defined the evolving relationships between the consumer and the law, for example the changing nature and implications of marketing, advertising, contractual mechanisms and credit. Statutes, case law and contemporary media reports were also integrated to support a logically presented response defining the transition of the role of consumers in the law from the era of caveat emptor to the era of globalisation and technological change. There were various avenues available to explore the issues raised by the question including the change in societal values and standards as catalysts for the changing role of consumers in the law and the role of the law in encouraging co-operation and resolving conflict in regard to consumer issues.

   Weaker responses were descriptive and ineffective in sustaining a response to the ‘why’ components of the question, tracing the history of the consumer in the law. Statutes, case law and contemporary media reports were infrequently used and when applied were listed rather than integrated into the response. Issues examined were often briefly outlined with little or no reference to stated or implied changes in the relationship between consumers and the law. Weaker responses focused primarily on the change from ‘caveat emptor’ and ‘laissez faire’ to the complexity of contemporary consumerism. Little or no support was provided to illustrate ‘how’ and ‘why’ this transition related to the consumer in the law.

Question 19 – Optional focus study 2 – Family

Many students were able to present quite detailed responses integrating recent legal reforms, statistics, quotations and media reports current to 2009.

Candidates must be sure to directly answer the question and draw their response from the syllabus concepts. Some candidates presented what seemed to be prepared responses that did not answer the question. Stronger responses referred directly to the question, quickly engaged with the complexities of family law and did not waste time with simplistic definitions.

1. Better responses clearly identified specific courts within the legal system including the Family Court, Federal Magistrates Court, State Courts and tribunals and, in relation to a range of issues, presented a critical evaluation of their effectiveness in protecting family members. Such responses referred to a broad range of issues drawn from the syllabus including marriage, alternative family relationships, parental responsibility, domestic violence, child abuse, and birth technology. Candidates referred to recent reforms including the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, the less adversarial court process within the Family Court, and the Domestic Violence Intervention Court Model. They provided a supported judgement and analysis of the effectiveness and ineffectiveness of the various courts to protect family members.

   Weaker responses failed to differentiate between the court system and the broader concept of the legal system. They made general reference to the ‘court system’ without reference to specific courts.

2. Better responses referred to a range of legal consequences and responsibilities of marriage and an alternative family relationship. Candidates not only referred to issues related to the specific syllabus dot point (mutual duties, maintenance, property rights, agency and wills), but drew from a range of syllabus concepts including the breakdown of relationships, domestic violence, child abuse, parental responsibility agreements and birth technology. These candidates clearly articulated similarities and differences where applicable and supported their arguments with relevant current examples and explicit analytical perspectives.

   Weaker responses referred to aspects of marriage and one alternative family arrangement with little or no reference to similarities and differences. Many did not refer to recent changes to legislation or examples, and presented out-dated and incorrect factual information, especially in relation to opposite sex and same sex de facto relationships.

Question 20 – Optional focus study 3 – Global environment

1. Stronger responses demonstrated extensive knowledge of the types of legal protection afforded to the global environment at both international and domestic levels as well as making a supported judgement as to the degree to which they are effective. Better responses referred to ‘soft law’ international approaches such as declarations and protocols and ‘hard law’ approaches such as conventions and treaties. Better responses also recognised the constitutional position within Australia as regards which level of government has power to effect environmental protection. The role of state sovereignty in both impeding and enabling the effective protection of the global environment was also explored. Legislation, treaties, international instruments, media reports and documents were integrated to support the assessments. Those responses were clearly linked to the question as well as being sustained, logical and well structured.

   Weaker responses made general statements about how the law seeks to protect the global environment with limited reference to legislation, treaties, international instruments, media reports and documents. Many weaker responses did not engage with the question and/or appeared to be prepared.

2. Better responses demonstrated extensive knowledge of the types of legal protection used in relation to the global environment at the international level including conventions, declarations and treaties, as well as domestic measures such as the external affairs power in s 51 of the Australian Constitution.

   Better responses provided detailed points for and/or against the nation state’s impact on the effectiveness of the law in protecting the global environment supported by the integration of relevant legislation, treaties, international instruments, media reports and documents. Those responses were clearly linked to the question as well as being sustained, logical and well structured.

   Weaker responses mentioned global environmental protection initiatives without discussing the impact state sovereignty has on their effectiveness.

Question 21 – Optional focus study 4 – Indigenous peoples

1. Better responses demonstrated an extensive knowledge of global pressures, including colonisation, loss of culture and the effect of transnational corporations. These responses referred to global pressures in the form of international organisations that have pushed for change. These responses explained how the law (both domestic and international) has responded to such global pressures with well-supported explanations, integrating case studies to support their arguments.

   Mid-range responses demonstrated sound knowledge of the global pressures and how the law responds to them, mainly through the use of cases studies. These answers relied on descriptions of UN bodies and the work they do.

   Weaker responses were often brief and relied heavily on the Australian position and Aboriginal Torres Strait Island peoples. These answers displayed limited understanding of the law and usually relied on Preliminary (Year 11) syllabus content. They lacked references to key laws and many did not identify global pressures. Candidates are encouraged not to attempt this option if they have not studied it as a focus study.

2. Better responses demonstrated extensive knowledge of issues that affect Indigenous Peoples and how the effectiveness of the law in responding to these issues is affected by the nation state. These responses expressly debated points for and/or against the proposition that nation states limit the achievement of justice in the context of the issues identified. A variety of case studies were integrated to reveal the extent of impact on achieving justice. These answers were logical, sustained and well structured.

