Legal Studies 2021 HSC exam pack

Students should:

• read the question carefully to ensure that they do not miss important components of the question
• have a clear understanding of key words in the question and recognise the intent of the question and its requirements
• use the first page of the answer booklet for an extended response to develop a plan to assist in the logical sequencing of information
• engage with what the question is asking rather than presenting a pre-prepared response
• relate to the question throughout the response rather than just at the beginning
• sustain their judgements, where appropriate, throughout the response with a clear connection to the question
• communicate using relevant legal terms and concepts to support their response
• refer to relevant examples such as legislation, cases, media, international instruments and documents
• present a sustained, logical and cohesive response that addresses the question
• review their response to ensure that it addresses the question requirements.

Question 21

In better responses, students were able to:

• provide a clear definition of human rights including the use of the relevant characteristics such as inherent, inalienable, and universal.

Areas for students to improve include:

• avoiding the use of general statements, for example, ‘human rights are given to us because we are human’.

Question 22

In better responses, students were able to:

• clearly demonstrate how environmental rights are recognised through domestic or international mechanisms. This included legal and/or non-legal measures
• include some examples of the above to support their explanation such as the Kyoto Protocol (international), The Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (domestic) or to global initiatives such as the United Nations Climate Change Conference 2021 or the work of Non-Government Organisations, for example, Greenpeace.

Areas for students to improve include:

• avoiding reference to broad issues and/or making general statements about the environment, for example, ‘climate change’.

Question 23

In better responses, students were able to:

• demonstrate a clear understanding of the relationship between state sovereignty and human rights
• recognise both positive and negative relationships between state sovereignty and human rights
• integrate their example to illustrate how state sovereignty and human rights are interconnected
• incorporate at least one example to illustrate the relationship between human rights and state sovereignty. Some examples include Australia (Human Trafficking/Refugees), North Korea (Treaty on the Non-Proliferation of Nuclear Weapons), USA (Right to life).

Areas for students to improve include:

• expanding on the example/s used to ensure they demonstrate the relationship between state sovereignty and human rights
• ensuring the example used is relevant and supports the description
• moving beyond general statements to answer the question
• using relevant terms to support a thorough understanding of the relationship between state sovereignty and human rights.

Question 24

In better responses, students were able to:

• demonstrate a thorough understanding of a broad range of relevant Australian legal responses including legislation, the constitution and common law decisions
• provide succinct and well-supported arguments either for and/or against effective Australian legal responses using relevant examples
• recognise the importance of broader themes and issues that address the effectiveness of Australian legal responses, for example, the ratification of international law and the implications of state sovereignty
• integrate a variety of legal responses to support their arguments, such as, the influence of express and implied rights in the Constitution, for example, Dietrich v The Queen 1992; the enforcement of domestic law through statutory bodies, for example, Australian Human Rights Commission; and the ratification of the Refugee Convention 1951 (UN) through the Migration Act 1958 (Cth).

Areas for students to improve include:

• providing a discussion on the effectiveness with arguments for and/or against rather than providing overall judgement statements
• moving beyond providing general information or a summary of domestic human rights law
• avoiding narrative responses on contemporary human rights issues
• focusing on legal responses as opposed to non-legal responses
• using relevant terms to support an informed and thorough understanding of domestic legal responses.

Question 25

In better responses, students were able to:

• demonstrate a clear understanding of achieving justice through both criminal processes and institutions
• provide a determination on the ability of the legal system to punish offenders rather than prevent crime, or alternatively, assess the capacity of the legal system to prevent crime
• refer to aspects of criminal processes and institutions, such as crime prevention measures, restorative justice methods, sentencing and post-sentencing considerations
• make a clear assessment supported by relevant legislation, cases, media, international instruments, and documents such as statistical evidence
• demonstrate how factors such as recidivism, retribution or rehabilitation prospects provide a measure of the achievement of justice for victims, offenders, and society.

Areas for students to improve include:

• ensuring the response focuses on the relevant areas of the syllabus which are connected to punishment, crime prevention, criminal processes, and institutions
• choosing paragraph ideas and areas of content that allow in-depth exploration of punishment and prevention in the context of the criminal justice system
• writing with sustained connections to justice for relevant parties.

Question 26(a)

In better responses, students were able to:

• accurately identify and provide explicit details regarding the role of courts and tribunals such as the Federal Court and NSW Civil and Administrative Tribunal (NCAT)
• effectively make a judgement about the processes involved for consumers engaging with courts and tribunals, for example, exploring how accessibility is or isn’t achieved in the Federal Court or NCAT
• explore how statutory bodies such as the Australian Competition and Consumer Commission (ACCC) act on behalf of consumers and engage with courts and tribunals to achieve justice for consumers. Better responses often did this using a case
• clearly justify arguments to demonstrate the extent to which justice is achieved, for example, explaining the benefits of the ACCC or class actions in taking cases to court to achieve justice for multiple consumers.

