Unit Plan LAW2104 - Unit Outline PDF

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Edith Cowan University School of Business and Law

Unit Plan

Unit Code: LAW2104 Unit Title: Constitutional Law I Semester: One Year: 2018

School of Business and Law | Telephone: 134328 | Calls outside Australia (61 8) 6304 0000 Email [email protected] | Web: www.ecu.edu.au/schools/business-and-law/overview

School of Business and Law

Edith Cowan University School of Business and Law Telephone: 134328 International: (61 8) 6304 0000 Email: [email protected] Website: www.ecu.edu.au/schools/business-and-law/overview CRICOS IPC 00279B

LAW 2104 Constitutional Law I

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School of Business and Law LAW2104 Constitutional Law I Lecturer Name

Room no

Contact number/s

Email

Consultation times

Toby Nisbet

2.306A

6304 2643

[email protected]

TBA

Room no

Contact number/s

Email

Consultation times

Room no

Contact number/s

Email

Consultation times

Unit Coordinator Name As above

Tutor Name As above

Lecture Day

Time

Room No.

Time

Room No.

Tutorials Day

Other staff contacts Name

Role

Room no

Contact number

Email

Associate Professor Krishna Prasad

Associate Dean

JO2.321

6304 2217

[email protected]. au

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Learning Consultant Contact details Campus

Room no

Contact number

Email

Mount Lawley

ML 13.129/130

9307 6590 or 9307 6014

[email protected]

Joondalup

JO2.133/130

6304 2511 or 6304 5286

[email protected]

Resources Centre for Learning & Teaching Academic Skills Centre The Centre for Learning & Teaching Academic Skills Centre offers a range of services which will complement the discipline-specific knowledge you gain from this unit. These services include:    

Unit-integrated skills workshops Academic Skills workshops Assignment labs On-line support

You are strongly advised to access these services to assist in developing the academic and language skills required to succeed in this unit. A copy of the Workshops Timetable can be found on the Academic Skills Centre Blackboard site located under My Communities on Blackboard. The contact details for the Academic Skills Centre are listed above.

Academic Integrity The Academic Skills Centre Blackboard site has some useful resources to help you develop your skills in referencing and paraphrasing (and hence avoiding plagiarism). There is also information about how to use Turnitin.

Important note to students intending to practise law Academic misconduct (including, but not limited to dishonesty) is a factor that the Supreme Court of Western Australia (and other authorities around Australia) considers when deciding if a person can be admitted to the profession as a legal practitioner. If you apply for admission you have an obligation to disclose these matters. If you do not disclose the university can be required to provide this information.

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Introduction Welcome to Constitutional Law I (LAW2104) at Edith Cowan University, Joondalup campus. This unit plan is intended to provide you with a clear statement of the essential details of Constitutional Law I and how it will be taught and assessed, and your expected learning outcomes. A study guide for the unit is also available, covering lecture and tutorial topics. The unit is grounded in day to day political reality. You will commonly be referred to past and current political events. It is not, however, a study of politics. It is a study of Constitutional Law. From time to time, I ask you to consider some deep socio-political themes. Consider, for example, Donald Trump’s election victory in the context of some of his campaign promises: eg Building a wall between Mexico and the USA, which Mexico will pay for. What calamity would ensue if he pursued this promise? What checks and balances on his power are there? And how does that relate to the Australian position? The President is the executive of the USA. Who is our executive? How are they elected? And what checks and balances are there on our executive’s power? You can also consider Brexit – there was a recent Court battle where it was decided that an Act of Parliament was required for Britain to exit the European Union. The ‘prerogative’ powers of the Crown were not sufficient. This was a momentous decision in the history of British constitutional law. Britain doesn’t have a written and entrenched constitution like we do. Are you, like me, curious about how Britain’s Supreme Court came to its decision? [I say Britain but please note there are further interesting constitutional points surrounding the United Kingdom – Scotland, for example, seems to want to stay in the EU]. These are fascinating times. On the one hand, you have Donald Trump, making claims divisive enough to force Congress into action – and brash enough to cause a constitutional crisis (at this stage he seems to be abiding by relevant Court orders). On the other, you have Brexit. What have we got here at home? Loads of interesting things. We have had constitutional crises of our own, and we’ll have a bit of fun with some (admittedly unlikely) conspiracy theories involving the CIA… If you don’t like politics so much, you should consider the deeper themes of individual rights compared to governance of the masses. I suggest you read (or watch the movie) ‘1984’ by George Orwell. Also watch ‘Brazil’, a Terry Gilliam (of Monty Python fame) film. In each of these works,

