Constitutional Law LAWS50028 - 2019 Sem 2 - SO + RG PDF

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Subject Outline and Reading Guide

Constitutional Law LAWS50028 Credit points:

12.5pts

Availability:

Semester 2, 2019

Class contact hours: 48 hours

Total time commitment: 144 hours

Timetable: Please refer to your student timetable for your class schedule for this subject: https://my.unimelb.edu.au/ Subject Coordinator: Associate Professor Glenn Patmore [email protected] Teaching Staff: Tim Goodwin [email protected]

Associate Professor William Partlett [email protected]

Dr Scott Stephenson [email protected]

THIS COMPILATION OF STUDENT READING MATERIAL HAS BEEN MADE IN ACCORDANCE WITH THE PROVISIONS OF PART VB OF THE COPYRIGHT ACT FOR THE TEACHING PURPOSES OF THE UNIVERSITY. FOR USE ONLY BY THE STUDENTS OF THE UNIVERSITY OF MELBOURNE ENROLLED IN THE SUBJECT: Constitutional Law – LAWS50028

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ACKNOWLEDGEMENT Melbourne Law School acknowledges the Wurundjeri Peoples of the Kulin Nations as the Traditional Owners of the land on which the law school stands. We pay our respects to their Elders both past and present.

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Subject Overview This subject continues the analysis of the laws establishing and regulating the Australian state that began in LAWS50024 Principles of Public Law and that will continue in LAWS50032 Administrative Law. It is structured around the fundamental principles of Australian public law – constitutionalism, representative democracy, the separation of powers, federalism and individual rights – and uses them to examine more closely the institutions of Australian government – the courts, legislatures and the executive. (The examination of the executive branch and the principles of responsible government are taken further in Administrative Law). Topics covered include: • Introduction to Australian constitutions and to constitutional law; • Representative Democracy: o Composition, powers and procedures of Australian Parliaments and their constituent chambers; and o Political rights and freedoms. • Separation of powers: o Legislature and Executive; and o Judicial power. • Australian Federalism: o Key features of the Australian federation; o Inconsistency of Commonwealth and State law; o The federal division of legislative power, including the scope of state legislative power and, in relation to federal legislative power, types of power, interpretation, characterisation, incidental power, selected heads of power for detailed study; o The federal division of executive power; o The federal division of judicial power including the concept of federal jurisdiction; o Governmental and inter-governmental immunities: statutory interpretation and constitutional principles; and o Economic union: finance, trade and free movement in the Australian federal syst em. • Express rights and freedoms.

Learning Outcomes On completion of this subject, students should: • Have developed an understanding of: o The structure and operation of the Australian Commonwealth and state constitutions, in theory and practice; o Core provisions of the Australian Commonwealth and state constitutions, constitutional decisions and constitutional principles; o Constitutional skills and techniques, including constitutional interpretation and characterisation; o The relevance of constitutional law to how governments address public policy issues and to how Commonwealth legislation is drafted and interpreted; o The impact of constitutional law on the individual and different groups within society; and

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o The main aspects of practice and procedure in constitutional litigation. Be able to draw on this understanding to: o Describe and critically analyse the fundamental principles of constitutional law; o Identify relevant constitutional law decisions and state and critically analyse the legal principles that emerge from them; o Critically analyse the relationship between these legal principles and the fundamental principles of constitutional law; o Apply constitutional law principles to new fact situations; and o Develop arguments as to what legal principles should be applied when the relevant constitutional provisions or decisions are unclear or in conflict. Present these descriptions, analyses and applications of principles in the form of written and oral arguments that are appropriately structured, developed, supported and referenced; and Have enhanced general cognitive skills in relation to reading and comprehending legal materials; logical analysis and reasoning; legal research and writing; application of legal principles to factual situations; identifying relevant factual information; identifying and considering options to resolve legal problems; drawing on the knowledge of other disciplines to understand and resolve legal issues.

Generic Skills On completion of the subject, students should have developed the following generic skills: • Attitudes towards knowledge that include valuing truth, openness to new ideas and ethics associated with knowledge creation and usage; • The capacity for close reading and analysis of a range of sources; • The capacity for critical and independent thought and reflection; • The capacity to solve problems, including through the collection and evaluation of information; • The capacity to communicate, both orally and in writing; • The capacity to plan and manage time; • The capacity to participate as a member of a team; and • Intercultural sensitivity and understanding. In addition, on completion of the subject, students should have developed the following skills specific to the discipline of law: • Case reading and analysis, including an ability to: o Read complex constitutional cases, including unedited cases in the law reports; o Extract important features from judgments; o Reconcile judgments; o Evaluate the development of legal principles; and o Apply legal principles arising from case law to new situations. • Statutory reading, interpretation and analysis, including an ability to: o Extract important features from statutes (and in particular constitutions); o Use, interpret and apply statutory (and in particular constitutional) provisions to new situations; and o Apply the distinct principles of constitutional interpretation. • Legal analysis and problem-solving, including an ability to: o Critically analyse legal rules with reference to fundamental principles;

