VCE Legal Studies 2024

Question 3b (6 marks): factors in referendum success

Based on Section A Question 3b. (6 marks). Analyse two factors that may affect whether a future proposal to change the Australian Constitution succeeds at a referendum.

Model answer

(a) Factor 1: bipartisan support

When both major parties back a proposal, voters receive one clear message and there is usually no organised, well-funded "no" campaign. This is significant because many voters take their cue from the party they support. Moreover, the reverse also holds: once one major party opposes a proposal, a "no" campaign forms and uncertainty spreads, and voters who are unsure tend to keep the status quo. The impact is that a future proposal without cross-party backing starts at a serious disadvantage, which helps explain why only 8 of 45 proposals have passed.

(b) Factor 2: the double majority requirement in section 128

A proposal must win a national majority of voters and a majority of voters in at least four of the six states. This means a proposal can win the national vote and still fail if support is concentrated in the populous states. This is significant because it deliberately sets a high bar, so only proposals with broad support across the country succeed.

(c) Relationship between the factors

The two interact: without bipartisan support it is very hard to build the spread of support across states that the double majority demands, so the lack of one makes the other harder to meet. For future reform, the likely lesson is that a clear proposal with cross-party backing has the best chance of clearing the double majority.

Marker's note

the report said many students named relevant factors but did not link them to the success of future constitutional reform, which the question required. High-scoring answers treated each factor in its own paragraph, used analytic language ("This is significant because", "The impact of this is"), and considered significance, relationships between factors or historical patterns such as the 8 of 45 record. Other creditable factors included the clarity of the proposal, voter conservatism and public education about the proposal.

Question 3c (5 marks): a constitutional check on Commonwealth law-making

Based on Section A Question 3c. (5 marks). Other than the referendum process, discuss one way the Australian Constitution checks the law-making powers of the Commonwealth Parliament.

Model answer (express protection of rights).

1. The check. The Constitution contains a small number of express rights that the Commonwealth Parliament cannot legislate against. For example, section 116 stops the Commonwealth making laws that establish a religion or prevent the free exercise of any religion. If Parliament passes a law that breaches an express right, the law can be challenged in the High Court and declared invalid, so Parliament does not have unlimited law-making power.
2. Strength. Because these rights are entrenched, Parliament cannot remove them by ordinary legislation; only a successful referendum could change them. This makes the check durable.
3. Weakness. However, there are only five express rights and each is narrow in scope, so most areas of Commonwealth law-making are not restricted by them at all.
4. Weakness. On the other hand, the check is not self-enforcing: a law stays in force unless someone with standing brings a challenge to the High Court, which is costly and slow, and the Court may read a right narrowly.
5. Judgement. Express rights are therefore a real but limited check: effective within the few areas they cover, but leaving Parliament wide freedom elsewhere.

Marker's note: the command term is "discuss", and the report said many students only explained how the check works. Full marks needed strengths and limitations ("however", "conversely"), a focus on the Commonwealth Parliament rather than state parliaments, and one of the study design's three means: the High Court protecting representative government (sections 7 and 24, with a case such as Roach v Electoral Commissioner), the separation of powers (weakened in practice because ministers sit in both the executive and the legislature), or express rights. The report also encouraged using a case or example as evidence.

Question 4 (8 marks): law reform bodies and legislative reform

Based on Section A Question 4 (8 marks). Evaluate the ability of either parliamentary committees or Royal Commissions to influence legislative reform, using one example of a recommendation for law reform.

Model answer (Royal Commissions, using the Royal Commission into Victoria's Mental Health System).

• Strength: powers of inquiry. A Royal Commission can compel witnesses and documents and investigate an issue in depth, so its recommendations rest on strong evidence. The Mental Health Royal Commission gathered extensive evidence from people with lived experience and recommended replacing the existing mental health legislation, which gave Parliament a detailed, evidence-based case for change; Parliament then passed the Mental Health and Wellbeing Act 2022 (Vic).
• Strength: public awareness. Hearings and reports attract media attention and public debate, which builds pressure on the government to act.
• Weakness: recommendations are not binding. The government is expected to respond but may accept, reject or modify recommendations, and it decides which, if any, become bills.
• Weakness: cost and time. Royal Commissions are expensive and can take years, delaying reform, and the government sets the terms of reference, so some issues or groups may be left out.
• Judgement. Royal Commissions have a strong ability to influence legislative reform, especially when the government that established them commits to act, as happened when Victoria's government committed to implement the mental health recommendations. Their influence is limited, though, by their dependence on the government's political will.

Marker's note: the report said "evaluate" required strengths and weaknesses and then an overall judgement, and full marks were not available without that judgement. It was marked holistically: two to four points were typical, and fewer points explored in more depth could still earn full marks. Students had to stay with one body (committees or Royal Commissions) and one example; the report noted some confusion about the Victorian Law Reform Commission, which is neither. Examples the report accepted included the Royal Commission into Victoria's Mental Health System, the Yoorrook Justice Commission, the Robodebt Royal Commission and Victorian and federal parliamentary committee inquiries.

