LSS POLICY & REVISION
SEMINAR: Constitutional Law
Alex Fawke
LSS Reminder #1
 Barrister Shadowing Program
 During holidays or semester
 Consult LSS website
LSS Reminder # 2
 Just Leadership Program
 2 hours per week
 Weekly guest speakers including Michael
Kirby, Marilyn Warren, Robert Clark and
Paul Grant
 Apply via LSS website by May 30
LSS Reminder # 3
 Michael Kirby lecture
 Tomorrow in H3 at 3pm
Disclaimer
 Seminar will not be recorded
 It has not been prepared by the
Faculty of Law and has not received
the Faculty’s approval
 The issues discussed are speculative,
based on past exams, and not
necessarily relevant to this exam.
Presentation
 Objectives and overview
Seminar objectives
 To consider the manner in which to
approach a problem question in the
exam
 To consider key themes from
Constitutional Law which may be
relevant to an essay/policy question
in the exam
Overview
 Part 1: answering a problem question
 Part 2: answering an essay question
 Part 3: division of powers between
the Federal and State governments
 Part 4: methods of constitutional
interpretation
 Part 5: implications drawn by the
High Court
 Part 6: major cases
Part 1: Answering a problem
question
 Only two issues:
 Validity of the law
 Validity of applying the law to party X
 Structure
 1. Head of power?
 Federal, State (see below)
 External affairs, corporations, grants
 2. Implied limitations?
 IGIs, SoJP, IFPC
 3. Express limitations?
 Interstate trade and commerce, inconsistency
Answering a problem question:
head of power
 State: plenary (consider manner & form)
 Federal: external affairs, corporations,
grans
 External affairs
 Four aspects:
 extraterritoriality
 relations w/ other countries/IOs
 treaty implementation,
 matters of international concern
 Corporations
 Is this a constitutional corporation?
 Is the law within the scope of the corps power?
Answering a problem question:
head of power (cont.)
 Grants
 Scope (inducement vs. coercion)
Answering a problem question:
implied limitations
 IGIs
 Hard to spot: look for any regulation across
different levels of govt.
 Curtailment of capacity to function as a govt?
 SoJP
 Hard to spot: look for a body set up to do
something or a judge being given new powers
 Principle 1 (+ exceptions), Principle (+
exceptions + limitations on the exceptions)
 IFPC
 Burden on FPC?
 Justification?
Answering a problem question:
express limitations
 Freedom of interstate trade and commerce
(s. 92)





Burden on interstate trade?
Discrimination b/w products of same kind?
Protectionist effect?
Export restrictions
Exception: legitimate non-protectionist end
 Inconsistency (s. 109)
Answering a problem question:
state legislation
 Plenary power (s. 16)
 Implied limitations (esp. IGIs and
SoJP)
 Express limitations
 Discrete issue: manner and form
Preparing for problem questions
 Past exams
 Tutorial questions/revision material
 Further reading on law exams:
 Patrick Keyzer, Legal Problem Solving: a
guide for students
 Enid Campbell & Richard Fox, Students’
Guide to Legal Writing and Law Exams
Final tips on problem questions
 Most Cth head of power issues will be
easy to spot
 But make sure you double-check a
list of all possible issues before you
start righting.
 Argue both sides
Part 2: Answering an essay
question
 “Policy” – sometimes misleading
 Examine the question carefully
 Descriptive/historical, predictive and normative
questions (or a combination)
 Answer the question being asked
 Create a list of all relevant cases/issues
 Answers won’t be obvious: no ‘right’
answer
 Problem question or essay question first?
Structuring an essay
 All academic essays follow a similar
structure
 Introduction: summarise your contention and
reasoning
 Main body: give your reasoning, including
examples
 Conclusion: summarise your contention and
reasoning; possibly mention related issues
 The content within that structure will vary
Preparing for essay questions
 Recurring themes throughout the
course
 Past exams
 Know the starred cases well
Issues to be covered today
 1. Division of powers between the States
and the Federal Parliament
 2. Methods of constitutional interpretation
 3. Implications drawn by the High Court
 4. Major cases
 Note that some questions may combine
multiple issues
 Undoubtedly, other issues have arisen
throughout the course
Issue 1: division of powers
between the Federal and State
parliaments
 Expansion of Federal power over time
Types of possible questions
 Descriptive/historical
 Has Commonwealth power expanded?
What has caused this?
 Predictive
 Will Commonwealth power continue to
expand?
 Normative
 Is it a good or bad thing that
Commonwealth power has expanded?
Example
 “The High Court has failed miserably
in its role as protector of federalism
as protector of federalism under the
Australian Constitution” Evaluate the
accuracy of this statement using
examples from cases and readings.
(Semester 1, 2006)
Look at the question: one possible
approach
 Start by looking at what the question asks
 “Evaluate the accuracy of this statement” = to
what extent is this statement correct?
 “using examples from cases and readings”
 Then look at what the statement entails:
 That the High Court has not protected
federalism
 That it is the role of the High Court to protect
federalism in a certain way
 That this failure is “miserable”
Another example
The literal approach to the
characterisation of federal powers,
adopted in Engineers in 1920, has
caused the High Court to
consistently adopt decisions that
inexorably expand the power of the
Commonwealth at the expense of
the States. There are no policy
areas left where the Commonwealth
cannot exert control.
