COMPAK | LEGAL STUDIES UNIT 4

LEGAL STUDIES UNIT 4

Unit 4, Outcome 1 assessment tasks:

structured questions and written report

CAROL ROWLAND | GENAZZANO FCJ COLLEGE/RMIT URBAN SCHOOL

Area of Study 1 (‘The people and the Australian Constitution’) in VCE

Legal Studies Unit 4 focuses on the relationship between the Australian
people and the Australian Constitution in the process of law-making. This
article presents two alternative assessment tasks, which focus on the
same selected key knowledge and key skills for this area of study. Task
1A is in the form of structured questions and Task 1B is in the form of a
written report. Suggested answers are provided for the structured
questions option and an assessment rubric is provided for the written
report.

ASSESSMENT TASK 1A DETAILS

Name of task

Structured questions

Unit/area of study

Unit 4: The People and the Law

Area of Study 1: ‘The people and the Australian Constitution’

Outcome 1

‘Discuss the significance of High Court cases involving the interpretation of the Australian
Constitution and evaluate the ways in which the Australian Constitution acts as a check on
parliament in law-making.’
Source: VCE Legal Studies Study Design (2018–2022), VCAA, page 21, © VCAA, reproduced by
permission

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Key knowledge and key skills

This assessment task addresses the following (selected) key knowledge and key skills outlined
in Area of Study 1 in Unit 4. Note that some key knowledge points and key skills are not covered
in this task.

Key knowledge

 the roles of the Crown and the Houses of Parliament (Victorian and Commonwealth) in
law-making
 the means by which the Australian Constitution acts as a check on parliament in law-
making, including:
 the bicameral structure of the Commonwealth parliament
 the separation of the legislature, executive and judicial powers
 the express protection of rights
 the role of the High Court in interpreting the Australian Constitution
 the requirement for a double majority in a referendum
 the significance of one High Court case interpreting sections 7 and 24 of the Australian
Constitution.

Key skills

 define and use legal terminology

 discuss, interpret and analyse legal principles and information
 evaluate the ways in which the Australian Constitution acts as a check on parliament in
law-making
 analyse the ability of the Australian people to protect or change the Australian
Constitution
 discuss the significance of High Court cases involving the interpretation of the Australian
Constitution
 synthesise and apply legal principles to actual scenarios.
Source: VCE Legal Studies Study Design (2018–2022), VCAA, pages 21–22, © VCAA, reproduced by
permission

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INSTRUCTIONS AND CONDITIONS

Answer all questions in this question and answer book. The marks for each question are
indicated after each question. Additional space is available following the questions if you need
extra paper to complete an answer. If you use this additional space clearly label each answer
with the appropriate question number.

Conditions: Closed book

Time allowed: 50 minutes (plus 10 minutes reading time)

Marks allocated: 40 marks

QUESTIONS

Question 1 (2 marks)

Explain the role of the Crown in law-making.

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Question 2 (7 marks)

a. Describe the concept of the ‘separation of powers’. 2 marks

The concept of separation of powers refers to the process of dividing the power of the
government involving the procedure of giving every sector of the government a different
jurisdiction to avoid a capitalisation of power. This concepyt is necessary because it plays a
significant role as it prevents one sector of the government to make all the decisions therefore
will not have the power to make the abselute decision meaning will not be able to abuse it’s
power or the power of the government. A government decision will based on collective
decisions and approval and involve the concent of all aspects to a matter.

b. Discuss the extent to which the constitutional principle of the separation of powers can
act as a check on the Commonwealth parliament’s law-making powers. 5 marks
One principle of the constitutional separation of powers acting as a check on the on the
commonwealth parliament is through the bicameral structure of the Parliament. An advantage
of the bicameral tructure of the commonwealth parliament is the proper examination or
scrutiny of the porposed legislation, as the commonwealth parliament is based on the upper
house the senate and and lower house the house of represenatatives this structure requires
the proposed legislation to be debated within both houses of parliament which simply means
the proposed legislation will be put through a prolonged discussion or debate to discover its
limitations and approperiatness this process will lead to a highly satisfactory Bill. However a
limitation of this process would be that it is possible that one political party may comtrol the
majority of the seats in both the senate and the house of represenatatives in such case
legislation may be rushed through without review and debate, meaning the bicameral
structure may not act as a limit on the parliamentary law making powers. Another principle of
the constitutional separation of powers acting as a check on the commownwealth parliament
is through the express protection of rights, as these rights are simply human rights and
cannot be breached under any circumsatcnes therefore the commonwealth parliament cannot
pass legislation that supresses and breaches such rights. An advantage of these would be
that the commonwealth parliament is incapable of passing legislation that supresses and
ignores the express rights which are human rights by restruicting the commonwealth
parliament from making laws that are incosnuistant with the express rights. However, a
llimitation of these would be that there are few express rights in the Australian constitution

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limiting the law making powers of the commonwealth Parliament especially in comparison to
similar countries such as the US and Canadian constitution.

