SCHOOL OF LAW
LAWS2150
FEDERAL CONSTITUTIONAL LAW
Undergraduate Core
Units of Credit: 6
Contact hours per week: 4
COURSE OUTLINE
SESSION 1 2012
Convenor: Theunis Roux
Convenor’s contact details: Room 218, Law School Building
Phone: 9385 3418
Email: t.roux@unsw.edu.au
CONTENTS
1.
Course Information
1.1
1.2
1.3
1.4
1.5
1.6
1.7
2.
Assessment
2.1
2.2
2.3
2.4
3.
Teaching Staff and Classes
The Relationship between Research and Teaching
Course Description
Aims
Expected Learning Outcomes
Learning Outcomes and Graduate Attributes
Teaching Rationale
Assessment Scheme
Assessment Criteria and Overall Grading
Assessment Timetable – Links to Learning Outcomes & GAs
Formal Matters
Course Schedule
3.1
3.2
3.3
Course Materials
Course Schedule
Guide to Reading
4.
Additional Resources for Students
5.
Continual Course Improvement
5.1
5.2
6.
CATEI Evaluation Policy
Course Evaluation and Quality Enhancement for this Course
Administrative Matters
Course Outline Appendices available at:
http://www.law.unsw.edu.au/sites/law.unsw.edu.au/files/docs/law_school_course_ou
tline_appendices.pdf
Appendix 1 Appendix 2 Appendix 3 Appendix 4 -
UNSW LAW SCHOOL GRADUATE ATTRIBUTES
FORMAL MATTERS RELATING TO ASSESSMENT
ACADEMIC MISCONDUCT AND PLAGIARISM
ADMINISTRATIVE MATTERS AND STUDENT SUPPORT
SERVICES
Notice on Distressing Course Material
Occupation Health and Safety
School of Law Office
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1.
COURSE INFORMATION
1.1
TEACHING STAFF and CLASSES
Teaching staff
Theunis Roux
Room
E-mail
Telephone
Consultation Times
Convenor
218, Law School Building, UNSW Kensington campus
t.roux@unsw.edu.au
9385 3418
By appointment
Theunis Roux joined the Law School in 2009 from South Africa where he had been the
Founding Director of the South African Institute for Advanced Constitutional, Public,
Human Rights and International Law (SAIFAC). Before that he was a Reader in Law at
the Centre for Applied Legal Studies, University of the Witwatersrand. From 2004-2008
he served as Secretary-General of the International Association of Constitutional Law.
His main research interest is the politics of judicial review in new democracies, focusing
on the South African Constitutional Court.
Lisa Burton
Telephone
+61 468 959 747
E-mail
l.burton@unsw.edu.au
Consultation Times by appointment
Lisa completed her Law/Arts (First Class Honours) degree at the University of Western
Australia in 2009, graduating as the top student in her Honours cohort. She then
practised as a solicitor with Blake Dawson, Perth. In 2010 Lisa travelled to the UK to
complete the Bachelor of Civil Law (a master's degree in law) at the University of
Oxford, and was awarded a First and the Comparative Public Law Prize. Lisa relocated
to Sydney in 2011 and taught Public Law at Macquarie University as well as working as
a research assistant on the ARC Laureate Project 'Anti-terror laws and the democratic
challenge' at UNSW. She continues to work on this project this year.
Paul Kildea
Room
367, Law School Building, UNSW Kensington campus
E-mail
p.kildea@unsw.edu.au
Telephone
9385 9652
Consultation Times by appointment
Paul Kildea is a Lecturer in the UNSW Faculty of Law, and the Director of the Federalism
and Referendums Projects at the Gilbert + Tobin Centre of Public Law. He holds
undergraduate law and history degrees, and a PhD in political science, from UNSW. His
recent work focuses on the constitutional status of intergovernmental relations, and
citizen participation in the process of constitutional reform in Australia. He is a coeditor of Tomorrow’s Federation: Reforming Australian Government (Federation Press,
2012), and has authored various journal articles and conference papers on federalism
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and constitutional reform. In addition to his academic research, Paul contributes
frequently to parliamentary inquiries and media debate on public law issues. Prior to
joining the Faculty of Law, Paul worked at the federal Attorney-General’s Department
and taught Australian politics at the Faculty of Arts and Social Sciences at UNSW.
Classes
Class
3524
3525
3526
3527
Day
Tues & Fri
Tues & Fri
Mon & Thurs
Mon & Thurs
Time
9 – 11
11 – 1
4–6
2–4
Room
Lecturer
G23
Kildea
Law 203
Kildea
Law 303/203
Burton
G02
Burton
Please note that you should double check that the timetable and the dates you have
nominated for teaching agree.
Blackboard
As a student in this program you will also have access to the Blackboard course page.
Blackboard is an online materials and support site designed to complement your
learning. Students are provided with personalised usernames (z plus your Student ID
number) and passwords (zPass) to log on to the site to access information and
resources specifically related to the courses in which they are enrolled.
Typically, a Blackboard site includes course outlines, course handouts and email
facilities. Students should ensure that they log into their Blackboard courses at least
once a week as it is where lecturers will provide information and materials to
supplement your studies.
UNSW Blackboard supports the following web browsers for Windows XP or VISTA:
· Internet Explorer (IE) version 7 or 8
· Firefox 3.0.x (must run version 3.0.3 and above)
UNSW Blackboard supports the following web browsers for Mac 10.4 or 10.5,
· Firefox 3.0.x (must run version 3.0.3 and above)
· Safari 2 or 3
Note: Mac OS 10.3 is not supported.
To log on to your Blackboard site, you will need to follow these steps:
1.
Go to the TELT gateway (http://telt.unsw.edu.au/) and click the link to log into
Blackboard.
2.
Enter your Student ID and your zPass to login.
3.
Choose from the courses that you are enrolled in.
Information and Blackboard support can also be found on the TELT gateway
(http://telt.unsw.edu.au/). For information on the zPass or how to create your zPass,
visit http://www.it.unsw.edu.au/students/zpass/index.html
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1.2 THE RELATIONSHIP BETWEEN RESEARCH AND TEACHING
It is the policy of the Law School as far as possible to allow teachers to teach in their
area of research and expertise. This means that students are exposed to teachers who
are experts in their fields. Those areas of expertise of course vary. The biographical
details given above indicate the research and professional experience in public law and
other fields that the teacher for this course brings to his classes.
1.3
COURSE DESCRIPTION – ABOUT LAWS2150
This course is worth 6 units of credit.
Welcome to Federal Constitutional Law for session 1, 2012.
This course introduces students to the body of law governing the powers of and
limitations upon the three arms of government which constitute the Australian state.
Central to this is, of course, the Commonwealth Constitution, but this document must be
understood with reference to the High Court’s approach to constitutional interpretation.
The course therefore begins by considering the dominant theories of constitutional
interpretation employed by members of the High Court. These theories are important
to the entire course as they underpin the High Court’s approach to the Commonwealth
Parliament’s legislative powers and also the express and implied limitations on those
powers.
It is important to appreciate that the concerns of this course are far from abstract. The
constitutional powers of the Commonwealth sustain all its legislation and every
enactment must be able to be connected to the legislative capacity of the Parliament as
conferred by the Constitution, and interpreted by the High Court. If not, it is invalid.
Most of the laws made by the Commonwealth Parliament are clearly authorised by the
Constitution and do not give rise to any constitutional challenge. Others, however, may
be more controversial and there is a real question for the Court to decide. Even when
the Commonwealth has enacted a valid law, the Court is often called upon to determine
the impact of this upon State laws which may be inconsistent. Through studying these
cases students will gain an appreciation of the High Court’s contribution to Australian
federalism.
A prominent part of this course concerns the nature of federal judicial power found in
Chapter III of the Constitution and the consequences of its strict separation from the
power exercised by non-judicial arms of government. This topic is directly relevant to
the validity of attempts to confer on federal courts (and also State courts which are
invested with federal jurisdiction) the capacity to affect the liberties of individuals in
unusual ways – namely in pursuit of policies of preventative justice.
The question of limitations on Commonwealth and State powers also takes us into the
area of rights protection. The course examines the (mostly modest) degree to which the
Commonwealth Constitution offers judicially enforceable protection of rights and
freedoms.
This course is related to, and builds on the principles discussed in LAWS 2140 Public
Law. Whereas that course focused on broad conceptual and institutional questions,
5
Federal Constitutional Law concentrates on the provisions of the Commonwealth
Constitution itself and their role in determining the validity of exercises of legislative
power. In doing so, the subject also has a clear relationship with LAWS 2160
Administrative Law, which is concerned with the legal regulation of governmental
action. As with that course, students are required to pay close attention to statutory
interpretation in arriving at legal conclusions. Knowledge is assumed from Foundations
of Law, Administrative Law and Public Law and the course content and level of
treatment has been designed accordingly.
1.4
AIMS
The aims of the course are to ensure that you are familiar with the central principles of
law relating to the interpretation of the Commonwealth Constitution and some of the
surrounding intellectual debates, and to make you an effective constitutional law
problem-solver.
1.5
EXPECTED LEARNING OUTCOMES
Consistent with the aims of the course as above, the learning outcomes expected on the
completion of this course include:
1. Familiarity with the central principles of federal constitutional law:
 the nature and elements of the Commonwealth Constitution;
 the role and methods of the High Court in interpreting the Constitution;
 the relationship between the parties to the Australian Federation;
 the scope of specific grants of legislative power to the Commonwealth;
 the express and implied rights and freedoms guaranteed by the Constitution;
 the strict separation of federal judicial power; and
 the arguments in favour of and against constitutional reform.
2. Intellectual skills, including:
 cultural analysis: appreciating the wider political and economic culture of
constitutional governance and its impact upon the operation of the Australian
federal system;
 facility with theory: examining and evaluating the different approaches to
constitutional interpretation which affect the High Court’s decisions as to the
scope of constitutional powers and limitations; and
 problem-solving and analysis: developing your ability to form, and support
with reasons, assessments of the validity of Commonwealth legislation as
well as to critically analyse competing interpretations of constitutional
provisions by the High Court.
3. Professional skills, including:
 oral skills contributing to collegial discussions and debates; and
 written skills writing essays and problem-solving analyses.
1.6
LEARNING OUTCOMES AND GRADUATE ATTRIBUTES (GAs)
The UNSW Law School also aims to develop specific attributes (or capabilities) in all of
its law graduates. Thus for this course:
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1. Core disciplinary knowledge a functioning and contextual knowledge of law
and legal institutions;
2. Transferable intellectual skills excellent intellectual skills of analysis,
synthesis, critical judgment, reflection and evaluation;
3. Research skills the capacity to engage in practical and scholarly research;
4. Communication skills effective oral and written communication skills both
generally and in specific legal settings;
5. Personal and professional values a commitment to personal and professional
self development, ethical practice and social responsibility.
Accordingly each assessment item relates to one or more of the Law School GAs.
These attributes are described more fully in the Course Outline Appendix 1 at:
http://www.law.unsw.edu.au/sites/law.unsw.edu.au/files/docs/law_school_course_ou
tline_appendices.pdf
1.7
TEACHING RATIONALE
The teaching philosophy in this subject is focused on student-centred learning. Students
are encouraged and supported not just to read and comprehend the material under
examination – but actively to engage with it through their own thoughts and reactions
and to exchange these with others in class discussion.
The principal teaching method consists of class discussion of the decisions and
commentaries extracted in the casebook and supplementary materials. Thus, a major
and essential part of the course is to do the required reading in advance of the class
(and re-read afterwards as needed). The reading has been set at a reasonable amount to
allow you to complete it. You will be expected to participate in class. If this causes you
any difficulty, you should see your lecturer.
2.
ASSESSMENT
2.1
ASSESSMENT SCHEME
The assessment tasks for this course are designed to ensure that the objectives listed
above in the Course Information are attained by students who successfully complete it.
Mid-Session Take-home Exercise – 40% - Due: Monday, 23 April (4.00pm)
The exercise will be made available on Wednesday, 4 April on the Blackboard pages for
this course under the ‘assignments’ tab. The exercise may cover any of the topics
covered up to that point.
The following instructions supplant the Faculty’s general policy on these issues:
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Limits
The page limit for the mid-session exercise is 5 pages. All papers should be typed using
the font of Times New Roman 12pt with double line spacing throughout and a 3cm
margin on all sides. (Please do not attempt to circumvent these requirements by using
11pt or altering the spacing and margins – such variations are easy to spot and you will
be asked to resubmit the paper in the correct format!)
In order that well-referenced papers are not disadvantaged by the page limits, the paper
is to be referenced by means of endnotes rather than footnotes. Incomplete or
inaccurate referencing will attract a penalty. Students should follow the advice on
referencing found in the Australian Guide to Legal Citation which can be found at
http://mulr.law.unimelb.edu.au/files/aglcdl.pdf. Material, other than endnotes, beyond
the 5 page limit will not be read. Endnotes are for referencing, not the subversion of the
word limit.
Submission and Lateness
Take-home exercises are to be submitted via the Assignment Box located on Level 2 of
the Law Building. Please remember to attach and sign a cover sheet and to keep a hard
copy of your paper.
Students must also upload their paper on Blackboard so that these may be processed
using the ‘Turn-it-In’ software which picks up excessive similarity between papers and
acts as a check on student plagiarism. Papers must be loaded on to Blackboard no later
than 6.00pm on 23 April.
A penalty of 5% of the mark awarded will be deducted for every day (or part thereof) of
lateness.
Extensions to the due date will be granted by your lecturer only in exceptional
circumstances. If you have a medical reason, appropriate medical evidence, such as a
doctor’s certificate, should be provided. Any extension should be sought, in writing, no
later than 2 days before the due date.
End of Semester Formal Exam– 60% - Held: Formal Exam Period
The final exam will be open book. It will consist of a combination of problem and essay
questions and is worth 60% of the final mark.
The exam will be based on material covered throughout the course. There will be an
element of choice in selecting which questions to answer.
2.2 ASSESSMENT CRITERIA AND OVERALL GRADING
CRITERIA
The criteria by which both assessment tasks will be assessed will, of course, relate to the
specific questions, but also generally a student’s demonstration of:
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
Knowledge and understanding of the course content;