   Mid-range answers relied on Indigenous Peoples case study descriptions to highlight points for and/or against the question of nation states limiting justice for Indigenous Peoples. These answers relied on statements of fact and lacked integration of these to support a discussion.

   Weaker responses generally had brief answers and used Aboriginal and Torres Strait Island peoples as the only example. Answers were historic, socioeconomic accounts rather than presenting a legal perspective. There was a heavy reliance on Preliminary course work in many responses.

Question 22 – Optional focus study 5 – Shelter

1. Better responses provided a thorough examination of the extent of protection provided, drawing heavily from the freehold and leasehold areas. Legislation, current cases and media reports were integrated to support candidates’ reasoning.

   Weaker responses did not distinguish between ‘securing shelter’ and ‘security of shelter’. These responses were often descriptive reviews of how shelter may be acquired. There was reference to, rather than use of, legislation, cases and media reports. Weaker responses often misconstrued the anti-gazumping legislation in NSW, indicating this area is not well understood.

2. Stronger responses appreciated the need to use criteria to determine how effective the law is in resolving disputes between those providing and those seeking shelter. These responses displayed insight into issues such as the use of a lease condition report to both resolve and prevent disputes. The integration of examples to support analysis was also strongly in evidence. Many responses used and/or referenced relevant current legislative provisions and media reports.

   Weaker responses focused on the source and nature of disputes over shelter and did not address the resolution of those disputes and/or assess the law’s effectiveness in resolving them. Often effectiveness, if dealt with at all, was dealt with in a cursory manner with paragraphs simply ending with ‘and this shows that the law is effective’, without demonstrating why that conclusion was reached.

Question 23 – Optional focus study 6 – Technological change

1. Better responses demonstrated a clear understanding of how effective international bodies and international tribunals are in responding to technological change. These responses clearly distinguished between tribunals and other international bodies and identified the types of technological change they were responding to.

   Weaker responses demonstrated a lack of knowledge and understanding of key syllabus terms such as ‘international bodies’ and an inability to differentiate between terms.

2. Better responses demonstrated clear knowledge and understanding of the legal infrastructure (courts, legislation, and international agreements) while linking it with the pace of technological change. Many of these responses included discussion of recent changes to the law to support their explanation, rather than using dated examples from textbooks.

   Weaker responses often contained a lot of detail on the legal infrastructure and/or pace of technological change but failed to link the two as required by the question. These responses were basically descriptive and showed little insight into the issue raised by the question.

Question 24 – Optional focus study 7 – Workplace

1. Better responses identified commitment as being a requirement on all stakeholders in the workplace. These responses used a balanced approach and often linked their arguments to the syllabus concepts of compliance and non-compliance with the law. They wrote from the range of issues and remedies covered by the syllabus. Strong responses also noted the extent of legal rights asserted and responsibilities incumbent when examining commitment to the law in the workplace. Recent changes in workplace law and ideological perspectives were used to pinpoint issues relating to commitment including collective bargaining, Australian Workplace Agreements, safety in the workplace, discrimination and termination of employment (including unfair dismissal). Section 51 (constitutional powers) were also incorporated by better responses to demonstrate an extensive understanding of commitment to the law.

   Weaker responses lacked an understanding of commitment and did not associate commitment with compliance or non-compliance. There was little or no recognition of the relationship between the existence of law and the need to identify and argue active measures of compliance or non-compliance. These responses tended to a general discussion and often relied on vague undefined references to legal terms.

2. Better responses clearly related cause and effect and noted changes which have occurred in Australian society in relation to law in the workplace. They dealt with syllabus-defined areas of change in the workplace and the changes in society leading to law reform. In particular, they demonstrated depth of understanding of the contemporary ideological debate that has shaped the workplace over the past two decades. These responses used multiple statutory instruments, common law and media references as well as international law to support their arguments for how changes in society have been reflected in law in the workplace at both state and Commonwealth levels. These responses were well argued, coherent and sustained throughout.

   Weaker responses tended to rely on a chronological history of workplace law, with many referring in great detail to the development of the law of employment. These responses often quoted media examples, common law or statutes but they did not integrate the references to make clear the relationship between the changes to law and societal change; nor did they necessarily show understanding of the more recent changes in workplace law in Australia.

Question 25 – Optional focus study 8 – World order

1. Better responses clearly evaluated both the legal and non-legal ways of working towards world order. Candidates strongly supported their reasoning and integrated relevant references to case studies, media reports, and quotes from eminent persons. Legal ways tended to be analysed more critically than non-legal ones. Non-legal ways included non-government organisations such as the International Crisis Group, the media and the role of persuasion, negotiation and preventative diplomacy (often these were mentioned rather than evaluated).

   Weaker responses were descriptive and used case studies as narratives rather than evaluating and integrating them. There was a tendency to confuse the International Court of Justice and the International Criminal Court as well referring to issues such as asylum seekers, violence against women and the Kyoto Protocol as world order concerns rather than world issues. These candidates often confused non-legal measures with illegal measures.

2. Better responses demonstrated depth of knowledge relating specifically to sovereignty and the limits it places on achieving world order. These responses addressed the effectiveness of the law and specified where the law is less effective than non-legal measures in achieving world order.

   Weaker responses had difficulty in putting forward points for and/or against whether the nation state limits the effectiveness of the law in achieving world order. These responses often confused issues. Many weaker responses used Hitler’s invasions of other countries as an example in this question, which limited the opportunity for relevant discussion.

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