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Question 3 (6 marks)

a. Describe two features of the bicameral structure of the Commonwealth parliament.

2 marks
One feature of the bicameral structure of the commonwealth parliament is that it involves the
two house of the parliament the upper house known a the senate and the lower house known
as the house of representatives. Another feature of the bicameral structure of the
commonwealth parliament is that the Bills passed through both houses of the parliament will
require the approval of the kings represenataive (the governor general) known as the royal
assent.

b. Explain how the bicameral structure of the Commonwealth parliament upholds the
principle of representative government. 4 marks
The bicameral structure of the Commonwealth Partliament uphold the priniciple of
represeantative government through its elected members the upper house consisting of the
76 elected members for a term of 3 years and the lower house consisting of 151 members
elected for a term of 3 years. The political party that holds the majority of the seats within both
the upper house and the lower house of the commonwealth parliament will be subjected to
the government meaning that political party will form the government. Highlighting from the
abpve statement the members of the commonwealth parliament are elected and voted for to
hold a seat within the parliament by the stae and and territory voters expected to represent
their value and views therefdre the political party that holds the majority of the seats within
both the senate and the hosue of represenatative that forms the government si obligated tyo
represent the valiues and views of the people who have voted for

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Question 4 (5 marks)

a. Identify one section in the Australian Constitution (other than sections 7 and 24) that
serves to protect an express right of Australian people. 1 mark

b. Discuss how the express right you identified in part a. can act as a check on the law-
making powers of the parliament. 4 marks

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Use the following stimulus material to assist in answering Questions 5 and 6.

Vickie Lee Roach v. Electoral Commissioner and Commonwealth of Australia

In 2007, Vickie Lee Roach, an Indigenous woman who was serving a six-year term of
imprisonment in a Victorian prison, challenged the validity of the 2006 amendments to the
Electoral Act 1918 (Cwlth). These amendments, stated in the Electoral and Referendum
Amendment (Electoral Integrity and Other Measures) Act 2006 (Cwlth), disqualified all prisoners
from voting in federal elections. In June 2006, there were 20 209 prisoners in Australia, 24% of
whom were Indigenous. Prior to this amendment, in the period 2004 to 2006, only prisoners who
were serving sentences of three years or longer were disqualified from voting.
Roach, with the support of a strong legal team, including pro bono (no charge) representation by
the Human Rights Commission, filed an application to the High Court to gain its interpretation of
sections 7 and 24 of the Australian Constitution. These sections require that members of
parliament are ‘directly chosen by the people’.
The High Court, by a 4–2 majority, held that the amendment (of banning all prisoners from
voting) was inconsistent with the principles of representative government so it was
unconstitutional. However, the High Court deemed that the provisions in the Electoral Act of
prohibiting prisoners serving sentences of three years or longer from voting, was valid.
References: Vickie Lee Roach v. Electoral Commissioner and Commonwealth of Australia, High Court of
Australia, 26 September 2007, http://www.hcourt.gov.au/assets/publications/judgment-summaries/2007/
hca43-2007-09-26.pdf and Roach v. Electoral Commission, High Court of Australia, 26 September 2007,
http://www.austlii.edu.au/au/journals/AUIndigLawRw/2007/71.pdf

Question 5 (4 marks)

a. Identify the change made by the Commonwealth parliament to the Commonwealth

Electoral Act 1918 (Cwlth) in 2006 that prompted Vickie Roach to challenge the law.
1 mark

b. Explain why the change to the Commonwealth Electoral Act 1918 (Cwlth) in 2006
affected prisoners, and in particular, the Indigenous vote. 3 marks

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Question 6 (10 marks)

Evaluate the extent to which the High Court interpretations are significant in acting as a check
on Commonwealth parliament law-making powers. In your response you must make reference
to the Roach case provided in the stimulus material.

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Question 7 (6 marks)

a. Define the term ‘double majority’ and provide one example of a successful referendum.
2 marks

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b. Discuss how well the double majority requirement acts as a check on the legislative
power of the Commonwealth parliament. 4 marks

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Extra space for responses

Clearly number all responses in this space.

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Suggested answers
Note: The answers below are suggestions only. For some questions, more than one answer is
possible.

Question 1 (2 marks)

Explain the role of the Crown in law-making.