Areas for students to improve include:

• writing responses that focus explicitly on courts AND tribunals, as opposed to general descriptions of cases or statutory bodies such as the ACCC
• providing clear and consistent judgements about the extent to which courts and tribunals operate to achieve justice for consumers and linking this to ideas such as enforcement, consumer protection, access, cost and whether case outcomes reflect societal values
• exploring the interrelationship between the courts and statutory bodies on the achievement of justice for consumers, rather than providing general descriptions of cases involving the ACCC, The Australian Securities and Investments Commission (ASIC) or NSW Fair Trading.

Question 26(b)

In the better responses, students were able to:

• make an explicit assessment on the validity of the statement, using this to sustain their judgements throughout the response
• focus on specific legal measures that protect consumers, for example, statutory bodies such as ACCC and ASIC and legislation such as The Spam Act 2003 (Cth) and The Competition and Consumer Act 2010 (Cth)
• explore the complexities of the law in both responding to change and protecting consumers in different content areas of consumer law
• integrate legal examples, particularly cases, to demonstrate an understanding of the responses to change and how protection for consumers was achieved (or not achieved) as a result.

Areas for students to improve:

• addressing all elements of the question including the concept of change, consumer protection, the failure or success of legal measures and responsiveness of the law
• clearly identifying changes that have occurred and how legal measures have responded to that change, rather than explaining or describing a case and providing a generalised link to change
• exploring relevant consumer concepts to demonstrate an understanding of the changing need for consumer protection to which the law must respond, for example, misleading and deceptive advertising; inadequacy of legal remedies such as fines; product safety; e-commerce; spam; scams; credit and buy now, pay later schemes; and payday predatory lending.

Question 27(a)

In better responses students were able to:

• clearly identify and show considerable understanding of courts such as the International Court of Justice (ICJ) and the Land and Environment Court and conferences such as various Conference of the Parties (COP)
• explicitly acknowledge that instruments come out of the conference processes
• make logical and qualified judgements of the extent to which courts and conferences protect the global environment. More sophisticated responses integrated this through the application of aspects such enforceability, responsiveness, and ability to meet society’s needs
• integrate contemporary examples throughout the response to support an informed judgement.

Areas for students to improve:

• avoiding falling into the ‘narrative trap’ where the response tells a story and does not provide a supported argument
• being able to make a judgement about both courts and conferences, not just one
• referencing both international and domestic courts and conferences
• integrating relevant and contemporary examples, specifically cases and media references. While most responses showed an understanding of legislation, international instruments and documents, many lacked the integration of case law and media.

Question 27(b)

In better responses students were able to:

• identify and show considerable understanding of legal measures, specifically courts, conferences, legislation, and the United Nations at both a domestic and international level; with reference to why they were needed for global environmental protection
• integrate a range of legal measures to address the question, for example, the International Court of Justice, the Land and Environment Court, Rio Declaration of Environment and Development, Kyoto Protocol, The Paris Agreement, Glasgow Climate Change Conference and the Environmental Protection and Biodiversity Conservation Act 1999 (Cth)
• make a sustained judgement that integrated the statement and relevant examples, especially cases, throughout the response.

Areas for students to improve:

• referring to the statement throughout the response, rather than only in the introduction and conclusion
• providing a balanced and informed judgement
• applying relevant and contemporary media examples to make a judgement of value
• focusing on legal measures to address the question. Many responses referenced relevant non-legal measures, for example, non-government organisations, however did not use these examples to demonstrate how some legal measures fail to respond to change.

Question 28(a)

In better responses, students were able to:

• analyse how specific court processes and dispute resolution mechanisms may achieve justice by applying relevant legal terms, concepts and examples
• highlight differences in the extent to which courts and dispute resolution methods achieve justice
• develop a well-reasoned argument addressing the need for dispute resolution within family law alongside the use of the family court system to achieve justice
• develop a well-structured and carefully reasoned argument that recognises the significance of the problems being addressed.

Areas for students to improve include:

• providing analysis of specific examples of dispute resolution processes, such as Family Dispute Resolution, rather than a general assessment of the common steps in alternative dispute resolution, such as mediation, conciliation, arbitration
• exploring and defining the concept of justice based on evidence rather than assuming a commonly accepted definition
• engaging with the extent to which justice has been achieved for family members such as children, partners or parents.

Question 28(b)

In better responses, students were able to:

• meaningfully assess the statement by addressing the ways in which specific legal measures respond to change to protect family members
• clearly define the notion of ‘family members’ with reference to a range of relevant examples such as legislation, cases, media, international instruments and statistics and explain how they have provided specific protection for families
• develop a well-structured response that makes consistent links to all aspects of the question.

