2011 HSC Notes from the Marking Centre – Legal Studies
Contents
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 2011 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 2011 Higher School Certificate examination, the marking guidelines and other support documents developed by the Board of Studies to assist in the teaching and learning of Legal Studies.
General comments
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 guides 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 that are not included in the glossary, such as ‘design’, ‘translate’ or ‘list’.
In preparing for the examination, candidates should:
- note that the objectives and outcomes in the syllabus are very important to all parts of the course and to all parts of the examination
- develop a sound understanding of the basic concepts and processes found in the course, as these are most likely to be referred to in questions
- note that the rubric applies to Section II Part B (Crime) and Section III (Options) of the examination paper
- in Section III, clearly identify the alternative (a) or (b) being answered
- directly address a quotation if required by the question.
Candidates should note that responses that are clearly pre-prepared reflect little engagement with the issues raised in the question and will not attract higher marks.
Section II
Part A – Human Rights
General comments
Candidates are reminded that they should be familiar with the terms used in the Legal Studies syllabus, have a clear understanding of the basic concepts, and read the whole question carefully.
Specific comments
Question 21
In better responses, candidates identified two organisations, for example the Red Cross and Amnesty International.
In weaker responses, candidates confused non-government organisations with other terms such as non-legal measures protecting human rights.
Question 22
In better responses, candidates demonstrated an understanding that the key element of the right to self-determination is that it is a collective right for an identified group to manage an aspect of their internal affairs, and candidates expressed this succinctly. In the best responses, candidates pointed out that the right did not only attach to the ownership of land and that a group of peoples was not limited to indigenous peoples.
In weaker responses, candidates wrote in very general terms, or identified the right as attaching to individuals and/or confused it with state sovereignty.
Question 23
In better responses, candidates succinctly identified a relevant human right and set out the context for its legal recognition. In so doing, candidates clearly identified the point of legal recognition for the right. For example, universal suffrage in the Australian context was traced through the suffragette movement and its legal recognition through legislation and in the Australian Constitution.
In weaker responses, candidates often tended to discuss a human rights issue rather than identify an actual human right. Some candidates made reference to the recognition of a human right by the international and/or domestic community but did not clearly outline how this was manifested in the legal recognition of that right.
Question 24
In better responses, candidates incorporated a contemporary issue to support their explanation and recognised both the positive and negative impacts that state sovereignty may have in enforcing human rights. For example, on the positive side, states may choose to pass and enforce domestic laws that protect human rights. Conversely, states may choose to ignore the international community and deny human rights to their citizens.
In weaker responses, candidates either did not link the contemporary issue to state sovereignty and its role in enforcing human rights or did not consider state sovereignty at all. In some responses, candidates considered state sovereignty but its role in enforcing human rights was given limited treatment.
Part B – Crime
Question 25
General comments
Question 25 was taken from the Principal Focus and involved consideration of the tension between community interests and individual rights and freedoms within the criminal justice system. Candidates displayed an understanding of an overarching concept such as this tension and drew support for their explanations from all areas of the crime component of the syllabus.
The exam specifications indicate that the expected length of response for this question should be around four examination writing booklet pages (approximately 600 words). Candidates were able to access full marks within this four-page length. Candidates who wrote long responses ran the risk of lacking focus and not presenting a sustained, logical and cohesive response as required by the rubric.
Candidates are reminded that they should directly address the question asked. Some candidates presented a prepared response that often focused on the effectiveness of the criminal justice system without specifically dealing with the ‘tension’.
Specific comments
Candidates approached the question in one of two ways. The more usual approach was to draw out the tension by referring to a variety of criminal justice system areas, including sentencing, young offenders, the criminal investigation process, post-sentencing decisions and situational crime prevention. Less often, candidates would use just one or two areas and explore these in greater depth. Both of these approaches, when supported by reference to relevant legislation, cases and examples, allowed candidates to demonstrate sophisticated reasoning when engaging with the key concept of ‘tension’ between competing interests.
In mid-range responses, candidates demonstrated an understanding of the concept of the tension involving community interests and individual rights and implied a tension between them in the criminal justice system. However, the lack of an argument to fully examine this tension with support from relevant examples restricted access to the higher mark range.
In weaker responses, candidates did not engage with the concept of ‘tension’ and merely set out the interests of various participants in the criminal justice system in general terms. There was often a lack of reference to relevant supporting examples.
Section III – Options
Question 26 – Consumers
In better responses to both part (a) and part (b), candidates referred to a wide range of relevant cases, legislation, media reports and treaties, including recently updated legislation such as the Competition and Consumer Act 2010 (Cth) and the National Consumer Credit Protection Act 2009 (Cth). Candidates reflected the criteria of the new rubric to present a sustained, logical and cohesive answer, planning their responses to approximately 1000 words (about 8 answer booklet pages).
- In better responses, candidates demonstrated extensive knowledge of government regulation as it applies to consumers. They referred to the shift from the notion of caveat emptor to the protections provided by statutory law and regulation as the most efficient way to protect consumer rights and provide remedies. The role of federal organisations such as the ACCC was highlighted and a range of relevant cases and their implications was referred to. The limitation of domestic law to provide protection on transactions made overseas or online was highlighted and candidates referred to a range of examples, including Smythe v Thomas and legislation such as the Spam Act 2003 (Cth) and the Electronic Transactions Act 1999 (Cth). In better responses, candidates made informed judgements, based on clear criteria, about the effectiveness of government regulation to achieve justice for consumers. These candidates integrated relevant legislation, cases, media reports and international instruments to support their responses.
In weaker responses, candidates made general statements about consumer law that were descriptive rather than informed judgements.
- In better responses, candidates thoroughly explained why justice for consumers has been hard to achieve. Many took a historical view and explained the limitations of caveat emptor and laissez faire as markets became increasingly complex. The question, however, permitted candidates to approach the issue from many different perspectives, such as extrapolating from a particular case study. Through explanations of market imbalance and the increased powers of large corporations, better candidates demonstrated extensive knowledge of justice issues in relation to the need for government regulation to protect consumers and provide remedies. Cases integrated into responses included ACCC v Arnotts Biscuits and ACCC v Nudie Foods. Others referred to the impact of technology and the problems of the global marketplace. Candidates proposed that the rapidly emerging online technologies and the lack of international protection made justice for online consumers more difficult to achieve.
Another area mentioned was contract law. In better responses, candidates integrated cases such as Commercial Bank v Amadio and legislation such as the Contracts Review Act 1980 (NSW).
In mid-range responses, candidates often had relevant content on initiatives to redress injustice. They failed, however, to develop a sustained discussion of the ‘why’ part of the question.
In weaker responses, candidates tended to make general statements and were very descriptive rather than analytical.
Question 27 – Global environmental protection
- In better responses, candidates clearly identified a range of needs for global environmental protection, such as biodiversity, loss of habitat, equity, sustainable development, climate change and resource depletion, as well as why these needs should be met internationally. Candidates in this range clearly integrated key international legal responses, such as the mega-conferences (Stockholm, Rio and Johannesburg), as well as specific protocols and conventions, such as the Montreal Protocol, CITES and RAMSAR. Reference to international tribunals was included to extend the citation of international responses to global environmental protection.
In better responses, candidates also included examples of compliance and non-compliance with respect to these international legal responses. Examples of non-compliance included ICJ cases, such as Australia v France, and examples of compliance included the effectiveness of the Montreal Protocol, CITES and RAMSAR. These responses also included an analysis of hard and soft law, the role of state sovereignty, and the ICJ. Candidates also integrated a discussion of how effectively international legal developments with respect to global environmental protection have been passed into domestic legislation. The integration of examples that clearly addressed the question and a sustained, logical and coherent answer within the expected 1000 words (about 8 answer booklet pages) were further indicators of a better response.
In weaker responses, candidates lacked engagement with the question, especially ‘why’ there was the need for an international legal response. These responses tended to lack specific reference to international legal developments with respect to global environmental protection. In many of the weaker responses there was a tendency to rely on domestic cases and the role of NGOs, which had little relevance to the question. Many responses were of insufficient length.
- In better responses, candidates clearly demonstrated extensive knowledge of the conflict between the demand for resources and global environmental protection. In these responses, candidates examined specific legal measures, such as CITES and the Kyoto Protocol, and bi/multilateral agreements, such as the IWC. Candidates discussed international initiatives in relation to the conflict, addressing a range of examples in areas such as biodiversity, the atmosphere and the marine environment. In these responses, candidates also analysed the domestic response to the conflict and included issues such as constitutional constraints and fragmentation in making a clear judgement about the effectiveness of the law in addressing these conflicts. Candidates also made clear reference to the issue of state sovereignty in relation to global environmental protection and integrated examples of legal responses to the conflict between resource use and global environmental protection.
In weaker responses, candidates provided examples of legal responses to the conflict between resource use and global environmental protection without relating these to specific issues of conflict, as required by the rubric. Candidates tended to make general statements about global environmental protection and did not clearly identify why the response being discussed was ‘legal’, or did not engage with the question.
Question 28 – Family
- In better responses, candidates considered the rights of both parents and children, developed an argument, and included comprehensive current legislation and case law. Candidates addressed the question directly and developed a cohesive argument. They integrated current and relevant media examples to support their assertions within the expected 1000 words (about 8 answer booklet pages). Longer responses ran the risk of losing focus and not presenting a sustained coherent argument as required by the rubric.
In weaker responses, candidates struggled to cover all aspects of the question as well as the impact of changing values. Often there was a stronger focus on parents rather than children. Weaker responses offered generalised judgements without reference to criteria. Some were pre-prepared responses about law reform that laboured the details about the changing nature of divorce without reference to parents and children.
- In better responses, candidates made reference to a range of ‘parties’, including partners, children, external agencies (NGOS, FRCs and mediators), grandparents and step-parents who were affected to some extent by relationship breakdowns. Relationship breakdowns included those arising from marriage, de facto and same-sex relationships. Candidates addressed the question directly and incorporated considerations such as child residence, property division, and spousal and child maintenance to support cohesive arguments. Judgements as to effectiveness of the law were clearly articulated and were coupled with an identification of just what was meant by achieving ‘justice’ in the case of relationship breakdown. In better responses, candidates integrated current and relevant media examples to support their arguments within the expected 1000 words (about 8 answer booklet pages).
In weaker responses, candidates did not directly address the question and did not articulate what was meant by ‘justice’ in the context of relationship breakdown. They did not include current legislation or case law. Where justice issues were discussed, the evaluation of such issues lacked depth and support. Generalised judgements were common without any reference to criteria.
Question 29 – Indigenous peoples
- This question related to the themes and challenges of this option and required candidates to engage with the topic area from a holistic perspective. In better responses, candidates assessed the extent to which changes in values and ethical standards have improved legal rights for indigenous peoples. A wide variety of case studies was integrated.
In better responses, candidates highlighted a variety of legal rights, including legal recognition, self-determination, and rights to land and resources as well as intellectual property, integrating ideas from throughout the topic to present a logical, cohesive and sustained response demonstrating extensive knowledge of international and domestic law. Answers integrated legislation, cases, media and international instruments, with candidates making judgements based on articulated criteria such as equality, justice and resource efficiency.
In mid-range responses, candidates had limited integration of relevant examples and supporting materials but demonstrated sound knowledge by concentrating on the evolution and impact of legally recognised rights.
In weaker responses, candidates concentrated on case studies rather than legal rights, writing in general terms. Candidates concentrated on social problems rather than legal rights and mainly referred to Aboriginal and Torres Strait Islander social issues.