The law-making role of the Crown is predominately symbolic as the Governor-General (who is
the Queen’s representative in Australia) or Governor (who is the Queen’s representative in the
Victorian state parliament) does not actively participate in the law-making process that takes
place within the house of parliament. Instead, the Governor-General or Governor grants Royal
Assent, by signing the Bill, as a general matter of course. Royal Assent is the process whereby
the Queen’s representative signs the Bill and in doing so gives approval on behalf of the Queen
for a Bill to become law. This process takes place after the Bill has successfully passed through
both houses of parliament.
Royal Assent is an essential step in the law-making process, as the Crown forms part of the
structure of parliament. In accordance with section 58 of the Australian Constitution the Queen
does have the power to withhold Royal Assent at the Commonwealth level, although this has
never occurred.
Note: Other roles of the Crown include appointing the Executive Council (which is responsible
for administering the law and managing the business of government) and dissolving parliament,
such as the action of the Governor-General, Sir John Kerr, and bringing an end to a session of
parliament without dissolving it.
Marking guide:
1 mark for describing the function of the Crown
1 mark for stating the connection between the Crown and law-making

Question 2 (7 marks)

a. Describe the concept of the ‘separation of powers’. 2 marks

The concept of the separation of powers divides the institutions of government into three
branches or arms of power—the legislative, executive and judicial, so no one branch can
exercise the powers or functions of the others. This minimises the likelihood of corruption
through concentrated powers in one branch. The legislative power to make law is held by
the parliament and the executive power to administer the law is held by the Governor-
General, who in reality, acts on the advice of the Prime Minister and some senior
ministers (or the government). The judicial power to apply and interpret the law is held by
the courts and tribunals.
Marking guide:
1 mark for stating the separation of powers divides institutions of government into three
branches to minimise the risk of an abuse of power
1 mark for providing a description and identification of who holds each power

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b. Discuss the extent to which the constitutional principle of the separation of powers
can act as a check on the Commonwealth parliament’s law-making powers.
5 marks
In the majority of instances the concept of separation of powers is an effective check on
the law-making powers of the Commonwealth parliament. A key principle underpinning
the rule of law is that power is not concentrated in one branch of the legal and political
system but instead, distributed among the three arms of government. This allows for each
branch to check on and hold the other branches accountable, to ensure that there is no
abuse of power and that the democratic rights of the Australian people are preserved. For
example, the independent judiciary, which holds the power to apply and interpret the law
to resolve disputes, can check that the parliament does not make laws that exceed its
legislative power. Although it can be argued that the parliament can pass legislation that
indirectly impacts on the independence of the judiciary. For example, it was argued that
the 2016 anti-terrorism laws, which allowed the Commonwealth Government to strip dual
nationals involved in terrorist activities of their Australian citizenship, removed the
determination of criminal guilt in such matters, from the judiciary to the government.
The independent judiciary can also act as a check on the Commonwealth’s law-making
power by providing a means to resolve disputes in which an individual, organisation or
state government feels the legislative and executive branches (at Commonwealth level)
have made a decision or acted beyond their power. This is a way for individuals,
organisations or state government to challenge the validity of the decision. However, any
legislation or executive decisions that are potentially made beyond the power of the
parliament or executive will remain valid unless challenged in the courts, and such
challenges are reliant on the aggrieved party being willing to pursue the matter through
the courts and having sufficient legal standing.
The separation of powers also acts as a check on the Commonwealth’s law-making
power because it allows for the executive, which is responsible for the administering the
law and managing the business of government, to be scrutinised by the legislature. For
example, the government can be scrutinised by the parliament during question time.
However, the effectiveness of this separation of powers is mitigated because in reality the
legislative and executive powers are combined. For example, at the federal level, the
executive consists of the Governor-General who, in reality, acts on the advice of the
Prime Minister and some senior ministers, who are also members of the legislature.
Similarly the executive, on the recommendation of cabinet (legislative), makes judicial
appointments official, which might result in the perception that the government of the day
might be able to influence the composition of judges in superior courts.
Note: The sample response contains more reasons than would be required, catering for
a variety of responses.
Marking guide:
1 mark for providing a conclusive statement regarding the constitutional principle
3 marks for providing evidence to support the conclusion
1 mark for providing evidence to counter the conclusion

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Question 3 (6 marks)

a. Describe two features of the bicameral structure of the Commonwealth parliament.

2 marks
Bicameral means having a parliament with two houses that share the power of law-
making. In the Commonwealth parliament the houses are the House of Representatives
(lower house) and the Senate (upper house). Representatives are elected to both houses
of parliament. A bicameral structure also includes the Crown, represented by the
Governor-General.
Marking guide:
1 mark for stating a main quality or characteristic of the bicameral structure (x two = 2
marks)

b. Explain how the bicameral structure of the Commonwealth parliament upholds the
principle of representative government. 4 marks
The principle of representative government is founded on the premise that people elect
members of parliament who act on behalf of, or represent, the beliefs, attitudes and
perspectives of their constituents (i.e. the voters within their electorate). The
commonwealth bicameral structure aims to allow Australian citizens to indirectly influence
the government and in turn create a system of government that is representative of the
people’s values. Regular elections ensure that elected governments respond to the
voters’ wishes or they risk re-election at the next poll.
A government comprising members elected by the citizens is considered a key feature of
a democracy and is supported by the two-house structure of the Commonwealth
parliament. The two houses allow voters from electoral divisions throughout Australia to
be represented in the lower house (House of Representatives) while each state and
territory also has representative in the upper house (Senate). The House of
Representatives comprises up to 150 members who act on behalf of different
geographical area throughout Australia. Similarly, the Senate provides for a total of 76
senators elected by the people from the States and territories. Each state elects 12
senators, while each territory selects two members to represent their interests. This
allows the Senate to, in theory, act as a ‘state’s house’ to reflect the views and values of
the states and check that Bills potentially do not disadvantage the interests of any
particular state (especially the smaller populated states).
A bicameral structure, which allows the power of law-making to be shared, also
safeguards against a single house taking excessive measures and implementing
legislation that does not reflect (or represent) the views of the broader community. Both
houses of parliament must agree to the identical wording of a Bill before it can be
presented for Royal Assent. Again this demonstrates the principal of representation.
The Australian Constitution also serves to protect the democratic rights of citizens
through principle of representative government. Sections 7 and 24 require that members
of both houses of the parliament be 'directly chosen by the people'. This structural
protection seeks to ensure that members of parliament reflect the people’s values and
make laws supported by the majority. If this does not occur, members risk not being re-
elected.
Note: The sample response contains more ways that the bicameral structure upholds the
principle of representative government than would be required, catering for a variety of
responses.

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Marking guide:
1 mark for stating the meaning of representative government
1–3 marks for making connections between the bicameral structure of parliament and its
ability to achieve representative government. (There needs to be direct links between
features of the structure and representation to score well.)

Question 4 (5 marks)

a. Identify one section in the Australian Constitution (other than sections 7 and 24)
that serves to protect an express right of Australian people. 1 mark
Section 80 explicitly states that defendants have the right to trial by jury when ‘tried on
indictment’ for Commonwealth offences.
Note: A range of responses can be provided for this section as the Australian
Constitution protects five express rights of the Australian people. For example, section
116 expressly protects the right of freedom of religion to the extent that the
Commonwealth parliament cannot make laws that establish a state religion, impose any
religious observance or prohibit religious practice. Section 51 (xxxi) also protects the
rights of the Australian people to receive ‘just terms’ when property is acquired by the
Commonwealth.
Marking guide:
1 mark for correctly naming a section

b. Discuss how the express right identified in your answer to part a. can act as a
check on the law-making powers of the parliament. 4 marks
An express right is a right that is entrenched in the wording of the Australian Constitution
and can only be removed or altered by changing the Constitution through the process of a
referendum. There are five express rights stated in the Constitution that directly protect
the rights of the Australian people including the right to a trial by jury for an indictable
Commonwealth offence. While express rights usually act as a check on the law-making
powers of parliament, there are some circumstances in which their ability to achieve this
is diminished. For example, while the express right to a trial by jury when tried on
indictment for a Commonwealth offence serves as an extremely effective check against
an abuse of power from government, there are some limitations that restrict its potential
to completely safeguard defendants.
The guaranteed right to trial by jury for indictable Commonwealth offences ensures that
the verdict in such cases will be determined by the defendant’s peers and not by
government officials, which acts as a check against an abuse of power by government.
Defendants in these cases are further protected as all decisions made must be
unanimous and not based on a majority verdict.
However, the safeguard against an abuse by government has some limitations that
reduce the scope of protection offered by the right to trial by jury. First, the right is limited
to Commonwealth offences and only for a trial by indictment. This means the right, in
theory, does not apply to defendants charged with state offences. Additionally, because
the Commonwealth determines whether crimes are categorised as indictable or
summary, parliament could avoid the protection, which potentially undermines the right.
Nevertheless, the expressed right as written into the constitution cannot be removed
other than by referendum (s128). This offers citizens a high degree of certainty and
protection when tried for an indictable Commonwealth offence.

