To introduce myself, I'm Jing a VCE English, Legal Studies and Economics tutor on Learnmate. I graduated with an ATAR of 99.4, including a 48 in English, before studying a Bachelor of Commerce and Laws at Monash University. I am currently undertaking a Masters of Teaching and have a strong desire to ensure my students achieve academic excellence and find a lifelong love of learning!
In this blog, my aim is to help guide students how to master short response questions in VCE Legal Studies, by focussing on a particular question from the 2023 exam related to the separation of powers. The goal is to help VCE students clearly understand and effectively apply this approach in exams to help empower students to maximise their marks when it counts!
2023 VCE Legal Studies Exam Paper
Here's the question from the 2023 VCE Legal Studies Exam that we will use to break down how to answer short response questions:
| "Discuss the extent to which the separation of powers acts as a check on the Commonwealth Parliament in law-making (6 marks)" |
For full marks, students first need to aim for a succinct explanation of how the separation of powers acts as a check on the legislature (parliament) in law-making. You will need to explain how the judiciary and/or the executive can check parliament, for instance:
- by stating that the Judiciary can declare a law made by Parliament as invalid if Parliament was acting ultra vires;
- by stating that the Executive and not the Parliament has responsibility for deciding and introducing new legislation and government departments within the Executive have responsibility for the administration of new legislation.
To obtain full marks, however, you will need to do more than merely define the separation of powers and the focus of the response should be on how the separation of powers checks the legislature. Reminder, you will need to be very careful with your terminology as the 'division of powers' between the Commonwealth and State Parliaments is not the same as the 'separation of powers' between the Parliament, Executive, and the Judiciary.
Now let's breakdown how to approach answering this question.
Step 1: Formulating an Opinion
The separation of powers refers to three independent and separate powers of government to avoid the concentration of power in a single, legal body and thus upholds the rule of law. The rule of law is the principle that all in society are bound by the rule of law, must obey the law, and that laws should be fair and clear allowing people to obey them. The three powers are: the executive power, the legislative power, and the judicial power. The Executive power is the power to administer laws pursuant to Section 61 of the Australian Constitution, the legislative power is the law-making power pursuant to Section 1 of the Australian Constitution and the judicial power is the power of courts and tribunals to enforce the law and settle disputes pursuant to Section 71 of the Australian Constitution.
Step 2: Distinguishing the Executive and Legislature
Executive power is the power to administer the laws and manage the government's policies and procedures. At a Commonwealth level, this power is 'vested in the Queen', and 'exercisable by the Governor-General as the Queen's representative' under Chapter II of the Australian Constitution and specifically section 61 of the Australian Constitution. In practice, the executive power is carried out by the Federal Cabinet i.e. Prime Minister, senior ministers, and government departments (and at state level, the State Cabinets i.e. Premiers, senior ministers, and government departments) who decide upon legislative proposals for introduction in the Commonwealth Parliament. Legislative power is the law-making power of the Commonwealth parliament under Chapter I of the Australian Constitution and specifically section 1 of the Australian Constitution states that the legislative power of the Commonwealth shall be vested 'in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives'. Thus, legislative power, the power to debate and approve legislative proposals, is exercised by representatives in the lower and upper houses of Parliament.
Step 3: Case Law
Ronald Williams challenged the Commonwealth Government’s power to fund a chaplaincy service that was running in his children’s government primary school in Queensland. The Commonwealth Government had entered into a funding agreement with Scripture Union Queensland to provide chaplaincy services. French CJ in the High Court found that s 61 does not empower the Commonwealth, in the absence of statutory authority, to contract for or undertake the challenged expenditure on chaplaincy services in the Darling Heights State School'. Immediately following the High Court’s decision, the Commonwealth parliament passed legislation, the Financial Framework Legislation Amendment Act (No. 3) 2012 (Cth), to allow the chaplaincy program and other similar programs to be funded by the Commonwealth. Williams successfully challenged the Act's constitutional validity and funding arrangements with the High Court declaring that the legislative provisions were invalid in relation to the school chaplaincy program because it was not made pursuant to a Commonwealth law-making power under Section 51 of the Australian Constitution.
Step 4: Detailed Response to the Exam Question
To a considerable extent, the separation of powers acts as a check on the Commonwealth Parliament in law-making by allocating law-making powers to three separate bodies: the Executive, the Legislature, and the Judiciary. The executive power is 'vested in the Queen and is exercisable by the Governor-General as the Queen's representative' however in practice, exercised by the Cabinet or the Prime Minister and Senior Ministers. The Cabinet decides legislative proposals introduced into the House of Representatives as bills. The Executive holds a majority of elected representatives in the House of Representatives and thus in practice the Executive and Legislature may appear similar. The judicial power is exercised by impartial judges who may declare the executive or parliament to have acted ultra vires. For example, the High Court in Williams v Commonwealth (No 1) declared the Executive to have acted beyond the scope of Section 61 of the Australian Constitution and in Williams v Commonwealth (No 2) the provisions of Commonwealth legislation outside the limits of the Commonwealth Parliament's powers under Section 51 and thus, invalid. Notwithstanding, judges are elected by the Executive.
Conclusion
In sum, mastering short answer questions in VCE Legal Studies necessitates a deep understanding of both fundamental VCE Legal Studies principles (such as the separation of powers in this example) but also in how to structure a response to obtain full marks. By methodically breaking down exam questions and applying a structured approach to your responses, you can effectively demonstrate how this principle acts as a pivotal check on the Commonwealth Parliament's law-making capabilities. Remember, it's not just about recounting what the principle is from the question (ie. the separation of powers in this example), but critically analysing its impact as well (ie. on the legislative process and its role in maintaining the balance and integrity of governance). Through careful study, memorisation and application of these concepts, supported by examples from landmark cases such as Williams v Commonwealth (No 1 & 2), you'll be well-equipped to articulate insightful and comprehensive short answers that stand out to obtain full marks. Keep these strategies in mind as you prepare for your exams, and continue to refine your legal reasoning and analytical skills to excel in VCE Legal Studies.
This blog is the first in a series dedicated to uncovering the essential skills and strategies necessary to succeed this year in VCE Legal Studies.Stay tuned for future blogs in this series as we continue to dive deeper into this subject, aiming to equip you with a comprehensive toolkit for success.
Need a little extra support or a confidence boost in VCE Legal Studies? Explore more expert tips and resources on Learnmate or connect with former top-performing VCE Legal Studies student tutors and qualified teachers to start working towards achieving your potential. Share this guide with your peers to ensure you all succeed today!
This blog was written by Jing L, a VCE Legal Studies, Economics and English Tutor on Learnmate. Jing is enthusiastic about making a difference with her students and enjoys tutoring while completing her Masters of Teaching. She graduated with a 99.4 ATAR, and has received a number of academic awards during her time at school and Monash University, including academic excellence awards for History and Biology, the Award for Consistent Excellence for Microeconomics and Macroeconomics at Monash, and was placed on the Dean's Commendation List for 2011 in the Faculty of Business and Economics.
You can view her profile and, subject to her availability, request Jing as your tutor here.