- Overall, candidates attaining high marks demonstrated extensive knowledge of the difficulties faced by indigenous peoples of the world, including obtaining legal rights, legal recognition and self-determination, as well as land, resource and intellectual property rights.
In better responses, candidates integrated relevant international instruments and bodies and provided domestic laws, court cases and examples from a variety of nations where indigenous peoples live, including Norway, Canada, New Zealand, Japan and Brazil. Answers were sustained, logical and cohesive, while being within the expected length of 1000 words.
In mid-range responses, candidates demonstrated sound knowledge of the difficulties faced by indigenous peoples but relied on limited references to relevant legal and non-legal measures. Many responses were overly descriptive and reiterated examples and cases without engaging with the difficulties faced by indigenous peoples determining their futures inherent in those examples.
In weaker responses, candidates concentrated on social difficulties faced by indigenous peoples. These statements were often generalised and made with reference to Aboriginal and Torres Strait Islander peoples.
Question 30 – Shelter
- Overall, candidates who wrote better responses drew content from across the topic area. Some candidates approached the question by referencing either legal protection or remedies associated with securing shelter and/or contemporary issues concerning shelter. Certain basic concepts, such as gazumping and the cooling-off period, were poorly understood.
In better responses, candidates demonstrated an extensive knowledge of the processes of securing shelter, in particular buying and leasing, as well as other aspects of this option topic. It was made clear in the response exactly what laws were relevant and how they related to achieving just outcomes. The question asked ‘to what extent is the law effective?’ and better responses made a clear judgement on this point using articulated criteria.
Weaker responses lacked assessment of the effectiveness of the law and were often very general in approach and considered the provision of shelter without addressing specific legal issues, as required by the question.
- In better responses, candidates identified areas of conflict in regard to shelter and the legal measures available for their resolution. This was coupled with the integration of relevant examples, cases and laws to support their judgement on the effectiveness of the identified legal responses.
In better responses, candidates demonstrated extensive knowledge of the law drawn from across the topic area and made a clear judgement on the effectiveness of the law in resolving conflict. Examples drawn from shared space and strata title law were used to good effect. Candidates incorporated investigations into contemporary issues to highlight both the legal measures and the conflicts.
In weaker responses, candidates recounted conflicts regarding shelter but did not go into enough depth or were limited in the scope of the areas covered. An example of this was in the case of leasing, where candidates focused exclusively on the Consumer, Trader and Tenancy Tribunal without recognising other legal measures, such as anti-discrimination laws, lease agreements, condition reports or bonds. In many of the weaker responses, there was no judgement made on the effectiveness of legal measures.
Question 31 – Workplace
- Historical and contemporary events in workplace law, and changing ideological perspectives, were used well to pinpoint rights and responsibilities in relation to topic areas such as collective bargaining, enterprise agreements, safety in the workplace, discrimination, termination of employment including unfair dismissal, and leave entitlements. In many better responses, candidates included an outline of non-legal measures, such as the role of trade unions, employer associations, non-government organisations and the media, as well as a discussion of courts, tribunals and legislation. Candidates wrote about the workplace in relation to wider issues in Australian society.
In better responses, candidates indicated a clear understanding of the directive term ‘explain’ and engaged with the concept of a balance between recognising rights and enforcing responsibilities with respect to both employee and employer. They identified a range of legal measures available, and provided reasons as to why and how those legal measures contributed to the balancing of rights and responsibilities. Integration of legislation, cases, media, international instruments and other relevant materials allowed the candidates to relate cause and effect to the variety of legal measures available to regulate the relationships between all stakeholders in the workplace. In such responses, candidates integrated contemporary issues and explained rights and responsibilities arising from those issues relating to the nature of workplace law and the regulation of the workplace.
