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5. 2010 HSC Notes from the Marking Centre — Legal studies

2010 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 2010 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 2010 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 the Legal Studies syllabus is being examined in the HSC for the first time in 2011.

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 in excess of the space allocated 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

1. In better responses, candidates demonstrated a clear understanding of the main differences between common law systems and civil law systems, explaining features such as the adversarial and inquisitorial approaches and the different role played by judges in each system.

   In weaker responses, candidates showed a lack of understanding of these terms, many simply referring to common law and civil law. Candidates failed to compare the two systems, most simply describing the features of each.

2. In better responses, candidates integrated a contemporary human rights issue into the discussion of a non-legal measure used to promote human rights.

   Many candidates identified a non-government organisation (NGO) such as Amnesty International or World Vision as the non-legal measure and discussed the work they do to assist people who suffer from a lack of human rights. The media was also a common non-legal measure identified.

   In some better responses, candidates recognised that non-legal measures such as the media could not be as fully effective as legal means, such as law reform or a change in Government policy, which were ultimately necessary to overcome a lack of human rights. The plight of asylum seekers in mandatory detention was often used as a contemporary example.

   In less effective responses, candidates simply described the work of the media or NGOs with little assessment of their effectiveness.

   Some candidates confused non-legal with legal measures, discussing the implementation of legislation or the work of the Australian Human Rights Commission. Others confused non-legal with illegal measures, choosing to discuss terrorism or military force.

Section II – Focus study – Crime

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

Question 17

1. The majority of candidates correctly identified two different parties to a crime. Some responses listed parties to the criminal court process such as the defendant for which marks were not awarded. Descriptions/explanations were not required.
2. Most candidates correctly outlined a situational and a social method of crime prevention. Weaker responses blurred law enforcement with crime prevention. This was a four-mark question which asked for an outline, so longer responses were unnecessary.
3. In better responses, candidates concentrated on contemporary issues, cases and legislation when explaining the importance of post-sentencing decisions within the context of the criminal justice system. These candidates did not confine themselves to the three post-sentencing decisions listed in the syllabus and clearly set out the importance of the decisions within the broader context of the criminal justice system. In weaker responses, candidates tended to describe the decisions without reference to context. Many candidates confused sentencing with post-sentencing decisions.
4. In better responses, candidates made sound judgements based on criteria on the effectiveness of the criminal justice system in achieving justice for individuals. Effectiveness was examined from a variety of perspectives (e.g. victim, perpetrator, etc). Candidates drew from a vast range of legal measures and current criminal justice issues as part of their analysis. They integrated the contemporary examples and supported this with links to legislation and cases.

   In weaker responses, candidates included very general examples that focused on the interests of society as opposed to individuals, with little direct reference to legal measures. Prepared answers invariably failed to address the specific requirements of the question.

Section III – Additional focus studies

Question 18 – Optional Focus Study 1 – Consumers

In better responses to both questions, candidates referred to a wide range of relevant cases, legislation, media reports and treaties, including recent updated legislation such as the Competition and Consumer Act 2010 (Cth) and the National Consumer Credit Protection Act 2009 (Cth). In better responses, candidates presented sustained, logical and cohesive answers, planning their responses to write approximately 1000 words.

1. In better responses, candidates showed an extensive knowledge of compliance and non-compliance in consumer law. Candidates throughout their responses referred to a wide range of federal and state legislation, case law and media reports – for example, the recent recall of Toyota cars, operating to ensure buyers and sellers comply with the law and the sanctions that apply to parties who fail to do so. These candidates used their extensive knowledge of a range of consumer issues to support an informed judgement on how compliance and non-compliance are demonstrated in the operation of consumer law. Reference was made to express and implied terms in contracts and the need to ensure goods were of merchantable quality, fit for purpose and matched the description. Relevant cases such as ACCC v Nissan Motor Company, Reardon v Morley Ford and Commercial Bank of Australia v Amadio along with relevant sections of the Trade Practices Act were integrated into responses to illustrate misleading and deceptive conduct and unconscionable contracts. Non-statutory mechanisms such as industry self-regulation and the role of the media further illustrated how compliance was encouraged.

   In weaker responses, candidates lacked an assessment of how compliance and non-compliance were demonstrated. These responses were descriptive and general in their explanation of the law relating to consumers. Candidates made limited reference to examples such as legislation, cases, media reports, and treaties.

2. In better responses, candidates demonstrated an extensive knowledge of the different legal protections for both consumers and manufacturers/suppliers including statutory controls, common law remedies and recent media reports on topics such as the recall of Toyota cars, solariums, banking and financial service providers and the contractual obligations surrounding consumers and suppliers. Candidates presented sustained, logical and cohesive answers which integrated relevant examples of legislation, cases, media reports and treaties into their response. Candidates provided a thorough explanation of why there are different legal protections for consumers and manufactures/suppliers.

   There were some lengthy prepared answers which failed to demonstrate why there were different legal protections for consumers and manufacturers/suppliers. Instead, these focused on the effectiveness of consumer law in general without reference to the question.

   In weaker responses, candidates gave a general in their description of legal protection for consumers and manufactures/suppliers and failed to address the ‘why’ component of the question. Legislation, case law, media reports and treaties were infrequently cited and, when applied, were listed rather than integrated into the response.

Question 19 – Optional Focus Study 2 – Family

1. This was not a law reform question as such, so there was no need to refer to the agencies of reform and conditions that give rise to law reform. In better responses, candidates engaged with the topic of improvement and made an assessment as to whether changes in family law are in fact an improvement on the preceding position. They identified the relevant changes, integrating a wide range of legislation (including amendments), cases, media reports and treaties and made an informed judgement on whether these identified changes were or were not an improvement. Candidates responded to this by a very detailed examination of one change or with reference to several changes. Many focused on changing social values and issues such as alternative family arrangements, marriage and divorce, including shared parenting, as well as birth technologies and surrogacy.

   In weaker responses, candidates failed to engage with the concept of ‘improvement’ or to refer to the question in any meaningful way. Often they gave an historical overview of changes in family law without acknowledging whether it was an improvement on previous law. Weaker responses were brief, with limited legal terminology. Many candidates incorrectly named legislation/cases or made them up.

2. In better responses, candidates employed a range of issues or completed one or two in depth, using explicit criteria to assess the effectiveness of the law’s response. These responses were sustained, logical and cohesive, addressed a range of legal responses including legislation, case law, alternate dispute resolution and the role of government agencies such as DOCS, and clearly linked them to the identified problem.

   In weaker responses, candidates focused on domestic violence and/or child abuse and neglected other issues. These responses were descriptive and lacked any assessment of the effectiveness of the law in responding to the problem. There was limited reference to legislation, cases, media and treaties with very little acknowledgement of contemporary cases. These responses were often brief and made general statements of effectiveness without any reference to supporting examples from legislation, cases or media.

Question 20 – Optional Focus Study 3 – Global environment

1. In better responses, candidates demonstrated extensive knowledge of the challenges in relation to the global environment such as biodiversity, atmosphere, marine environments and deforestation and thoroughly inquired into how the law has responded to these challenges. They clearly indicated the international framework which helps to protect the global environment, including ‘hard’ and ‘soft’ law approaches such as the Stockholm Declaration and The Earth Summit and subsequent protocols. Better responses also included an inquiry into the domestic legal framework and the process by which environment protection is effected. The relevant laws were clearly linked with the identified challenges in cohesive and sustained responses.

   In weaker responses, candidates demonstrated limited knowledge of the challenges faced by the global environment. They tended to make general descriptive statements about laws that respond to challenges to the global environment without undertaking an examination of how they respond.

2. In better responses, candidates demonstrated extensive knowledge of moral and ethical standards in relation to the protection of the global environment. They made an informed judgement about the extent to which protection of the global environment reflects moral and ethical standards.

   Better responses differentiated between compliant and non-compliant nation-states and discussed the underlying reasons for compliance and/or non-compliance.

Question 21 – Optional Focus Study 4 – Indigenous peoples

1. In better responses, candidates wrote logical, sustained responses that integrated examples of domestic law from a variety of nation-states (including Canada, Botswana, Japan, New Zealand, USA, Papua New Guinea, Norway and Australia) to demonstrate why justice was difficult to attain on the domestic level. Candidates also used international laws and measures such as the the UN, treaties, UN Declaration on the Rights of Indigenous Peoples (UNDRIP), the Permanent Forum, rapporteurs, NGOs and IGOs to demonstrate the barriers to justice. These candidates analysed an array of reasons including locus standi, state sovereignty, political will, globalisation and colonisation. A wide variety of case studies was integrated.

   In mid-range responses, candidates demonstrated sound knowledge of reasons why justice was difficult to achieve but mainly concentrated on state sovereignty. They relied on case studies and were descriptive in nature. Many candidates referred to law in general terms but did not specifically separate international and domestic law.

   In weaker responses, candidates concentrated on case studies rather than law. Responses were brief and descriptive with very generalised reasons. Some candidates displayed little understanding of the international perspectives of this topic, and relied on generalisations about Sorry Day, Mabo and discrimination in Australia.

2. In better responses, candidates demonstrated extensive knowledge of both domestic and international law related to the rights of Indigenous peoples. These responses were based on criteria such as self-determination, cultural integrity, self-identification and sovereignty. Reference to a wide variety of domestic laws from other nation-states and Australia as well as international measures, were integrated into the response including UN and its bodies, the World Bank, the Permanent Forum, UNDRIP and NGOs. Candidates used logical, sustained arguments integrating case studies to demonstrate clear judgements of effectiveness in the law.

   In mid-range responses, candidates relied on case studies and some legislation. Discussions about the effectiveness of the law were often not based on criteria. These responses relied on descriptions about law, international bodies and/or case studies.

   In weaker responses, candidates generally gave brief answers that relied on Aboriginal and Torres Strait Island peoples as the only example. Candidates are encouraged to avoid using generalisations and stereotypes.