Ability to apply knowledge appropriately to the assessment task at hand;
Succinctness, clarity, relevance and insight; and
Critical appraisal of the frameworks and assumptions that underpin the subject.
GRADING
This is consistent with the criteria as set out above.
High Distinction [85% and over]: demonstrates an extensive understanding of the
aspects of Commonwealth constitutional law studied and the commensurate high order
ability to apply them as well as analyse and evaluate them.
Distinction [75% to 84%]: demonstrates a thorough understanding of the aspects of
Commonwealth constitutional law studied and the unambiguous ability to apply them
as well as analyse and evaluate them.
Credit [65% to 74%]: demonstrates a sound understanding of the aspects of
Commonwealth constitutional law studied and a clear ability to apply them as well as
analyse and evaluate them.
Pass [50% to 64%]: demonstrates a basic understanding of the aspects of
Commonwealth constitutional law studied and has some demonstrated ability to apply
them as well as analyse and evaluate them.
Fail [less than 50%]: demonstrates insufficient understanding of the aspects of
Commonwealth constitutional law studied AND/OR fails adequately to demonstrate
ability to apply them as well as analyse and evaluate them.
2.3 ASSESSMENT TIMETABLE - LINKS TO LEARNING OUTCOMES & GAs
Assessment Type
Date Due
Marks
Take-home
Exercise
23 April 2012
40
Link
to
Learning
Outcomes and GAs.
Knowledge, analytical,
research and
communication skills
GAs 1,2,3,4
Final Examination
TBA
60
Knowledge, analytical,
and writing skills
GAs 1,2,4
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2.4 FORMAL MATTERS
UNIVERSITY POLICIES ON ASSESSMENTS
Information produced by the UNSW Law School regarding assessments can be found
through the Law School website, http://www.law.unsw.edu.au.
Further information about Formal Matters relating to Assessment can be found in
the Course Outline Appendix 2 at:
http://www.law.unsw.edu.au/sites/law.unsw.edu.au/files/docs/law_school_course_ou
tline_appendices.pdf
ACADEMIC MISCONDUCT AND PLAGIARISM
No essays or assignments can be accepted unless you sign the academic misconduct
declaration that is included on the Law School assignment cover sheet.
It will be assumed that you are thoroughly familiar with the policies re academic
misconduct and plagiarism of the Law School and UNSW.
See the Course Outline Appendix 3 at:
http://www.law.unsw.edu.au/sites/law.unsw.edu.au/files/docs/law_school_course_ou
tline_appendices.pdf
3.
COURSE SCHEDULE
3.1 COURSE MATERIALS
Required reading materials:
The only required textbook is:

Tony Blackshield & George Williams, Australian Constitutional Law & Theory:
Commentary and Materials (5th ed, Federation Press, 2010)
You will need to purchase a copy of this book from the UNSW bookshop and bring it to
every class.
Occasionally, supplements are needed for coverage of more recent cases and these are
available for free at:
http://www.federationpress.com.au/
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3.2 COURSE SCHEDULE
Week
Class
Topic
1
27/28 Feb
Fundamentals of Australian Constitutional Law
1/2 Mar
The High Court and Constitutional Interpretation - A
5/6 Mar
The High Court and Constitutional Interpretation – B
8/9 Mar
The High Court and Characterisation
12/13 Mar
Inconsistency of Laws
15/16 Mar
The External Affairs Power – A
19/20 Mar
The External Affairs Power – B
22/23 Mar
Economic Powers – A
26/27 Mar
Economic Powers – B
29/30 Mar
The Races Power
2/3 Apr
The Defence Power
5/6 Apr
No class – Good Friday
9-15 Apr
MID-SESSION BREAK
16-22 Apr
READING WEEK
2
3
4
5
6
7
11
23/24 Apr
The Taxation Power
26/27 Apr
The Grants Power
30 Apr/1
May
Express Guarantees: Trial by Jury and Freedom of Religion
3/4 May
Freedom of Interstate Trade and Commerce – A
7/8 May
Freedom of Interstate Trade and Commerce – B
10/11 May
Freedom of Political Communication – A
14/15 May
Freedom of Political Communication – B
17/18 May
Judicial Power & Detention – A
21/22 May
Judicial Power & Detention – B
24/25 May
The Federal Compact: the Melbourne Corporation Principle –
A
28/29 May
The Federal Compact: the Melbourne Corporation Principle –
B
31 May/1
Jun
Revision Class
8
9
10
11
12
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3.3 GUIDE TO READING
Students should ideally read as widely as possible, but the references below indicate the
bare minimum of reading which students should complete prior to attending class.
‘Casebook’ refers to Blackshield and Williams, Australian Constitutional Law & Theory:
Commentary and Materials (Federation Press, 5th ed, 2010). Students who have already
purchased the fourth edition of this book are advised to purchase the updated edition as
there have been numerous changes to the previous edition.
In addition to the case extracts contained in Blackshield and Williams, there is one
prescribed case for this course, which must be read in its entirety. The case is Kartinyeri
v Commonwealth (1998) 195 CLR 337 (Hindmarsh Island Bridge case). A link to a full text
copy of this case will be available via Blackboard from Week 1. You should also try to
read as many of the other cases listed under each topic as possible. Although
examination questions will be limited to the extracts of these cases reproduced in the
Casebook, reading cases in their entirety is the best way of understanding the structure
and form of a persuasive constitutional law argument.
Some fairly simple questions are listed under each topic in order to give you some kind
of framework when completing the set reading in advance of each class. We will be
venturing far beyond these questions, but they are a helpful starting point in your initial
approach to a topic.
From time to time, we will be applying the principles under discussion to hypothetical
problems which will be distributed in class.
FUNDAMENTALS OF AUSTRALIAN CONSTITUTIONAL LAW
Reading:
The Constitution
 Casebook 1371-87 (Appendix 1)
Precedent and overruling
 Casebook 584-92 (Chapter 12, section 5(b))
Reading down and severance
 Casebook 578-79 (Chapter 12, section 4(b), to end of second full para on 579).
Questions:



What do you already know about the Commonwealth Constitution?
What rights are protected in the Constitution?
What value does the doctrine of precedent have in the judicial reading of the
Constitution by the High Court?
THE HIGH COURT AND CONSTITUTIONAL INTERPRETATION – A
Reading:
Pre-Engineers
 Casebook 254-62 (Chapter 6, sections 1-3 until start of Blackshield extract)
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The Engineers case
 Casebook 264-70 (Chapter 6, section 4)
The Jumbunna principle
 Casebook 277-79 (Chapter 6, section 6, starting at bottom of 277 after end of
McCulloch extract)
Cases:




Amalgamated Society of Engineers v Adelaide Steamship (1920) 28 CLR 129
Victoria v Commonwealth (1971) 122 CLR 353
Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309
Pape v Commissioner of Taxation (2009) 238 CLR 1 (extract provided before class
on Blackboard)
Questions:



What was the doctrine of reserved State powers?
What general approach to constitutional interpretation was adopted by the High
Court in the Engineers Case? Why did that approach result in the demise of the
reserved State powers doctrine?
What is the relationship between ss 51, 107 and 109 of the Constitution?
THE HIGH COURT AND CONSTITUTIONAL INTERPRETATION – B
Reading:
Literalism and legalism
 Casebook 270-73 (Chapter 6, section 5 to end of first full para on 273)
Judicial choice
 Casebook 284-88 (Chapter 7, section 2)
The dead hand and the living tree
 Casebook 288-317 (Chapter 7, section 3)
Questions:



What is ‘strict and complete legalism’?
How useful are the labels ‘activist’ and ‘legalist’?
What are the arguments in support of an originalist interpretation of the
Commonwealth Constitution?
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THE HIGH COURT AND CHARACTERISATION
Reading:
The characterisation process
 Casebook 741-45 (Chapter 16, section 1)
Dual characterisation
 Casebook 745-54 (Chapter 16, section 2)
Interaction between heads of power
 Casebook 754-59 (Chapter 16, section 3)
Subject matter and purpose powers
 Casebook 759-778 (Chapter 16, sections 4-6)
Cases:







Bank Nationalisation Case (1948) 76 CLR 1
Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1
Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1
New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1
Stenhouse v Coleman (1944) 69 CLR 457
Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Questions:



To what extent does the prospect of ‘dual characterisation’ properly permit of a
capacity for judicial choice?
What is the function of the implied incidental power?
How extensive is use of the proportionality test in the characterisation process?
How acceptable is its role?
INCONSISTENCY OF LAWS
Reading:
The meaning of “invalid”
 Casebook 332 (Chapter 8, section 1)
The tests of inconsistency
 Casebook 333-45 (Chapter 8, section 2)
Manufacturing inconsistency
 Casebook 347-58 (Chapter 8, section 4)
15
Clearing the field
 Casebook 358-64 (Chapter 8, section 5)
Cases:











Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466
Ex parte McLean (1930) 43 CLR 472
Telstra Corporation v Worthing (1997) 197 CLR 61
Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47
Ansett Transport Industries v Wardley (1980) 142 CLR 237
Australian Mutual Provident Society v Goulden (1986) 160 CLR 330
APLA Ltd v Legal Services Commissioner (NSW) (2005) 219 ALR 403
Wenn v Attorney-General (Vic) (1948) 77 CLR 84
Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453
R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137
CLR 545
University of Wollongong v Metwally (1984) 158 CLR 447
Questions:



What does the ‘covering the field test’ do to the ‘federal balance’?
Can Wardley and Goulden be reconciled?
Would it be a complete solution to the problem of uncertainty about the
operation of s 109 for the Commonwealth to include an express provision in all
legislation stating whether or not the legislation was intended to override State
law?
THE EXTERNAL AFFAIRS POWER – A
Reading:
Relations with other countries
 Casebook 878-80 (Chapter 19, section 4(a)).
Matters external to Australia
 Casebook 880-84 (Chapter 19, section 4(b)).
Implementing treaties – an initial approach
 Casebook 885-91 (Chapter 19, section 5(a)-(b)).
Cases:





R v Sharkey (1949) 79 CLR 121
Polyukhovich v Commonwealth (1991) 172 CLR 501
Horta v Commonwealth (1994) 181 CLR 183
XYZ v Commonwealth (2006) 227 CLR 532
R v Burgess; Ex parte Henry (1936) 55 CLR 608
16
Questions:



Could the Commonwealth validly legislate, in reliance on the external affairs
power, to establish an oil platform and pipeline on the North-West Shelf (off the
Western Australian coast), together with a network of pipelines to carry the gas
produced to Australian cities and towns for commercial distribution?
Is mere externality enough to activate the power?
Does any standard approach to the legislative implementation of treaties emerge
from R v Burgess; Ex parte Henry (1936)?
THE EXTERNAL AFFAIRS POWER – B
Reading:
Treaty implementation – modern jurisprudence
 Casebook 891-912 (Chapter 19, section 5(c)-(e))
Cases:




Koowarta v Bjelke-Petersen (1982) 153 CLR 168
Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dam case)
Richardson v Forestry Commission (1988) 164 CLR 261
Victoria v Commonwealth (1996) 187 CLR 416 (Industrial Relations Act case)
Questions:



Could the Commonwealth, in reliance on the Declaration of the General Assembly
of the United Nations on the Rights of the Child (proclaimed 20 November 1959),
validly legislate so as to abolish corporal punishment in schools? (The
Declaration called upon national governments to protect children against all
forms of neglect, cruelty and exploitation.)
Was the result in Tasmania v Commonwealth (1983) the final blow to real
federalism?
On the other hand, what arguments may be made in favour of the majority’s
opinion in that case (and as subsequently elaborated upon in Victoria v
Commonwealth (Industrial Relations Case) (1996)?
ECONOMIC POWERS – A
Reading:
The trade and commerce power
 Casebook 779-92 (Chapter 17, section 1)
The corporations power – which corporations?
 Casebook 792-803 (Chapter 17, section 2(a) and (b))
17
Cases:














W & A McArthur Ltd v Queensland (1920) 28 CLR 530
R v Burgess; ex parte Henry (1936) 55 CLR 608
Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29
Airlines of NSW v New South Wales (No 2) (1965) 113 CLR 54
A-G (WA); Ex rel Ansett v ANAC (1976) 138 CLR 492
O’Sullivan v Noarlunga Meat (1954) 92 CLR 565
Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330
Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468.
R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR
533
R v Federal Court of Australia; Ex parte WA National Football League (1979) 143
CLR 190
State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282
Fencott v Muller (1983) 152 CLR 570
Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dam case)
Questions:



What is it about s 51(xx) which explains the trepidation of members of the High
Court towards its interpretation?
What initial limits to the scope of s 51(xx) were proposed?
Is UNSW a s 51(xx) trading corporation?
ECONOMIC POWERS – B
Reading:
The corporations power – what aspects or activities?
 Casebook 804-20 (Chapter 17, section 2(c))
Incorporation
 Casebook 820-23 (Chapter 17, section (d))
Cases:





Actors and Announcers Equity v Fontana Films (1982) 150 CLR 169
Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dam case)
Re Dingjan; Ex parte Wagner (1995) 183 CLR 323
New South Wales v Commonwealth (2006) 229 CLR 1 (Work Choices case)
New South Wales v Commonwealth (1990) 169 CLR 482 (Incorporation case)
18
Questions:



Could the Commonwealth validly legislate to prevent a trading corporation
logging old-growth forests without the approval of the federal Minister for the
Environment?
Does the decision of Re Dingjan; Ex parte Wagner (1995) simply offer authority
for the proposition that all activities of a sub-contractor engaged by a
corporation will also fall within the Commonwealth’s legislative power under
s.51(xx)?
Can the Commonwealth regulate any activity of a foreign, trading or financial
corporation? Or is it necessary for the Commonwealth to demonstrate that a law
is sufficiently connected to a 51(xx) corporation in its capacity as a ‘foreign’,
‘trading’ and/or ‘financial’ corporation?
THE RACES POWER
Reading:
Interpretation of terms ‘special laws’, ‘necessary’, and ‘people of any race’
 Casebook 972-993 (Chapter 21, sections 1-4)
 Kartinyeri v Commonwealth (1998) 195 CLR 337 (Hindmarsh Island Bridge case)
(a link to a full text copy of this case will be available via Blackboard from Week
1)
Other cases:
 Koowarta v Bjelke-Petersen (1982) 153 CLR 168
 Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dam case)
 Western Australia v Commonwealth (1995) 183 CLR 373 (Native Title Act case)
Questions:





What mention does the Constitution make of Australia’s Indigenous peoples?
When does a person belong to ‘the people of any race’?
Could the Commonwealth Parliament use its races power to enact a law
extinguishing all native title in Australia?
Who decides whether a s 51(xxvi) law is ‘necessary’?
How do concepts of parliamentary sovereignty and popular sovereignty collide in
Kirby J’s dissent in Kartinyeri v Commonwealth (1997)?
THE DEFENCE POWER
Reading:
General scope
 Casebook 825-37 (Chapter 18, sections 1-4).
19
Cold War: the Communist Party Case
 Casebook 843-56 (Chapter 18, section 6)
Terrorism and national security
 Casebook 857-64 (Chapter 18, section 7)
Cases:


Australian Communist Party v Commonwealth (1951) 83 CLR 1 (Communist Party
Case)
Thomas v Mowbray (2007) 233 CLR 307
Questions:




How is the defence power different from those we have considered so far?
Who should decide whether there is a sufficient threat to the defence of Australia
to activate the defence power?
Does the Communist Party Case have anything to do with the protection of civil
liberties?
How useful is section 51(vi) in supporting the Commonwealth’s anti-terrorism
laws?
THE TAXATION POWER
Reading:
What is a tax?
 Casebook 1021-28 (Chapter 23, section 1(a), including introduction)
Fees for services
 Casebook 1028-33 (Chapter 23, section 1(b))
Cases:






Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263
Air Caledonie International v Commonwealth (1988) 165 CLR 462
Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR
480
Northern Suburbs Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555
Luton v Lessels (2002) 210 CLR 333
Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133
Questions:



How is the element of compulsoriness approached by the High Court?
Why did the Court split in Australian Tape Manufacturers Association Ltd v
Commonwealth (1993)?
Does Tape Manufacturers mean that any payment to Consolidated Revenue must
be a tax?
20

Does Airservices Australia v Canadian Airlines International Ltd (1999) make the
fee for services exception more realistic in line with commercial practice, or does
it simply muddy the clear waters of Parton v Milk Board (1949) and Harper v
Victoria (1966)?
THE GRANTS POWER
Reading:
The early cases
 Casebook 1083-85 (Chapter 24, section 2(a))
The uniform tax cases
 Casebook 1085-93 (Chapter 24, section 2(b))
Limits?
 Casebook 1097-1100 (Chapter 24, section 2(d))
Cases:






Victoria v Commonwealth (Federal Roads Case) (1926) 38 CLR 399
Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61
CLR 735
WR Moran Pty Ltd v Deputy Commissioner of Taxation for New South Wales [1940]
AC 838
South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373
Victoria v Commonwealth (Second Uniform Tax case) (1957) 99 CLR 575
Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS case) (1981) 146 CLR
559
Questions:



Assume the Commonwealth Parliament enacts Yet Another New Tax Law 2008
that contains measures to raise GST from 10% to 15%, remove the exemption
applying to food, and simultaneously reduce federal company tax to 25%. In
order to ensure the support of National Party senators, the government declared
that the revenue generated from the removal of the GST exemption on food
would be applied to combat irrigation problems in rural areas. Is this Act valid?
In respect of the Uniform Tax Cases, did the Commonwealth legislative package
prevent the States from raising income tax?
Is the reasoning in the Uniform Tax Cases persuasive? What appears to be the
basis for Dixon J’s support of the outcome in the Second Uniform Tax case?
21
EXPRESS GUARANTEES – TRIAL BY JURY AND FREEDOM OF RELIGION
Reading:
Trial by jury
 Casebook 1155-65 (Chapter 26, section 2)
Freedom of religion
 Casebook 1165-74 (Chapter 26, section 3)
Cases:









R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556
Kingswell v R (1985) 159 CLR 264
Cheng v The Queen (2000) 203 CLR 248
Brown v R (1986) 160 CLR 171
Cheatle v The Queen (1993) 177 CLR 541
Krygger v Williams (1912) 15 CLR 366
Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116
Kruger v Commonwealth (1997) 190 CLR 1
Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS case) (1981) 146 CLR
559
Questions:




What exactly does s 80 guarantee?
Is McHugh J’s defence of the status quo in respect of s 80 in Cheng v The Queen
(2000) convincing?
What two factors have contributed to the failure of s116 as a tool of rights
protection?
Does Gaudron J’s opinion in Kruger create opportunities for an expanded
operation of s 116 or merely explain its present effect?
FREEDOM OF INTERSTATE TRADE AND COMMERCE – A
Reading:
Individual rights theory as illustrated by the Bank Nationalisation Case
 Casebook 1199-1201 (extract from Chapter 27, section 1(a) starting at middle of
1199 and ending at bottom of 1201)
Cole v Whitfield
 Casebook 1208-17 (Chapter 27, section 1(b))
22
Cases:


Commonwealth v Bank of New South Wales [1950] AC 235
Cole v Whitfield (1988) 165 CLR 360
Questions:


What is the distinction between the ‘individual right’ and ‘free trade’ theories
underpinning the High Court’s interpretation of s 92?
Consider the ways in which the unanimous opinion in Cole v Whitfield might be
said to be reflective of some of the theories of constitutional interpretation
considered earlier in the semester.
FREEDOM OF INTERSTATE TRADE AND COMMERCE – B
Reading:
Developments since Cole v Whitfield
 Casebook 1217-26 (Chapter 27, section 1(c)))
Cases:
 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436
 Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411
 Betfair Pty Limited v Western Australia (2008) 234 CLR 418
Questions:


The test formulated in Cole v Whitfield – particularly as applied in Castlemaine
and Bath – appears to require the Court to look to legislative purpose in
assessing whether a burden is of a ‘protectionist kind’. Is this legitimate from an
interpretative or methodological perspective?
Does the more recent decision in Betfair clarify the relevance of legislative
purpose to possible applications of section 92?
IMPLIED FREEDOM OF POLITICAL COMMUNICATION - A
Reading:
Introduction
 Casebook 1257 (Chapter 28, section 1)
A freedom of political communication
 Casebook 1259-71 (Chapter 28, section 3)
23
Cases:


Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Australian Capital Television v Commonwealth (1992) 177 CLR 106
Questions:



In the early cases on the implied freedom, Dawson J accused the majority of
betraying the principles of the Engineers Case. Was that criticism fair?
Would the 1950 Commonwealth ban on the Communist Party have fallen foul of
the principle in Australian Capital Television?
Was the Court correct to apply the implied freedom of political discussion to the
common law of defamation in Theophanous v Herald & Weekly Times Ltd (1994)?
IMPLIED FREEDOM OF POLITICAL COMMUNICATION – B
Reading:
Defamation: the constitutional solution
 Casebook 1271-82 (Chapter 28, section 4)
Defamation: the common law solution
 Casebook 1282-95 (Chapter 28, section 5)
The Politics of Protest
 Casebook 1301-14 (Chapter 29, section 2)
Electoral Matters
 Casebook 1314-19 (Chapter 29, section 3)
Cases:






Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Levy v Victoria (1997) 189 CLR 579
Brown v Classification Review Board (1998) 82 FCR 225 (Rabelais case)
Coleman v Power (2004) 220 CLR 1
Mulholland v Australian Electoral Commission (2004) 220 CLR 181
Questions:


In what ways is the consolidation of Lange v ABC (1997) a more restrained
approach to a constitutionally required freedom of political speech than that
offered by Theophanous?
Do recent cases indicate a clear path forward for the methodology embraced in
Lange?
24
JUDICIAL POWER & DETENTION – A
Reading:
Introduction
 Casebook 640-41 (Chapter 14, section 1)
The incompatibility doctrine
 Casebook 641-52 (Chapter 14, section 2)
Preventive detention
 Casebook 672-90 (Chapter 14, section 5)
Cases:



Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR 1
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Fardon v Attorney-General Queensland (2004) 223 CLR 575
Questions:




Where does the incompatibility doctrine come from?
How does an implication from Chapter III, concerned as it is with federal judicial
power, result in the invalidation of a State law in Kable v DPP (1996)?
Is Kable simply yet another assault on the federal structure?
Did the Court retreat from the reasoning of Kable in the later case of Fardon?
JUDICIAL POWER & DETENTION – B
Reading:
Protective detention
 Casebook 652-55 (Chapter 14, section 3)
Immigration detention
 Casebook 655-72 (Chapter 14, section 4)
Control orders
 Casebook 728-39 (Chapter 15, section 6)
Cases:



Kruger v Commonwealth (1997) 190 CLR 1
Al-Kateb v Godwin (2004) 219 CLR 562
Thomas v Mowbray (2007) 233 CLR 307
25

South Australia v Totani (2010) 242 CLR 1 (extract provided before class on
Blackboard)
Questions:




What exceptions exist to the principle that detention can only be lawfully
ordered by a Court?
How did the framework of exceptions help doom the argument in Kruger v
Commonwealth (1997) that forced removal of Aboriginal children from their
families was unconstitutional?
How is it that a person may be held in detention indefinitely, with no prospect of
release, yet this is not seen as an instance of the Executive appropriating the
judicial power of punishment?
Why is the function conferred on the federal judiciary to issue control orders
‘judicial’ in character?
THE FEDERAL COMPACT – THE COMMONWEALTH & THE STATES – A
Reading:
The Melbourne Corporation Principle
 Casebook 1104-11 (Chapter 25, section 2(a))
Restatement: two principles
 Casebook 1111-21 (Chapter 25, section 2(b))
Cases:




Melbourne Corporation v Commonwealth (1947) 74 CLR 31
Victoria v Commonwealth (1996) 187 CLR 416 (Industrial Relations Act case)
Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192
Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188
Questions:


What is the principle voiced in Melbourne Corporation?
How can this be squared with that of the Engineers case?
THE FEDERAL COMPACT – THE COMMONWEALTH & THE STATES – B
Reading:
Restatement: one principle
 Casebook 1121-32 (Chapter 25, section 2(c))
26
Cases:



Austin v Commonwealth (2003) 215 CLR 185
Clarke v Commissioner of Taxation (2009) 258 ALR 623
New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1
Questions:


4.
Are the distinctions drawn by the majority in the Australian Education Union
Case viable or do you agree with Dawson J’s dissent?
Does Work Choices require a reappraisal of the importance of the principle of
federal immunity from Melbourne Corporation?
ADDITIONAL RESOURCES FOR STUDENTS
There is a large collection of books and articles on Australian public law. Some of the
more useful books, many available in the UNSW library, are listed below. Further
reading is also listed at the end of each chapter in the required text.
Other texts











Gerard Carney, The Constitutional Systems of the Australian States and Territories
(2006);
David Clark, Principles of Australian Public Law (3rd ed, 2010);
Sarah Joseph & Melissa Castan, Federal Constitutional Law: A Contemporary View (3rd
ed, 2010);
Katherine Lindsay, The Australian Constitution in Context (1999);
Gabriel Moens & John Trone, Lumb and Moens’ The Constitution of the
Commonwealth of Australia Annotated (7th ed, 2007);
Imtiaz Omar, Butterworths Questions and Answers: Constitutional Law (2nd ed,
2003);
Suri Ratnapala et al, Australian Constitutional Law: Commentary and Cases (2007);
Andrew Stewart & George Williams, Work Choices: What the High Court Said (2006);
George Williams, Human Rights Under the Australian Constitution (1999);
George Winterton et al, Australian Federal Constitutional Law: Commentary and
Materials (2nd ed, 2007);
Leslie Zines, The High Court and the Constitution (5th ed, 2008).
Collections of essays







Michael Coper & George Williams (eds), How Many Cheers for Engineers? (1997);
Robert French et al, (eds), Reflections on the Australian Constitution (2003);
Goldsworthy, J (ed), Interpreting Constitutions (Oxford University Press, 2006);
Lee, HP, and Gerangelos, P (eds), Constitutional Advancement in a Frozen Continent:
Essays in Honour of George Winterton (Federation Press, 2009);
HP Lee & George Winterton (eds), Australian Constitutional Landmarks (2003);
HP Lee & George Winterton (eds), Australian Constitutional Perspectives (1992);
Brian Opeskin & Fiona Wheeler (eds), Australian Federal Judicial System (2000);
27


Charles Sampford & Kim Preston, Interpreting Constitutions: Theories, Principles and
Institutions (1996);
Adrienne Stone & George Williams (eds), The High Court at the Crossroads: Essays in
Constitutional Law (2000).
Historical







Craven, G (ed), The Convention Debates 1891-1898: Commentaries, Indices and Guide
(1986) (6 volumes);
Harrison Moore, W, The Constitution of the Commonwealth of Australia (2nd ed 1910,
reprinted by Legal Books 1997);
Inglis Clark, A, Studies in Australian Constitutional Law (1901, reprinted by Legal
Books, 1997);
Irving, H, To Constitute a Nation: A Cultural History of Australia’s Constitution (1997);
Irving, H (ed), A Woman’s Constitution? Gender and History in the Australian
Commonwealth (1996);
La Nauze, J, The Making of the Australian Constitution (1972);
Quick, J and Garran, R, The Annotated Constitution of the Australian Commonwealth
(1901, reprinted Legal Books 1976 and 1995).
General










Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion
to the High Court of Australia (2001);
A.J. Brown, Michael Kirby: Paradoxes & Principles (2011);
Michael Coper, Encounters with the Australian Constitution (1987/1988);
Greg Craven, Conversations with the Constitution: Not Just a Piece of Paper (2005);
Brian Galligan, Politics of the High Court (1987);
Haig Patapan, Judging Democracy (2000);
Jason Pierce, Inside the Mason Court Revolution (2006);
David Solomon, The Political High Court (1999);
James Stellios, The Federal Judicature: Chapter III of the Constitution Commentary and
Cases (2009);
Williams, G & Hume, D, People Power: The History and Future of the Referendum in
Australia (2010).
Websites
In addition to the resources made available through the UNSW Blackboard platform,
other websites containing material of relevance and interest to those studying this
course include:
www.aph.gov.au
www.gtcentre.unsw.edu.au
www.hcourt.gov.au
Library
Students seeking to obtain the above or further resources should seek assistance from
the UNSW Library: http://info.library.unsw.edu.au/.
28
5.
CONTINUAL COURSE IMPROVEMENT
5.1 CATEI EVALUATION POLICY
Student feedback is very important to continual course improvement. This is
demonstrated within the School of Law by the implementation of the UNSW Course and
Teaching Evaluation and Improvement (CATEI) Process, which allows students to
evaluate their learning experiences in an anonymous way. The resulting evaluations are
ultimately returned to the course convenor, who will use the feedback to make ongoing
improvements to the course. Additionally, the convenor welcomes other forms of
feedback from students about their experience of the course.
5.2 COURSE EVALUATION AND QUALITY ENHANCEMENT FOR THIS COURSE
The surveys administered in recent years as part of the UNSW Course and Teaching
Evaluation and Improvement process ('CATEI') reveal that overall students have been
generally satisfied with this course. Significant efforts have been made to ensure
students are pleased with the delivery of the course including changes which took
account of student feedback on timing of assessment and volume of reading.
6. ADMINISTRATIVE MATTERS AND STUDENT SUPPORT
SERVICES
For information about
Notice on Distressing Course Material
Occupation Health and Safety
School of Law Office
See Course Outline Appendix 4 at:
http://www.law.unsw.edu.au/sites/law.unsw.edu.au/files/docs/law_school_course_ou
tline_appendices.pdf
29