Constitutional Law LAWS50028 – Semester 2, 2019 © Melbourne Law School

Page 5 of 51 Identify and analyse constitutional issues arising in complex fact situations; Apply constitutional principles and provisions to unfamiliar fact situations; and o Develop and present an appropriately structured and supported legal argument. Legal research skills, including an ability to: o Find primary historical sources relevant to constitution-making and amendment; o Find case law; o Find statutes and constitutions; o Find secondary sources; and o Identify the most relevant and up-to-date primary and secondary sources and justify the research process. Legal writing skills, including an ability to: o Use case law as part of legal analysis; o Use statutes and constitutions as part of legal analysis; o Use secondary sources as part of legal analysis; o Identify and summarise legal principles; o Identify and summarise fundamental principles; o Use proper referencing and citation; and o Present an appropriately structured and supported complex legal argument in written and oral form. Oral communication skills in participating in classroom problem solving and discussion; and An ability to work in groups to solve problems and critically analyse legal materials in a classroom setting. o o

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Subject Materials Prescribed text: In addition to these subject materials, students are required to purchase the following textbook for this subject: • Winterton's Australian Federal Constitutional Law (4th Edition, 2017) The required readings highlighted in the reading guide with (Supplemetary Materials) have been provided to you in hardcopy or electronically via the LMS.

Recommended Reading For additional assistance with the subject of this course we recommend: • Peter Hanks, Frances Gordon and Graeme Hill, Constitutional Law in Australia (4th ed, 2018) • • •

Cheryl Saunders, The Constitution of Australia: A Contextual Analysis (2011) Cheryl Saunders and Adrienne Stone (eds), The Oxford Handbook of the Australian Constitution (2018) James Stellios, Zines’ The High Court and the Constitution (6th ed, 2015)

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Assessment Information Assessment task 1 Weighting Collaborative Work Statement

Syndicate and individual interim assessment 20% Code 5: This assessment task is a collaborative task. Students are permitted to discuss the topic and generate ideas with their co-counsel, but should not discuss or share their work with people outside their group.

AND Assessment task 2 Weighting Word limit code

Collaborative Work Statement

8 hour take-home examination (4,000 words) Students must obtain a minimun mark of 50% for the examination to pass the subject. 80% Code 1: Any word limit will be enforced strictly and any excess will incur a marking penalty. Penalty: Any penalty incurred will be equal to 5% of the total available marks for the piece of work for each 10% or part thereof by which the number of words exceeds the applicable word limit. For example, for an assessment task with a limit of 2,500 words, a penalty of 5% of the total available marks will be imposed for every 250 words or part thereof by which the submission exceeds 2500 words where Code 1 is applied. Code 3: Take-home examinations: Students are not permitted to discuss the examination with any other person until the examination is over and their answer has been submitted. This means that students are not permitted to discuss the exam in either general or specific terms or to share ideas about the examination or responses to questions. This does not prevent students contacting the Academic Support Office (ASO) if they believe there is an error or problem with the examination question, or where there is a technical or other issue with submission.

Further information regarding assessments is available on the JD LMS Community, including: • Assignment due date for the above assessments, and where applicable release date, via the Assessment Schedule. • Assignment coversheet. • Submission guideline policy (including formatting requirements). • Late submission penalties policy. • Plagiarism policy. •

Feedback policy.

Assessment Criteria Information regarding assessment criteria will be provided with the assessment task.

Learning Outcomes for the Melbourne JD The knowledge and skills learned in this subject will also contribute to achievement of the Learning Outcomes for the Melbourne JD, which are outlined here: https://handbook.unimelb.edu.au/view/current/MC-JURISD

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My JD Students page http://law.unimelb.edu.au/students/jd/studies The My JD Studies page collates crucial information relevant to current JD students, including: • Course Planning and Enrolments • Seeking Further Advice • Timetabling and Class Registration • Extensions, Special Consideration and ongoing support • Legal Academic Skills Centre • Professional Behaviour Guidelines • What to Expect of Your Lecturers at Melbourne Law School

University Policies and Procedures Like any other faculty of the University, Melbourne Law School is bound by University of Melbourne policies and procedures. Key policies for students, which provide links to the relevant procedures and related policies, include: Academic Integrity: https://academicintegrity.unimelb.edu.au/ Academic Progress Review Policy (MPF1291): https://policy.unimelb.edu.au/MPF1291 Assessment and Results Policy (MPF1326): http://policy.unimelb.edu.au/MPF1326 Courses, Subjects, Awards and Programs Policy (MPF1327): https://policy.unimelb.edu.au/MPF1327 Enrolment and Timetabling Policy (MPF1294): http://policy.unimelb.edu.au/MPF1294 Student Complaints and Grievances Policy (MPF1066): https://policy.unimelb.edu.au/MPF1066

Students Recording Classes for Personal Use Students are not permitted to record classes on their personal devices. Access to recordings may be obtained by students who are registered for special consideration or have missed a substantial number of classes due to medical/personal emergency or religious commitments in accordance with the Melbourne Law School class recording policy. Any recording made available to a student may only be used by the student for his or her personal study purposes.