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Marking guide:
1 mark for providing the meaning of the term ‘express rights’
2 marks for making a judgement related to the question
1 mark for providing a conclusion

Question 5 (4 marks)

a. Identify the change made by the Commonwealth parliament to the Commonwealth

Electoral Act 1918 (Cwlth) in 2006 that prompted Vickie Roach to challenge the law.
1 mark
In 2006, the Commonwealth parliament amended the Commonwealth Electoral Act 1918
(Cwlth) and passed the Electoral and Referendum Amendment (Electoral Integrity and
Other Measures) Act 2006 (Cwlth) to ban all prisoners from voting in federal elections.
Marking guide:
1 mark for naming the change to the Act that banned all prisoners from voting

b. Explain why the change to the Commonwealth Electoral Act 1918 (Cwlth) in 2006
affected prisoners, and in particular, the Indigenous vote. 3 marks
Prior to the amendment, only prisoners serving more than three years were banned from
voting. It was argued by the Human Rights Commission and others (Vickie Lee Roach)
that the disqualification of prisoners (20 000) in both pieces of legislation (Act and
amendment) negatively impacted on the representative nature of government and
therefore breached sections 7 and 24 of the Australian Constitution. This made the law
unconstitutional and therefore invalid. The right to vote is critical in a representative
government and this was taken away via the legislation. It was further argued by Ms
Roach that Indigenous voters were more significantly disadvantaged due to the high
number of Indigenous prisoners incarcerated.
Marking guide:
1 mark for describing the situation prior to the change
2 marks for making connections between the changes and voting rights

Question 6 (10 marks)

Evaluate the extent to which the High Court interpretations are significant in acting as a
check on Commonwealth parliament law-making powers. In your response you must
make reference to the Roach case provided in the stimulus material.
The High Court is the only court in Australia with the ability to interpret the Australian
Constitution in order to resolve constitutional disputes that arise between individuals and the
state and Commonwealth parliaments. In its role as the interpreter of the Australian
Constitution, the High Court has, over the years, provided an important check on the law-
making powers of the Commonwealth parliament, although its power to act as a checking
mechanism is reliant on relevant cases being brought before the court for resolution.
One of the main ways the High Court’s interpretation can act as a check the Commonwealth
parliament is by resolving disputes in which an aggrieved party believes the Commonwealth has
passed legislation that infringes the rights of the Australian people, as protected by the
Australian Constitution. This might involve disputes where an aggrieved party believes a
constitutionally protected parliamentary principle or express right has been infringed.

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One example of a case that demonstrates the important role the High Court plays in protecting
the constitution is the Roach case. This case focused on the parliamentary principle of
representative government, and it highlighted some factors that also restricted the High Court
from effectively checking the laws introduced by federal parliament
In the Roach case, the High Court was required to interpret whether two Commonwealth Acts
had breached sections 7 and 24 of the Australian Constitution and therefore should be declared
constitutionally invalid. The Acts were the Commonwealth’s Electoral and Referendum
Amendment (Electoral Integrity and Other Measures) Act 2006 (Cwlth), which banned all
convicted and sentenced prisoners from voting in elections, and the Electoral and Referendum
Amendment (Prisoner Voting and Other Measures) Act 2004 (Cwlth), which banned all
prisoners who were serving sentences longer than three years from voting.
More specifically, the High Court was required to interpret the meaning of the constitutional
requirement, as outlined in sections 7 and 24, that parliament be chosen ‘directly by the people’.
In its ruling the court held that as sections 7 and 24 protected the right of the people to choose
the members of parliament, the Commonwealth could not legislate to ban certain prisoners from
voting in elections. The High Court broadly interpreted the phrase ‘directly by the people’ so to
uphold the principle of representative government and declared the Electoral and Referendum
Amendment (Electoral Integrity and Other Measures) Act 2006 (Cwlth) invalid. In doing so the
High Court protected the democratic right of some prisoners (that is, those serving a term of
imprisonment less than three years) to not be banned from voting in federal elections.
Interestingly, with regard to the validity of the Electoral Act 2004 banning prisoners serving more
than three years to vote, the High Court ruled the legislation valid. Here the High Court
demonstrated its power to check and set parameters on the federal parliament law-making
ability. In reviewing the law, the court accepted the federal government’s argument, that in
addition to those of unsound mind and those convicted of treason, prisoners serving more than
three years for serious indictable offences were not representative ‘of the people’ and could be
disqualified from voting by federal parliament. This resulted in approximately 10 000 prisoners
being denied the right to vote in the 2007 federal election. The High Court’s decisions
demonstrated the extent and significance of its role when interpreting the Australian Constitution
and how it acts as a check on the law-making power of parliament.
However, while the Roach case provided the High Court with the opportunity to check and give
judgement on the validity of federal law-making, the High Court cannot offer any protection
unless a number of factors are present. First, a case must be initiated by a person with
standing, (locus standi). This means that the plaintiff must be directly involved in, or impacted
by, the law. Second, the costs of a challenge are significant—litigation on novel questions of law
are unpredictable and time-consuming—so plaintiffs need significant financial and personal
commitment to undertake the action. Finally, a majority of judges must agree with the proposed
set of legal arguments supporting the challenge. The Roach case demonstrates the presence of
many of these factors. Vickie Lee Roach met the locus standi criterion. Ms Roach was serving
up to six-year imprisonment and therefore was directly affected by the original legislation
banning prisoners serving more than three years and the amendment banning all prisoners from
voting.
The Human Rights Commission provided pro bono legal representation to Ms Roach, enabling
her as a prisoner, to avoid the costly legal fees associated with a challenge to the High Court.
Furthermore, as an Indigenous woman she also had a personal commitment to fight for
Indigenous prisoners who were disproportionately affected because of the high incarceration
rates of Indigenous people.