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ordinary individuals are wholly consumed by organisations of unbridled power. The works will help you to grasp how fundamentally lucky we are to have our system of governance. They may help to raise your concerns about any erosion of the few protections we do have. In short, they raise respect for the rule of law. Respect and passion for the rule of law is something I hope you have already. If not, I hope this unit goes some way to instilling it in you. For interest and background, you could also watch Yes Minister (an old BBC comedy) and, The Hollow Men (an ABC show). The main focus of Constitutional Law I is the Commonwealth Constitution and aspects of the Constitution Act 1889 (WA) and Constitution Acts Amendment Act 1899 (WA). You will learn how Commonwealth and State governments are structured and limited by their constituting instruments. You will discover the significant impact that British imperial rule has had on Australia’s legal history. There’s a wonderfully dull debate out there about how to correctly cite the Commonwealth Constitution. For this unit, you can simply cite it as I have done here. Do not cite it as the Commonwealth of Australia Constitution Act. It is no mere Act of Parliament. It is a Constitution. I set only recommended (not required) reading for this unit. The majority of information you need for the major assignment can be gleaned from the written lecture material, which is also presented in verbal form. The major essay is a research exercise, where the text is only useful as an introduction to the topic.

Expectations of lecturers and students This unit is conducted in accordance with the Student Charter (available at: http://intranet.ecu.edu.au/student/mystudies/rules-policy/student-charter). Lecturers and students must all be mindful of common courtesies such as timely arrival to class, notification of absence, ensuring mobile phones are switched off,* and allowing each person the opportunity to contribute and to gain as much as possible from the unit. * I’m less fussy about this than other lecturers. Turn your mobiles off if you can remember. If not, turn them off as soon as they start ringing. If you are expecting a call you need to take in class, just let me know ahead of time. Otherwise mobile phones should be kept out of sight – if only to help everyone concentrate and engage. If you need to arrive late or leave early a couple of times, please don’t worry, just let me know.

Teaching and learning approach The teaching format consists of a 2 hour seminar and a tutorial.

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Seminars are interactive. Lively and respectful debate is a common feature of seminars. You should not hesitate to contact your lecturer to ask questions or to go over certain points in the seminar. We will try to factor in a number of short breaks to keep up our energy levels. You need to attend for the whole 3 hours. The lecture material is delivered by way of written lecture summaries, and those materials will also be presented verbally. You should try to read the written summary before the seminar so you can obtain the most from the unit. Sadly, too few students do this and I need to repeat the material verbally – that’s the way things are and they always have been. Nonetheless, it does represent a missed opportunity for a flipped classroom – which otherwise represents the best learning model available. Perhaps we will be able to compromise and have the occasional flipped classroom – we will negotiate that in class.

Revision to the unit based on student feedback This is a challenging unit. However, it is also an enthralling subject, and the challenges you will overcome will greatly advance your legal education, and, it is hoped, your education generally. Did you know there is no such thing as intelligence? This unit shows time and again that students who continue to work hard at foreign concepts succeed in changing their brain, creating new neural pathways, for the benefit of mankind. That last bit might be overstating it, but the rest is true. Based on past feedback, I have made many different changes to the unit. I have dropped the presentation this semester and I have replaced the exam with a major assignment. The latter I hope provides a means to understand the unit more fully. I won’t make the unit easier – that’s doing everyone a disservice. But I am always looking for ways to make the learning more fun and more accessible for more people. Your feedback in this regard is always most welcome.

Annotated reading list The following recommended text books are available for purchase from the Bookshop or are accessible via the Library. There are no prescribed readings. There will be plenty of reading necessary for the major paper; and some reading for the major problem question. Don’t buy all these texts. They are expensive! The first one or two on the list will suffice. You may be able to pick up Craven’s work relatively cheaply second hand. P Gerangelos et al, Winterton’s Australian Federal Constitutional Law: Commentary and Materials, (3rd edition, 2013, Thomson Reuters Lawbook Co). This text will provide you with a more detailed overview of the basic principles of constitutional law, together with helpful extracts from relevant cases and commentary. Keyzer et al, Principles of Australian Constitutional Law, (5th ed, 2017 LexisNexis Butterworths). This text will provide you with a useful overview of the key principles as well as providing problems at the end of each chapter. It is a great place to start but you must note that it is a student text. You cannot expect to do well (or necessarily pass) relying only on this text. Blackshield and Williams, Australian Constitutional Law and Theory, Federation Press. Some truly excellent thought provoking chapters, considering constitutional jurisprudence from different perspectives.

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Craven, Greg, Conversations with the Constitution: Not Just a Piece of Paper, UNSW Press, 2004. Riddled with humour and insight. Heavily and unhealthily biased toward the theory that the Constitution should be read in light of the intent of its framers. What do the literal approach to constitutional interpretation, Sydney and socialism have in common? Read Craven’s book to find out.

Other significant references and resources You must have access to and read key sections of the following. Fear not, they can readily be obtained from the relevant State and Commonwealth Law Publishers or from the online websites: The Commonwealth Constitution Australia Acts 1986 (UK and Cth) Constitution Act 1889 (WA) Constitution Acts Amendment Act 1899 (WA). The lecture and tutorial series will take you through the critical sections.