Areas for students to improve include:

• developing a single, cohesive argument that is supported through a range of evidence and the statement
• applying relevant areas of the syllabus to the question
• including reference to the way in which legal measures have or have not protected family members
• incorporating a range of evidence to support their arguments.

Question 29(a)

In better responses, students were able to:

• make clear, informed judgements about the extent to which courts, including domestic courts like the Supreme Court of Canada, regional courts like the Inter-American Court of Human Rights and international courts such as the International Court of Justice were effective in their methods in achieving justice for Indigenous Peoples
• respond regarding the effectiveness of various United Nations documents and organs in achieving justice for Indigenous Peoples, for example, the United Nations Declaration on the Rights of Indigenous Peoples, International Labour Organization Convention 169 and the United Nations Permanent Forum on Indigenous Issues
• decide on the difficulties in achieving justice because of state sovereignty and political will.

Areas for students to improve include:

• writing precisely about how international legal documents, such as the United Nations Declaration on the Rights of Indigenous Peoples, impact on Indigenous Peoples in domestic contexts
• writing with clarity about what the achievement of justice for Indigenous peoples means with reference to criteria such as land rights or the right to practise culture
• supporting judgements by integrating evidence that relates to the experiences of a range of Indigenous peoples from different parts of the world.

Question 29(b)

In better responses, students were able to:

• demonstrate extensive knowledge of the law in relation to Indigenous peoples, as demonstrated by references to a wide range of legal measures including court decisions, such as, Timber Creek (Australia), statutes such as the Finnmark Act (Norway) as well as international law documents such as the United Nations Declaration on the Rights of Indigenous Peoples
• link their knowledge about Indigenous peoples to the loss of specific rights. These responses went beyond suggesting that the rights of Indigenous peoples had been lost globally. Rather, these responses were able to articulate that loss in terms of specific rights including rights to land, natural resource rights, intellectual property rights and the right to practise culture
• demonstrate a sophisticated understanding of contemporary issues facing Indigenous peoples globally by referring to examples from a range of jurisdictions including Canada, Brazil, New Zealand and Sweden.

Areas for students to improve include:

• being familiar with a range of international case studies and examples that draw from experiences beyond those of Aboriginal and Torres Strait Islander peoples
• being precise in terms of which rights of Indigenous peoples had been lost or upheld across different jurisdictions because of factors such as state sovereignty and political will
• drawing clear connections between unresponsive legal processes and the loss of rights.

Question 30(a)

In better responses students were able to:

• examine detailed features of the operation of courts and tribunals, relating to the achievement of justice for the seekers of shelter, including but not limited to, purchasers, tenants, residents of social aged care, retirement villages, residential communities, strata and social housing
• examine the legal basis of any action by courts and tribunals that may achieve or fail to achieve justice for the seeker of shelter
• focus their response on people seeking shelter.

Areas for students to improve:

• considering courts separately from tribunals and demonstrating an understanding of their differing roles in relation to those seeking shelter
• providing clear and consistent judgements on the extent to which these bodies achieve justice
• providing extensive examples using legislation, case law, documents, statistics and/or media to support judgements
• ensuring there is not an emphasis on those providing shelter as the question specifically asks about those seeking shelter.

Question 30(b)

In better responses students were able to:

• consider a variety of shelter contexts where legal measures had responded to and/or failed to respond to the provision of shelter, integrating reference to the stimulus
• demonstrate a detailed understanding of the legal measures
• use detailed and appropriate legislation, case law, documents and/or media reports to support an informed judgement.

Areas for students to improve:

• focusing on explicit legal measures relevant to the provision of shelter
• considering a broad range of shelter situations where legal measures have or have not responded to change such as purchasing, leasing, strata by-laws and aged care
• using detailed and appropriate legislation, cases, documents, statistics and/or media reports to support an informed judgement
• avoiding extensive consideration of non-legal measures that do not add value to the response.

Question 31(a)

In better responses students were able to:

• demonstrate an extensive understanding of how the workplace is regulated through courts and tribunals within both state and federal frameworks
• draw on a range of courts and tribunals which respond to workplace conflict such as the Federal Circuit Court, Supreme Court, Fair Work Commission, Industrial Relations Commission, NSW Civil and Administrative Tribunal and Australian Human Rights Commission
• demonstrate a clear understanding of the jurisdiction for responding to disputes such as the Fair Work Commission’s application of the National Employment Standards, the Federal Circuit Court’s use of injunctions and penalties or the Australian Human Rights Commission’s investigation of discrimination breaches
• make informed conclusions about whether legal processes, including conciliation, mediation, hearing and appeal, achieve justice by exploring issues of equity, fairness and accessibility.