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Another factor that can affect the likelihood of a successful High Court challenge and the ability
of the High Court to act as a check on parliament is the composition of the High Court judges
who determine the case and their preparedness to act in an activist manner. In the Roach case,
the judges were willing to take a more activist approach and more broadly interpret the meaning
of ‘chosen by the people’ to uphold the principle of representative government in Roach’s
favour.
The combination of these factors resulted in the Roach case highlighting how the High Court
can protect rights and prevent abuses of power, while also clarifying the powers of parliament
by placing restrictions on the use of those powers. Roach was one of many cases initiated since
federation involving constitutional interpretation. In the many and varied cases that have
appeared before the High Court, it has performed a significant role in checking the law-making
parameters of the federal parliament by ensuring that parliament does not make laws that
exceed its powers or infringe constitutionally protected rights and principles and declaring any
such legislation invalid. However, High Court justices might be conservative in their
interpretation of the Australian Constitution and be reluctant to make change. The limitations on
initiating High Court challenge also means that legislation that may have been made in excess
of the parliament’s law-making power or in breach of constitutionally protected right, will remain
valid until challenged by the courts. This is reliant on an aggrieved party having the standing,
knowledge, money and commitment to pursue a legal challenge.
Marking guide (global):
1–2 marks for synthesising evidence provided in the stimulus material to support explanations
and points of view
1–3 marks for applying legal knowledge accurately and appropriately
1–2 marks for using accurately legal terms and principles
1–3 marks for discussing clearly, coherently and rationally the significance of the High Court’s
ability to act as a check on law-making

Question 7 (6 marks)

a. Define the term ‘double majority’ and provide one example of a successful
referendum. 2 marks
The term ‘double majority’ means that a referendum can only be successful if the majority
of electors nationally vote ‘yes’ and if at least the voters in four of the six states also say
‘yes’. A successful referendum was the 1967 referendum that allowed the Commonwealth
to create special laws for the benefit of Aboriginal people and include them in the census.
Marking guide:
1 mark for providing the meaning of the term ‘double majority’
1 mark for naming a successful referendum

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b. Discuss how well the double majority requirement acts as a check on the
legislative power of the Commonwealth parliament. 4 marks
The requirement for a referendum to be passed by a double majority of voters ensures
that any proposal for constitutional change requires a high degree of public support. This
prevents the government of the day from being able to change the Australian Constitution
benefit its own agenda, such as changing the Australian Constitution to increase the
government’s specific law-making power.
The double majority requirement also protects the states from having their law-making
power unfairly decreased by any proposal that will change the division of law-making
power because a proposal must have the support of the majority of people in the majority
of the states, namely at least four of the 6 states. On the other hand, it can be difficult to
satisfy the double majority provision, regarding the states’ provision and a referendum
result might appear undemocratic if a majority of Australians voted in favour of it, but the
majority of voters in the majority of states did not.
Similarly, while a double majority support for constitutional change also requires a
compulsory public vote, which can help ensure the community as a whole supports the
proposal and not just a small section who bother to vote, voters might vote against a
proposal for change because they do not understand the proposal, are apathetic or
disinterested in the issue or are conservative and do not wish to change the ‘status quo’.
Marking guide:
2 marks for providing the benefits of the double majority requirement as a check on
legislative power
2 marks for providing the limitations of the double majority requirement as a check on
legislative power

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ASSESSMENT TASK 1B DETAILS

Name of task

Written report

Unit/area of study

Unit 4: The People and the Law

Area of Study 1: ‘The people and the Australian Constitution’

Outcome 1

‘Discuss the significance of High Court cases involving the interpretation of the Australian
Constitution and evaluate the ways in which the Australian Constitution acts as a check on
parliament in law-making.’
Source: VCE Legal Studies Study Design (2018–2022), VCAA, page 21, © VCAA, reproduced by
permission

Key knowledge and key skills

This assessment task addresses the following (selected) key knowledge and key skills outlined
in Area of Study 1 in Unit 4. Note that some key knowledge points and key skills are not covered
in this task.