Question 22 – Optional Focus Study 5 – Shelter

1. In better responses, candidates drew from a wide range of legal methods to secure shelter. They related the assessment of the effectiveness of securing shelter to the relevant legal measures. Legislation, current cases and media reports were integrated to support candidates’ reasoning. Mention was often made to the changes in rental laws flowing from the Residential Tenancies Act 2010 (NSW). Most candidates constructed their responses around freehold and leasehold but responses were not limited to these areas and included discussion of accommodation for Aboriginal and Torres Strait Islander peoples.

   In weaker responses, candidates lacked assessment of the effectiveness of the law. Nevertheless they often demonstrated an awareness of the various methods of securing shelter.

2. In better responses, candidates drew from a wide range of course content to answer the question. Thorough explanations were provided for why and how governments have become involved in protecting the security of shelter. These responses integrated legislation, cases and media reports to support their reasoning.

   In weaker responses, candidates recounted the history of government involvement in the security of shelter. However there was no effective discussion of how or why this involvement had developed.

Question 23 – Optional Focus Study 6 – Technological change

1. In better responses, candidates demonstrated a clear understanding of how the law relating to technological change reflects moral and ethical standards within society. They used changes that have occurred in both domestic and international legal instruments to support their analysis.

   In weaker responses, candidates often used prepared responses that gave a great deal of information but failed to answer the question.

2. In better responses, candidates engaged directly with the issue of equal access to technology and the role of law in achieving access and, most importantly, equal access.

   In weaker responses, candidates considered access more globally and often did not sufficiently identify the law that impacted on that access.

Question 24 – Optional Focus Study 7 – Workplace

1. Better responses identified a range of issues arising in the workplace which can be the source of injustice for stakeholders. In these responses, candidates used a balanced approach and clearly linked their arguments to the syllabus concepts. Again, recent changes in workplace law and ideological perspectives were used to pinpoint justice issues in relation to syllabus areas, including the statutory framework, collective bargaining, AWAs, enterprise agreements, safety in the workplace, discrimination and termination of employment, including unfair dismissal.

   In weaker responses, candidates lacked an understanding of justice/injustice and did not adequately associate justice with compliance or non-compliance in the workplace. These candidates often interpreted justice and commitment as being inherently or implicitly present based on the reasoning that if a law exists then this demonstrates that an injustice has been remedied. There was little or no recognition of the relationship between the existence of law and the need to identify and explore measures of compliance or non-compliance by the stakeholders in the workplace in the context of achieving justice.

   These responses tended to general discussion and often relied on vague references to legal terms such as AWAs, trade unions, safety issues and legislation and discrimination issues and remedies without attacking the question of ‘why justice has been hard to achieve’. These candidates acknowledged that there are justice issues but did not develop a response as to why.

2. In better responses, candidates clearly related cause and effect, noting changes that had occurred in the processes of settling industrial disputes in the workplace. They dealt directly with the syllabus areas of industrial dispute settlement in the workplace and changes in society leading to changes and reform of the law in this area. In particular, they demonstrated depth of understanding of the contemporary ideological debate which has shaped the workplace over the past two decades, including the use of constitutional powers to assume Commonwealth responsibility for law-making in this area. These candidates used multiple statutory instruments, common law and media references to support their arguments.

   In weaker responses, candidates often provided a chronological history of statutory industrial dispute mechanisms and associated courts or tribunals, sometimes with a litany of prepared comments regarding arbitration, conciliation and mediation. They often quoted media examples, common law or statutes but did not integrate the reference into their explanation or discussion 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, or how they have impacted on the relative effectiveness of industrial dispute-settling processes.

Question 25 – Optional Focus Study 8 – World order

1. In better responses, candidates referred to a range of concepts and/or legal and non-legal measures and demonstrated extensive knowledge of the challenges affecting the achievement of world order. Candidates presented strong and critical reasoning as to why world order is hard to achieve and supported their arguments with the integration and analysis of relevant international law, case studies, media reports and quotations. Candidates referred to relevant and current examples of international conflict such as Sudan, the Middle East, the Congo, East Timor, Iraq, Afghanistan and North Korea.

   In weaker responses, candidates lacked depth of knowledge and provided a basic description of measures that attempt to achieve world order. The responses lacked substance and reasoning as to why or why not world order is hard to achieve.

   World issues such as whaling, asylum seekers, global warming, trans-national corporations, poverty, violence against women, the Tampa crisis, the Convention on the Rights of the Child, and the death penalty are not world order issues. It is important to understand that human rights abuses are not world order issues unless they are on a mass scale and thus become a crime against humanity.

2. Better responses demonstrated a depth of knowledge regarding the impact of compliance and non-compliance on the ability of both legal and non-legal measures to achieve world order. This included reference to the United Nations, international instruments, international courts and tribunals, regional IGOs and peacekeeping missions, as well as preventative diplomacy, persuasion, NGOs and the media. Candidates made an informed and critical judgement and supported their analysis of the issues relating to compliance and non-compliance by referring to relevant and appropriate examples of international law, case studies (similar to those referred to in (a) above) and media reports and quotations.

   In weaker responses, candidates tended to describe measures that attempt to achieve world order and provided unsupported statements relating to the notion of compliance and non-compliance. There was some confusion between the roles of the International Court of Justice, the International Criminal Court and the ad hoc tribunals.

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