Question 5 (10 marks): is VCAT always the most appropriate institution?

Based on Section A Question 5 (10 marks). Discuss the extent to which you agree that VCAT is always the most appropriate institution for resolving civil disputes and achieving the principles of justice in Victoria.

Model answer (plan and key paragraphs).

1. Contention. Agree to a limited extent: VCAT is often the most appropriate institution, but the word "always" overstates it, because some disputes are better suited to the courts or to Consumer Affairs Victoria.
2. Access (for). Low fees, no pre-trial procedures and an informal setting mean parties can often run their own case, so VCAT promotes access for people who could not afford court.
3. Access (against). However, VCAT cannot hear some disputes, such as class actions or matters under federal law, so for those parties the courts are the only option; and if the other side hires lawyers, costs can still be high.
4. Fairness (for and against). Specialist members in VCAT's lists bring expertise to the dispute, and decisions are binding, which gives finality. On the other hand, the relaxed rules of evidence may feel less fair in a complex dispute, where a court's strict procedures better test the evidence, and appeals from VCAT are limited to questions of law.
5. Equality. Informality can help an unrepresented party participate, but an imbalance between a represented and an unrepresented party can undermine equality, a problem that a court with stricter procedures may manage differently.
6. Alternatives. For a simple consumer complaint, Consumer Affairs Victoria may be quicker and free; for a complex, high-value claim, or where a party wants a precedent set, a court is more appropriate.
7. Conclusion. VCAT is the most appropriate institution for many small to medium civil disputes, but not always, which is why the statement is only partly true.

Marker's note: the report said higher-scoring responses engaged with the words "always" and "most", compared VCAT with the courts or Consumer Affairs Victoria, and linked their points to at least two principles of justice (fairness, equality, access). Responses had to conclude on the extent of agreement and weigh both strengths and weaknesses.

Question 2c, Section B (6 marks): Commonwealth and state law-making powers

Based on Section B Question 2c. (6 marks). Using the Vanderstock v Victoria stimulus, explain the law-making powers of the Commonwealth and state parliaments.

Model answer.

• (a) Division of powers. The Australian Constitution divides law-making powers between the Commonwealth and state parliaments, so each can legislate only in certain areas.
• (b) Exclusive powers. Only the Commonwealth can make laws in these areas, either because the Constitution expressly bars the states or because of the nature of the power. Source 3 shows one: section 90 makes the power to impose duties of excise exclusive to the Commonwealth, which is why the plaintiffs argued Victoria's distance-based charge was invalid.
• (c) Concurrent powers. Both levels of parliament can legislate in these areas. Taxation (section 51(ii)) is concurrent, which is why Victoria argued its charge was a consumption tax that a state may impose rather than an excise. If a valid Commonwealth law and a state law in a concurrent area are inconsistent, section 109 makes the Commonwealth law prevail and the state law invalid to the extent of the inconsistency.
• (d) Residual powers. These are the areas not listed in the Constitution that the states kept at Federation. They are held by the states. Regulating the use of Victorian roads, such as requiring owners to record and report kilometres travelled, is a residual state matter.

Marker's note: the report required all three types (exclusive, concurrent and residual) with reference to the stimulus, particularly Source 3. Section 109 was creditable but not needed for full marks. This question had an average of 2.8 of 6, and the report listed the division of law-making powers among the weaker areas of the whole paper. Avoid mislabelling examples: section 51 powers are mostly concurrent, not exclusive.

Question 2d, Section B (3 marks): activism or conservatism in Vanderstock

Based on Section B Question 2d. (3 marks). Decide whether the majority ruling in Vanderstock v Victoria is an example of judicial activism or judicial conservatism, and justify your view.

Model answer (judicial activism).

• (a) Position. The majority ruling is better described as judicial activism.
• (b) Meaning. Judicial activism is where judges are prepared to depart from traditional or established interpretations, giving a broader reading that changes the law, rather than applying past precedent narrowly.
• (c) Justification from the source. Source 3 records that, according to Justice Gordon's dissent, the Court had held for many decades that a tax on the use of goods is not an excise. By widening "excise" to include this consumption tax, the majority departed from that long line of authority; Justice Gordon went so far as to say the ruling amends the Constitution rather than interprets it. Choosing not to follow settled precedent, with major consequences for state taxing powers, is the hallmark of an activist approach.

Final answer: Judicial activism, because the 4:3 majority departed from decades of precedent that a consumption tax is not an excise, as the dissent in Source 3 points out.

Marker's note: the report accepted either view if it was strongly justified from the stimulus. An argument for conservatism could say the ruling preserved the Commonwealth's exclusive power and gave no sign of weighing community values. This question averaged 1.4 of 3 and 26% of students scored 0, so define the approach you choose and tie it to specific wording in Source 3.