Key knowledge

 the roles of the Crown and the Houses of Parliament (Victorian and Commonwealth) in
law-making
 the means by which the Australian Constitution acts as a check on parliament in law-
making, including:
 the bicameral structure of the Commonwealth parliament
 the separation of the legislature, executive and judicial powers
 the express protection of rights
 the role of the High Court in interpreting the Australian Constitution
 the requirement for a double majority in a referendum
 the significance of one High Court case interpreting sections 7 and 24 of the Australian
Constitution.
Key skills

 define and use legal terminology

 discuss, interpret and analyse legal principles and information
 evaluate the ways in which the Australian Constitution acts as a check on parliament in
law-making
 analyse the ability of the Australian people to protect or change the Australian
Constitution
 discuss the significance of High Court cases involving the interpretation of the Australian
Constitution
 synthesise and apply legal principles to actual scenarios.

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Source: VCE Legal Studies Study Design (2018–2022), VCAA, pages 21–22, © VCAA, reproduced by
permission

vcta.asn.au | published June 2019 | © VCTA and Carol Rowland

COMPAK | LEGAL STUDIES UNIT 4

INSTRUCTIONS AND CONDITIONS

Write your report in this question and answer book.

Conditions: An A4 page of study notes is allowed

Time allowed: 80 minutes (plus 10 minutes reading time)

Marks allocated: 40 marks

Assessment criteria: Your report will be assessed using the following criteria:
 accuracy and appropriateness of legal knowledge
 accurate use of key legal terms and principles
 clarity, coherence and rationality of explanations and points of view
 use of relevant examples to support explanations and points of view.

REPORT

You are to write a report in response to following topic. Content guidelines are provided to help
structure your report. In addition, some stimulus material is provided, which can be used to
assist in writing your report. Note: You have a choice as to whether you will use this stimulus
material or draw on another case with which you are familiar.

Report topic

The Australian Constitution: Its relationship with the Australian people, Houses of Parliament
and the High Court.

Report guidelines

Your report should cover the following areas, and you can use these points as headings or
organisers:
 an introduction to the role of the Australian Constitution
 a description of the roles of the Crown and Houses of Parliament in law-making
 a discussion of how the bicameral structure of parliament, as outlined in the Australian
Constitution, can act as a check on parliament.
 a discussion of how the people can protect or change the Australian Constitution
 an evaluation of the significance of a High Court case involving the interpretation of
sections 7 and 24, which provides that our representatives must be ‘directly chosen by
the people’. Your response should examine two benefits and two limitations associated
with the High Court’s role in resolving the case. Note: Use a case with which you are
familiar or draw on the stimulus material on page 22 relating to Roach v. Electoral
Commissioner (2007) HCA 43.
 a conclusion—how effective has the Australian Constitution been in establishing law-
making powers and protecting the Australian people through its role on checking on
parliament in law-making.

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COMPAK | LEGAL STUDIES UNIT 4

Stimulus material

You can use the following case to assist in writing your evaluation of the significance of a High
Court case regarding the interpretation of sections 7 and 24 of the Australian Constitution.
Alternatively, you can a case with which you are familiar.

Vickie Lee Roach v. Electoral Commissioner and Commonwealth of Australia

In 2007, Vickie Lee Roach, an Indigenous woman who was serving a six-year term of
imprisonment in a Victorian prison, challenged the validity of the 2006 amendments to the
Electoral Act 1918 (Cwlth). These amendments, stated in the Electoral and Referendum
Amendment (Electoral Integrity and Other Measures) Act 2006 (Cwlth), disqualified all prisoners
from voting in federal elections. In June 2006, there were 20 209 prisoners in Australia, 24% of
whom were Indigenous. Prior to this amendment, in the period 2004 to 2006, only prisoners who
were serving sentences of three years or longer were disqualified from voting.
Roach, with the support of a strong legal team, including pro bono (no charge) representation by
the Human Rights Commission, filed an application to the High Court to gain its interpretation of
sections 7 and 24 of the Australian Constitution. These sections require that members of
parliament are ‘directly chosen by the people’.
The High Court, by a 4–2 majority, held that the amendment (of banning all prisoners from
voting) was inconsistent with the principles of representative government so it was
unconstitutional. However, the High Court deemed that the provisions in the Electoral Act of
prohibiting prisoners serving sentences of three years or longer from voting, was valid.
References: Vickie Lee Roach v. Electoral Commissioner and Commonwealth of Australia, High Court of
Australia, 26 September 2007, http://www.hcourt.gov.au/assets/publications/judgment-summaries/2007/
hca43-2007-09-26.pdf and Roach v. Electoral Commission, High Court of Australia, 26 September 2007,
http://www.austlii.edu.au/au/journals/AUIndigLawRw/2007/71.pdf

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REPORT

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Teacher notes
The alternative assessment task formats provide an opportunity for students to demonstrate
aspects of Outcome 1 in different ways. Teachers might like to use one format as a practice
assessment task or students could be given the choice to select their preferred format during
the assessment period. If student choice is permitted, consider how to manage the differences
in the suggested times for each task type. If students are confident with writing reports, the
same suggested times could apply to the report and structured question options. If this is not the
case and the report option is selected, it is suggested that the task is conducted over two
separate time periods. This warrants the question and answer book being collected by the
teacher in the intervening period to assist with the authentication process.
It should be noted that on the advice of the Victorian Curriculum and Assessment Authority
(VCAA), tasks available in the public domain should be sufficiently modified to minimise
authentication concerns. For example, in the structured questions option, teachers could
change the stimulus material relating to Questions 5 and 6 to reflect a case studied in class.
This would warrant subsequent modifications to these questions to align with the specific details
of the case. See ‘Authentication advice’ on page 29.

Assessment

The structured question option has a marking guide and suggested answers for each question.
For the written report option, while there are no suggested answers, students have been
provided with assessment criteria and it is suggested that these be used to assess their
responses or teachers can use the performance descriptors published by the VCAA. Note:
Teachers could treat the suggested answers to the structured questions as a guide to the
knowledge and skills that would be demonstrated in the written report.
It should be noted that if teachers use the VCAA performance descriptors
(https://www.vcaa.vic.edu.au/curriculum/vce/vce-study-designs/legalstudies/advice-for-
teachers/Pages/performancedescriptors.aspx) for Outcome 1, there will be some descriptors
that are not relevant because the written report does not address the entire outcome.
An alternative assessment option for the written report is provided in Table 1 on page 29. It is an
assessment rubric that includes criteria, and requires the teacher to make a judgement of
student evidence, according to each criterion. Note: Each criterion does not have to be
weighted equally so teachers should determine the value of each one and insert the specific
value for each of the categories of ‘very low’, ‘low’, ‘medium’, ‘high’ and ‘very high’. For example,
if the first criterion was considered to be worth 15 marks (out of 40 marks), then the allocation of
marks could be 1–2 (very low). 3–5 (low), 6–9 (medium), 10–12 (high) and 13–15 (very high).
This could contrast with the second criterion, which a teacher might consider to be worth 5
marks, so values ranging from 1 to 5 would be entered in the row ‘mark value’.

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COMPAK | LEGAL STUDIES UNIT 4

TABLE 1: ASSESSMENT RUBRIC

Criteria Very low Low Medium High Very high

Accurate and appropriate use of legal

knowledge
Mark value ( marks) ( marks) ( marks) ( marks) ( marks)
Accurate use of legal terms
Mark value ( marks) ( marks) ( marks) ( marks) ( marks)
Clarity, coherence and
rationality of explanations and
points of view
Mark value ( marks) ( marks) ( marks) ( marks) ( marks)
Use of relevant examples to support
explanations and points of view
Mark value ( marks) ( marks) ( marks) ( marks) ( marks)
TEACHER COMMENT COMMENT:
TOTAL (40 MARKS) GRADE:

Copyright notice: Compak is a membership service of the Victorian Commercial Teachers Association
(VCTA). Copyright of Compak material is vested in VCTA and individual contributors, subject to the
Copyright Act 1968 (Cwlth).

VCTA gives permission for the reproduction or alteration of Compak material if used by VCTA members
for non-commercial, educational (classroom) purposes. For purposes other than classroom use,
permission to reproduce, alter or transmit Compak material should be sought from VCTA.

Compak articles must not be placed on publicly accessible online spaces (including those accessed by
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Some Compak material includes links to external (third-party) websites. These are provided for information
purposes only and VCTA does not exercise any editorial control over these sites or endorse any of the
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Every effort has been made to trace the copyright holders of all third-party content where this is included in
Compak articles.

© VCTA and individual contributors

Disclaimer: This resource has been written by the author (Carol Rowland) for use with students of VCE
Legal Studies. This does not imply that it has been endorsed by the Victorian Curriculum and Assessment
Authority (VCAA). The current VCE Legal Studies Study Design (2018–2022) can be accessed directly via
the VCAA website. VCE is a registered trademark of VCAA. While every care is taken, VCTA accepts no
responsibility for the accuracy of information or advice contained in Compak. Teachers are advised to
preview and evaluate all Compak classroom resources before using them or distributing them to students.

Authentication advice

'Where commercially produced tasks are being used for School-based Assessment, the
school should ensure the tasks meet the requirements of the study design and that they have
been sufficiently modified to enable student work to be authenticated.’ 

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COMPAK | LEGAL STUDIES UNIT 4

—VCE and VCAL Administrative Handbook 2019, VCAA, 2019, page 74

https://www.vcaa.vic.edu.au/Documents/handbook/2019/adhb19.pdf

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