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Study Schedule This schedule provides a listing of the topics covered in this unit. Use the current semester calendar to track your progress against the actual dates. Date 2018 Week begins

Wk

26 Feb

1

5 Mar

2

12 Mar

3

Introduction –Parliamentary Sovereignty; Federalism; Responsible Government. The nature of the Constitution Sources of Constitutional Law Constitutional Decision making, interpretation, precedent and alteration

19 Mar

4

Parliaments; legislative power; right to vote, the Defence power Nationhood,

26 Mar

5

2 Apr

6

9 Apr

7

Topics

The Judiciary The Executive and a Tale of Two Dismissals Continues from Week 6

Mid semester break Limits to legislative powers: Extra23 Apr 8 territoriality (State and Commonwealth); Manner and Form (State) Limits to Legislative Powers: Manner 30 Apr 9 and Form (State) Rabies? Limits to State legislative power inferred from Chapter III CC 7 May 10

14 May

11

21 May

12

28 May

13

“Seven Crowns Divided” Legal relationships; Intergovernmental Immunities and prohibitions Federalism - Intergovernmental Immunities and prohibitions cont’d

Revision

LAW2104 Constitutional Law I

Reading (not required, unless stated) Wintertons Ch 1

Assessme nt

Lindell article (required) Wintertons Chapter 14 up to and including [14.660] Wintertons Chapter 6

Seminar – Tutorial exercise Introduction, meet and greet As above Sources of Constitutional Law Constitutional Decision Making The defence power Right to vote problem Q Independence of the judiciary

Wintertons Chapter 13 ____ ____

Wintertons Chapter 22 April Executive 2 up to and including major essay power 2.450 As above Extra-territorial power The rest of Manner and Wintertons Form Chapter 2 (How lucky can you get?) Wintertons Ch 12 Rabies?

As above

27 May major problem question

Federalism

Federalism

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Assessment information All written unit assessments, excluding those completed under supervised conditions, may, at the unit coordinators discretion, be extended to require an oral examination to clarify and support the written submission. The oral examination will normally be held in person with the Unit Coordinator but may be conducted by telephone or other means at the Unit Coordinator’s discretion. The oral examination should be conducted as soon as possible after the assessment but may be deferred if the student is unable to attend and can provide supporting evidence. The oral examination will be able to override the original assessment of the written submission. If a student fails to attend the oral examination it may result in an Academic Misconduct investigation.

Assessment details Assessment

Date (due)

Marks/Weighting

Tutorial / seminar / forum Participation

Ongoing

10

Research essay

22 April 2018 11.59pm

40

Major assignment

27 May 2018

50

Participation A total of 10% of the assessment is allocated to student work in the seminars. Remember, it is separate to your presentation mark. It will be assumed students have listened to the lectures and completed the readings in Hanks. The topics to be covered in each tutorial are set out in the Study Guide. Your contributions need to be meaningful and indicate a willingness to grapple with the subject matter, but they do not need to be correct. Don’t be shy about getting the answer ‘wrong’. Just get in there and have a crack! With work, every student should be able to receive a good grade for their contributions. Ongoing participation -- Expectations: Seminar assessment is not designed to be tough. Rather, it is designed to help you engage with the course throughout the semester, and revise on an ongoing basis. If you are engaged and are revising on an ongoing basis you will find you are able to complete the major assignment without having to first go back and learn the whole semester’s work.

LAW2104 Constitutional Law I

School of Business & Law All students (ON and OFF campus) are expected to provide 5 decent attempts at the tutorial questions, placed on the Blackboard forum space I will provide, over the course of semester. Not 5 at the end or 5 at the beginning, but throughout semester. Learning outcome/s and Graduate Attributes In keeping with the objectives of the unit, and within the scope of the tutorials, the purposes of participation are to:  Improve understanding of the material,  Enable demonstration of that understanding by appropriate legal analysis;  Improve your ability to communicate – especially verbal communication (on campus and in live tutorials); critical appraisal skills; the ability to generate ideas and critically discuss issues in a collegial atmosphere.  Improve your ability to work effectively in a team environment

Research essay 4,000 words all inclusive Topic: The Commonwealth Parliament created the Australian Military Court (‘the AMC’) in response to allegations of procedural unfairness in the military justice system. The AMC was innovative and was improving access to justice for military personnel, but the High Court struck down the legislation, declaring the AMC to be constitutionally invalid: see Lane v Morrison (2009) 239 CLR 230 (‘Lane’). On the basis of: historical problems with military justice in Australia; the High Court’s conception of judicial power in the military justice system; the creation of the AMC in response to the problems with military justice; the decision in Lane; and the subsequent changes to the Defence Force Discipline Act 1982 (Cth) (see especially Part VII); consider whether the High Court’s approach to judicial power has created ongoing impediments to achieving justice for Australia’s military personnel. You should support your answer by reference to High Court cases and peer reviewed academic writing. Other sources may also be cited, just be mindful that they need to sufficiently persuasive to support or advance your answer. 4,000 words is the maximum. 3,500 should be enough. Less than 3,000 should make you think hard about what else you might need to cover or expand upon. The word limit includes footnotes. LAW2104 Constitutional Law I

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School of Business & Law Submission information Weighting

This assignment accounts for 40% of the assessment in this unit.

Date/Week

22 Apri...