In weaker responses, candidates often were descriptive and lacked the ability to convey understanding of the links between the legal measures and the balancing of rights and responsibilities in the workplace. These candidates often demonstrated limited recognition of the relationship between the existence of law and the need to identify and argue active measures of compliance or non-compliance by the multiple stakeholders in the workplace. In these responses, candidates tended to general discussion of the rights of employees and often relied on vague references to legal terms such as Fair Work Australia, the FWA Ombudsman, trade unions and safety issues.
- In better responses, candidates made a clear and supported judgement in relation to how well law reform deals with contemporary issues in the workplace. Candidates dealt with the full range of contemporary issues set out in this topic and the reforms undertaken in this area. They also addressed change in the nature and regulation of the workplace and the influences leading to law reform. Judgements were made based on clearly stated criteria or demonstrated outcomes. In these responses, candidates demonstrated depth of understanding of the ideological debate that has influenced workplace law over the past two decades in particular and utilised multiple statutory instruments, common law and media references, as well as international law, to support their judgement. A number of candidates chose to focus on just one issue but still successfully addressed the question due to the depth of understanding of the effectiveness criteria, as well as the integration of multiple relevant examples.
In weaker responses, candidates tended to rely on an incomplete history of discrimination, safety, termination of employment and/or leave as contemporary issues in the workplace, with many referring in sketchy detail to the development of the law of employment and its reforms. In these responses, candidates often quoted media examples, common law or statutes, but did not integrate the references into their explanation or discussion and did not make clear the relationship between the changes to the law and the effectiveness of these changes in balancing the rights and responsibilities of the individual with the evolving values and ethical standards of society. Candidates often did not show an understanding of recent changes in workplace law in Australia, and tended to be vague and lacking reference to criteria to assess effectiveness.
Question 32 – World Order
General comment
Candidates are encouraged to apply contemporary case studies and to integrate relevant legislation, cases, media reports, documents and international instruments into their response. Reference to human rights violations (and associated international law, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child) should only be considered under ‘World Order’ if they are relevant to events that have a mass-scale impact and thus become crimes against humanity or threaten global peace and security. General world issues such as transnational crime, piracy, whaling, the impact of transnational corporations, the global financial crisis, climate change, poverty, asylum seekers, child soldiers and famine are not world order issues within the parameters set by the syllabus.
Specific comments
- In better responses, candidates demonstrated extensive knowledge and a thorough understanding of the role of nation states in achieving world order. Central to this was the notion of state sovereignty. Candidates integrated a range of examples to critically explain how nation states specifically implement or participate in measures (both legal and non-legal) to achieve and/or impede world order. Contemporary case studies integrated into responses included Libya, Syria, Rwanda, North Korea, East Timor, Iraq, Afghanistan, the Middle East and Sudan. This was supported by the integration and analysis of media reports, documents, international law and quotations from eminent persons. In these responses, candidates directly answered the question and incorporated world order concepts in a succinct manner within the expected 1000 words (about 8 answer booklet pages). Longer responses occasionally lost focus and so did not present a sustained coherent argument as required by the rubric.
In weaker responses, candidates provided a historical overview and/or description of measures that achieve world order with little attempt to make relevant the role of the nation state or specific nation states. They often referred to examples of world issues and human rights violations instead of world order concepts.
- In better responses, candidates clearly articulated a range of challenges to world order that specifically pose a threat to international peace and security. Candidates demonstrated extensive knowledge and critical argument, along with the required clearly supported judgement regarding the effectiveness of global cooperation via legal and non-legal measures in responding to the challenges to world order. These candidates supported their argument with the integration and analysis of relevant world order examples, including contemporary case studies as mentioned in (a) above, international law, media reports, documents and quotations from eminent persons.
In weaker responses, candidates did not engage with the concept of challenges to world order. They described examples of conflict and lacked depth of knowledge in relation to the measures that promote global cooperation. They often confused world order concepts with world issues and/or human rights violations.
NSW Government