Areas for students to improve:

• supporting their judgements using examples from both courts and tribunals, though these do not need to be presented equally
• distinguishing the features of tribunals using examples such as conciliation, the Fair Work Ombudsman and comparing these to courts, such as, civil remedies, penalties and lawyer representation
• integrating clear examples and support, such as the Fair Work Commission’s role in assessing whether the Better Off Overall Test is met in enterprise agreements
• using a range of perspectives and interpretations to determine the extent to which justice is achieved for various parties in the workplace, for example, while courts have powers to provide enforceable rulings, there are issues relating to accessibility such as long wait times and cost. Conversely, tribunals have limited power compared to courts, for example, inability to award costs against the losing party, but accessibility is improved due to their informal and more cost-effective nature.

Question 31(b)

In better responses students were able to:

• provide deep knowledge as well as consistent judgement of the ways that legal measures respond to change through legislation, dispute mechanisms and enforcement processes
• recognise a range of legal instruments drawing on issues relevant to both state and federal frameworks, acknowledging the role of international law
• demonstrate why there is a need for legal protection in the workplace, illustrating contemporary influences such as COVID-19, labour standards set in international law, technological advances impacting workplaces, the ‘gig economy’ and changing community attitudes regarding the extent that rights should be balanced between the employer and the employee, for example, parental leave
• draw on clear and appropriate examples, such as the Fair Work Commission’s responsiveness to change by amending Award such as domestic violence leave and providing pandemic protections; legislation responding to vulnerable workers, safety, slavery and discrimination.

Areas for students to improve:

• directly answering all parts of the question, for example, responding explicitly to the stimulus statement and integrating it throughout the response consistently
• using terms which exemplify workplace protection concepts, for example, vicarious liability, adverse action, indirect discrimination, summary dismissal
• avoiding writing narratives, general statements, or excessive descriptions, noting that the focus of the question is an assessment of a statement about legal measures in the workplace often failing to respond to change rather than on a historical or case recount
• showing a range of arguments, for example, areas where change has been less responsive in recognising rights as well as areas where tangible progress is evident, pointing to future directions, contemporary issues, or international principles.

Question 32(a)

In better responses, students were able to:

• demonstrate a broad understanding of courts and tribunals, which could include The International Court of Justice, The International Criminal Court, The Permanent Court of Arbitration, The International Criminal Tribunal for the former Yugoslavia, The International Criminal Tribunal for Rwanda, The Extraordinary Chambers in the Courts of Cambodia, The Special Court for Sierra Leone and various domestic courts
• refer to a variety of relevant supporting examples as evidence to demonstrate the influence of courts and tribunals on promoting and maintaining world order, including establishing instruments such as United Nations Security Council Resolutions and The Rome Statute, together with legislation, case law and media
• include specific situations or conflicts where courts and tribunals have been instrumental in attempting to promote and maintain world order such as Rwanda, former Yugoslavia and The South China Sea
• incorporate judgements of degree, whether implicitly or explicitly, to address the extent to which courts and tribunals promote and maintain world order, highlighting the significance of state sovereignty on compliance and enforceability.

Areas for students to improve include:

• demonstrating knowledge of specific courts and tribunals that contribute to the promotion and maintenance of world order
• clearly integrating appropriate case examples relevant to courts and tribunals referred to within a response, not confusing these with the organs of the United Nations
• specifically addressing the extent to which courts and tribunals promote and maintain world order.

Question 32(b)

In better responses, students were able to:

• demonstrate a broad understanding of the use of legal measures to respond to change to resolve conflict between nation states
• clearly reference the stimulus statement in making judgements regarding the failure or success of legal measures to respond to change in resolving conflict between nation states and how often or otherwise this response to change may occur
• identify reasons why legal measures may fail to respond to change including the role of state sovereignty in allowing non-compliance and hindering enforceability
• illustrate the failure and/or success of legal measures in responding to change to resolve conflict between nation states by using a variety of supporting case examples, including conflicts or potential conflicts such as Ukraine, Syria, Yemen, North Korea, Sudan, South China Sea, Rwanda, former Yugoslavia, Timor-Leste, and other instances requiring responses from the international community
• refer to issues that demonstrate the difficulty legal measures have in responding to change to resolve conflict between nation states, such as nuclear weapons, chemical weapons, acts of aggression and non-compliance
• provide detailed reference to legal measures used to respond to change, for example, the United Nations, UN Security Council, UN General Assembly, UN Charter, the Responsibility to Protect, treaties, conventions, court judgements and legislation.

Areas for students to improve include:

• making explicit judgements referencing the stimulus statement on the failure or success of legal measures in responding to change to resolve conflict between nation states
• avoiding the use of human rights examples which are not appropriate or have not been linked to resolving conflict between nation states.