What is federalism?
 A system of government in which power is
divided between a central government and
regional governments
 Eg Australia, the USA, Brazil, and some say the
European Union
 It does not mean equality of powers
between levels of government – that is a
question of balance.
 It is obviously not the only way to rule a
country
 It obviously has advantages and
disadvantages
The Federal balance in Australia
 There is a historical shift towards
centralism. Many of the drafters of
the Constitution would be shocked
today.
 Reserve powers:
 Reserve powers doctrine: preconception
of large sphere of state powers (Barger)
 Rejection of that doctrine (Engineers)
The Federal balance in Australia
(cont.)
 Uniform Tax cases
 s. 96
 High Court’s lack of concern for political or
economic ramifications
 Tasmanian Dams
 s. 51 (xxix)
 Mason, Murphy, Deane and Brennan JJ
(majority) supported broad interpretation
 Any treaty obligation, regardless of subject
matter
 Implications: effectively new heads of power
(conservation, human rights, climate change
etc.)
The Federal balance in Australia
(cont.)
 ILO
 Apparent further expansion of the
external affairs power
 Draft treaties and recommendations
suffice: no necessary obligation
 Work Choices
 In Constitutional Law, we are not
interested in the policy debate
 We focus on the issue of federal balance
and constitutional interpretation
Federal balance in Australia (cont.)
 Work Choices (cont.)
 Object of command test: any creation of rights,
obligations or conferral of benefits on
corporations
 States and unions’ arguments rejected, because
the presupposed a certain federal balance
 Further potential: private schools, hospitals,
local transport, energy, defamation, liquor
licensing (Kirby J in Work Choices)
Federal balance in Australia (cont.)
 Limits to Commonwealth power?
 External affairs: bona fides, specificity etc.
 IGIs
 IFPC
 Is the shift to centralism good?
 Yes
 Avoiding duplication
 Minimum standards
 No
 Local expertise
 Laboratory argument
 Loss of check and balance
Federal balance in Australia (cont.)
 Further reading on Work Choices
 George Williams, ‘Goodbye to states’
rights’, The Age, Nov 15 2006
 Greg Craven, ‘Industrial Relations, the
Constitution and Federalism: Facing the
avalanche’, UNSW Law Journal 2006.
 Peter Applegarth SC, ‘The Work Choices
Case: Corporations power aspects’,
Gilbert + Tobin Centre for Public Law
Conference 2007
Issue 2: methods of constitutional
interpretation
 Literalism vs. originalism
 Exists in all countries with a
constitution
 US Supreme Court
Literalism
 Interpret the constitution according to
its natural (modern) meaning
 Any implication must follow
necessarily and logically from the text
 Judiciary considered inappropriate for
political and economic considerations
Originalism
 Constitution is interpreted according
to its meaning at the time that it was
passed
Which has prevailed?
 Evidence of both
 Literalism
 Engineers
 Tasmanian Dams
 Work Choices
 Originalism
 Cole v Whitfield (convention debates allowed as
an interpretive aid; reference to history of
Constitution considered – see p. 385)
Which is better?
 Originalism
 Duty to follow the framers’ intention?
 Unintended altering of federal balance
 Literalism
 What original intention?
Other tools and methods of
interpretation
 Contextualism (Sem 2 2009 Exam)
 Value judgments (Sem 2 2008 Exam)
 “Reasonableness” and “proportionality”
 Progressivism and conservatism
Methods of constitutional
interpretation (cont.)
 Further reading:
 Joseph and Castan
Issue 3: implications
 Has the High Court drawn
implications from the Constitution?
Where?
 Is this good or bad?
Example
 “It is one thing to interpret the terms of express
provisions in the Constitution, and another to draw
implied restrictions on legislative power from such
provisions. Implications are more general, vague and
inherently unstable, opening the way for greater
divergence among the Justices of the High Court.
Most of the ‘implications’ elicited from the Constitution
are debatable and do not necessarily or logically
follow from the text.”
 How accurate is that assessment? Give reasons
for your answer, and anticipate arguments that
might be raised against your position, making
use of cases studied in this unit, including at
least one starred case.
Where has the HCA found
implications?
 IGIs
 ‘The federal compact’
 Austin
 IFPC
 Elections and representative government
 ACTV
 SoJP
 Chapter division
Comments on implications
 Bad:
 Beyond the role of an unelected
judiciary?
 Frustration of mandate of elected
parliament/government?
 A breach of the Constitution?
 Beyond intention of framers?
 A poor form of law-making?
 Slippery slope?
Comments on implications (cont.)
 Good:
 A gap-filler to give effect to obvious
assumptions of the framers?
 A tool for protecting individual rights?
Issue 4: major cases
 A number of past questions simply ask for
an evaluation of a major case
 These often involve themes discussed
above
 Starred cases
 Kable and subsequent cases
 Engineers’ Case
 ACTV/Lange etc.
 Ruddock v Vadarlis
Final thoughts
 Careers in constitutional law
 Good luck!