Band 6 HSC Legal Studies responses

How does NESA define a BAND 6 response?

A band 6 response...

• analyses, synthesises and interprets information to evaluate the effectiveness of the domestic and international legal system in addressing issues
• demonstrates extensive knowledge and understanding of the operation of the legal system and the processes involved in law reform
• synthesises and analyses legal information from a variety of sources including relevant legislation, cases, media, international instruments and documents to support arguments in a domestic and international context
• communicates coherent arguments on contemporary issues from differing perspectives and interpretations
• communicates an argument using relevant legal concepts and terminology

Below are some sample band 6 responses from past HSC students. Unlike the sample HSC answers, these responses are done by year 12 students under timed conditions and are a more accurate representation of what is expected of students in exams.

Question 1. (2 marks)

Identify TWO non-government organisations that promote human rights.

Amnesty International and Red Cross

Question 2. (2 marks)

Define the right to self-determination.

The right to self-determination is the collective right of a specific ethnic group to govern and dictate their own lives as opposed to being governed by a higher authority.

Question 3. (5 marks)

Outline how ONE human right has been legally recognised.

Universal suffrage was first recognised through the theory of democracy in that the citizens of a nation state should be able to have a say in their government. It first developed in the UK with the "representation of the People Act" however it only applied to anglo-saxon males. This piece of legislation was also copied by Australia and New Zealand. Due to the changing expectations of society, women suffragettes and indigenous people began to seek equality and demanded the right to vote. New Zealand became the first country to allow Women to vote and in 1967 in Australia subsequent to the referendum Indigenous Australian's gained equality by having suffrage. The next year the same happened for women. The UDHR article 21 states "everyone has the right to vote," and Australia has legally recognised this through its constitution.

Question 4. (6 marks)

With reference to ONE contemporary human rights issue, explain the role of state sovereignty in enforcing human rights.

With respect to the issue of child soldiers, state sovereignty has been a huge boundary. Despite the 2005 "R2P" policy, many leaders employing child soldiers can use state sovereignty as a shield from the ICC established in 2002 by the Rome Statute. Thomas Lubanga Pyilo was detained in 2006 by the ICC but only after Congo turned him over. Additionally, at present he has still not been sentenced. None the less, the use of soldiers under 15 is an offence under customary international law, so both the ICC and countries claiming universal jurisdiction can prosecute it. However there is the further issue, some states like Australia, who have signed the optional protocol, recruit 17-year olds child soldiers, making prosecution seem somewhat hypocritical.

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Question 5. (15 marks)

Explain the tension between community interests and individual rights and freedoms within the criminal justice system.

The tensions between the community's interests and individual rights in the criminal justice system is not better illustrated than the constantly challenging desire for "justice" and "retribution" and the rights of the accused. The offender's right to a fair trial is often seen to conflict with the desires of the victim, their family and community.

Two prime examples where the justice system's emphasis on the rights of the offender have conflicted with community interests are the cases of Dietrich V the Queen and R V Skaf. In these cases subsequent law reform enhancing the rights of the offenders prevailed and delayed the offenders conviction which seemed imminent. The saying "justice delayed is justice denied" is undoubtably the response of the community when two commonly viewed 'menaces to society' were granted better rights and chances to be dismissed.

In the case of Dietrich V the Queen, Dietrich appealed his conviction on the grounds of inadequate legal representation in comparison to the prosecution. As it was concluded that this denied his right to a fair trial a retrial was issued and the right to adequate legal representation was subsequently granted to all. As seen in the swift conviction in Dietrich's retrial, it can be viewed that the delaying of justice was unnecessary and expensive, characteristics the community would not wish to exist in the criminal justice system. However, as our legal system places greater emphasis on the rights of an individual to a fair trial, community interests are forever going to exist in tension with the offenders rights.

As seen in the case of R v Skaf, an unapologetic gang rapist had both a retrial and a lowering of his sentence after an injustice in his trial for conviction. Due to jury misconduct a retrial was issued and the jury Amendment Act 2005 prevailed to meet the rights of an offender to a fair trial. Once again, the swift conviction of Skaf could render the retrial unnecessary and expensive, creating yet more tension between the community interests that Skaf be convicted under any means and for a maximum sentence. A maximum sentence of 50 years did originally ensue, however as this was deemed to be excessive, it was lessened to almost half, again creating tension within the community. However, the judicial system's emphasis on the defendant's rights to fair and just rulings can be seen to unfortunately prevail.

In contrast to the rights of the offender, the rights of the victim as an individual can be seen to paradoxically conflict with the interests of community as seen in the Skaf case. Since the Crimes Amendment (criminal proceedings evidence) Act awarded the use of transcript evidence in sexual assault retrials, the community's desire for justice was seen to be somewhat challenged. The use of transcript as opposed to physical victim testimony was viewed by some to lesson the impact of crimes on the jury and therefore lesson the chances for conviction in a retrial. However, research found this rarely to present an overwhelming problem and instead benefited by prevented the victim from having to testify multiple times. Hence, the rights of the victim drastically outweighed the tensions of the community's desire for justice.

Another controversial issue in the matter of individual rights and freedoms and the sometimes opposing community values can be seen in the areas of plea bargaining and victim impact statements.

The offenders right and freedom to be awarded a lesser sentence for the plea of guilt and/or cooperation with authority would undoubtably conflict with both the interests of the victim as well as the supporting community. The awarding of lesser sentences to cooperative defendants would without a doubt inhibit the complete retribution the community is to expect for the defendant's crimes. The responsive argument however is that the legal system is made more efficient from this and as a result would the save cost and time when seeking justice.

Lastly, the use of victim impact statements can be viewed to conflict with both the rights of the defendant and the community. As it is used exclusively in the sentencing process, committees could oppose its exclusion from the conviction trial. However it is obvious that this would inhibit the individuals right to a fair trial based on fact, not emotion, and therefor this prevails. On the other hand, one could argue the conflicts of defendants rights in this process as the degree to which sentencing is swayed by these statements, which would vary by different degrees in the case of different trials. Therefor conflict and tension occurs between community and defendant occurs due to victim impact statements.

As seen the prioritised rights of the defendant will always without fail conflict with the community's desire for justice and retribution and the justice system has a long way to go before finding a suitable balance between the rights of the two parties.

Want more examples?

Check out NESA's Legal Studies Stage 6 HSC resource pack to access more sample responses and example essays.

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