Advice to Students About the Importance of Writing Your Own Notes Developing your own notes based on your reading and classes is an important part of your learning. You should rely on the materials provided to you by your lecturers for the subject, both in classes and through reading that is assigned to prepare you for classes and assessment tasks. Students who rely on notes other than their own deny themselves the opportunity to develop their learning through the preparation of their own notes, and potentially put themselves at risk of losing marks due to reliance on notes that are outdated or wrong.

Studying Constitutional Law You may find the study of constitutional law, like most worthwhile things, to be challenging. You will be asked to read long and complex cases and to wrestle with difficult concepts. You will find the study of constitutional law easier if you adopt some simple practices. •

Reading before class:

Constitutional Law LAWS50028 – Semester 2, 2019 © Melbourne Law School

Page 8 of 51 First of all, we strongly recommend reading before class. Your knowledge of this complex subject will be much more secure if you have grappled with it yourself. Reading before class will help you to develop a vital professional skill — the ability to understand complex material without guidance. You will also need to read before class to make the most of class time. The classes in Constitutional Law will be structured as seminars that explore the material on the assumption that you have read it already. •

Regular revision: Second, we recommend revising the material after class. Ideally, you should be creating a summary of the course as you go but realistically you may not have time to do this every week. Do as much as you can as you go. At the very least, aim to spend some time revising the most difficult parts of the material after class. One useful way to revise is to prepare written answers to the ‘review’ problems included in this reading guide.

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Participate in class: Third, you will be expected to participate in class discussion . You may, therefore, be called upon to answer questions and participate even when you have not raised your hand. Why class participation? Participating in class is important for two reasons. First, class participation enriches your experience in the classroom. It assists your instructors in identifying difficult issues which need more explanation and common misunderstandings that require clarification. Even more importantly, it allows you to contribute your insights to the discussion. Your classmates (and your instructors!) will learn from your contributions and for this reason, if nothing else, it is essential that class participation is not limited to an enthusiastic few. Second, class participation develops important legal skills. As lawyers you will need to be confident speaking (and in particular presenting your ideas) and answering questions in front of your professional peers. Managing class participation: We recognise, of course, that you are developing these skills and some of you will find it more difficult than others to engage in class discussion. Further, while we will expect most of you to have read for class most of the time, we do recognise that in the real world circumstances occasionally prevent you from preparing as fully as you would like to. For this reason, we aim to make the classroom a supportive environment for participation and ask that you also treat your colleagues with respect.

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CLASS PLAN Class 1 Class 2 Class 3 Class 4 Class 5 Class 6 Class 7 Class 8 Class 9 Class 10 Class 11 Class 12 Class 13 Class 14 Class 15 Class 16 Class 17 Class 18 Class 19 Class 20 Class 21 Class 22 Class 23

Introduction to the Commonwealth Constitution Interpretation of the Heads of Federal Legislative Power External Affairs Power External Affairs Power (Cont.) External Affairs Power (Cont.) Corporations Power: An Introduction Corporations Power (Cont.): Workchoices Case Inconsistency of State and Federal Legislation Limits on Legislative Power from Federalism: Intergovernmental Immunities Limits on Legislative Power from Federalism: Intergovernmental Immunities (Cont.) Defence Power The Source, Nature and Scope of Commonwealth Executive Power The ‘Inherent’ Commonwealth Executive Power Introduction to Chapter III and the Boilermakers’ Doctrine The First Limb of the Boilermakers’ Doctrine: The Judicial Power of the Commonwealth Can Be Vested Only in Chapter III Courts The Second Limb of the Boilermakers’ Doctrine: Chapter III Courts Can Exercise Only the Judicial Power of the Commonwealth State Courts and the Separation of Powers Introduction to Federalism and Economic Union and Federal Financial Relations: The Grants Power Commonwealth Power to Make Laws with Respect to Taxation State Power to Impose Taxation: The Prohibition on the Imposition of ‘Excise Duties’ Freedom of Interstate Trade Introduction to Representation and Rights: Freedom of Political Communication Implication from Representative and Responsible Government: Voting Rights and Political Donations Overflow and Revision

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READING GUIDE Note that 1 class = 2 teaching hours ___________________________________________________________________________ PART 1 – INTRODUCTION ___________________________________________________________________________ CLASS 1 – INTRODUCTION TO THE COMMONWEALTH CONSTITUTION This class introduces students to the Constitution of the Commonwealth of Australia. The recommended reading will give you an overview of the Commonwealth Constitution and its history. The required reading is a 1998 decision of the High Court which concerned the extent of Commonwealth power under section 51(xxvi). This case will introduce you to some of the key questions that arise when judges interpret the Constitution. The judgments illustrate a variety of judicial approaches. Required reading •

Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 2 (Supplementary Materials)

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You should also review the copy of the Constitution found in the Supplementary Materials with special reference to sections 51(xxvi)

For discussion: •

Summarise the reasoning of each judge in Kartinyeri v Commonwealth. What differences in approach to constitutional decision-making can you identify?

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In the light of Kartinyeri, should section 51(xxvi) of the Constitution be amended?

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Consider this proposal made by the Prime Minister’s Expert Panel on Constitutional Recognition of Indigenous Peoples, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitutio...