University of Technology Sydney

70616 Australian Constitutional Law

Warning: The information on this page is indicative. The subject outline for a particular session, location and mode of offering is the authoritative source of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.

Subject handbook information prior to 2020 is available in the Archives.

UTS: Law
Credit points: 8 cp
Result type: Grade and marks

Requisite(s): 70211c Contracts
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.

Description

This subject develops an understanding of the fundamentals of Australian constitutional law by examining the role and scope of the Commonwealth Constitution and the division of powers between the Commonwealth and the States under the system of responsible and representative government. Federalism and the fundamentals of State constitutional law are also addressed. Specific topics considered in this subject include: the philosophies and principles which shape Australian constitutional law; the content of the Commonwealth and State constitutions and theories used by the High Court when interpreting the Commonwealth Constitution; Commonwealth legislative powers. The role of international law in shaping Australian domestic law; the scope of executive, parliamentary and judicial powers and the relationship between these three arms of government; the rights and freedoms guaranteed by the Australian Constitution are also explored.

The Supreme Court of each State and Territory within Australia requires all law students to study State and Federal Constitutional Law: this is because constitutional law is the bedrock of the Australian legal systems and a range of legal disputes have the potential to develop into constitutional problems. Students therefore explore aspects of the Commonwealth Constitution and the Constitution of NSW, analyse their provisions and develop a deeper understanding of our system of government. They learn the language and skills of constitutional lawyers: how to research constitutional questions, how to solve constitutional problems and how to predict constitutional outcomes. To appreciate the role of constitutional law and its relevance to other areas of legal study and practice a 'road map' has been developed for students (available on UTSOnline).

Subject learning objectives (SLOs)

Upon successful completion of this subject students should be able to:

1. Explain the philosophies and principles that shape Australian Constitutional law, the content of the Commonwealth Constitution, the fundamentals of state constitutions and the role of the High Court in interpreting the Commonwealth Constitution.
2. Locate, evaluate and organise information from recognised sources, using their research to generate a written legal argument that synthesises legal and contextual principles and issues, in order to critically evaluate and address Constitutional issues.
3. Prepare logical, succinct and persuasive responses to constitutional problems that are supported by relevant evidence and appropriate for a professional legal context.
4. Examine a set of facts, identify relevant Constitutional issues raised and consider Constitutional principles and cases, to determine the likely success of arguments for or against constitutionality.

Course intended learning outcomes (CILOs)

This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:

  • Legal Knowledge
    A coherent understanding of fundamental areas of legal knowledge, including the Australian legal system, social justice, cultural and international contexts and the principles and values of ethical practice (LAW.1.0)
  • Critical Analysis and Evaluation
    A capacity to think critically, strategically and creatively, including an ability to identify and articulate legal issues, apply reasoning and research, engage in critical analysis and make reasoned choices (LAW.3.0)
  • Research skills
    Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues (LAW.4.0)
  • Communication and Collaboration
    Effective and appropriate communication skills, including highly effective use of the English language, an ability to inform, analyse, report and persuade using an appropriate medium and message and an ability to respond appropriately (LAW.5.0)

Teaching and learning strategies

Strategy 1: Preparation for lectures and seminars

In order to prepare for the lectures students are expected to complete the required reading prior to the lecture (see the reading guide available on UTSOnline) and access the lecture slides (also available on UTSOnline) which have been prepared to assist students to structure their understanding of the lectures. They will assist you to follow the important concepts so make sure you print a copy of these slides and bring them to lectures, or have them open on your laptop, during the lecture. Make a note of the questions you would like addressed and ask these during the lecture.

In order to prepare for seminars students are expected to read set materials and attempt reading log questions before every class (see Reading Guide on UTSOnline). The reading-log is designed to guide your understanding of the relevant topic. The reading-log exercise is designed to generate debate and discussion in seminars and students are encouraged to share and discuss their answers to reading-log questions in class.

You are expected to have a grasp of the basics of the topic so that face-to-face learning time can focus on verifying those understandings and developing more complex analyses.

Strategy 2: Lecture participation and review

Lectures provide students with the frameworks and guidance for understanding key principles and cases in selected areas of Constitutional Law and their analysis. You are required to attend at least 70% of lectures in person. Attendance will be taken in each lecture and failure to attend at least 70% of lectures without appropriate permission from the subject coordinator (provided on notice of illness or other extenuating circumstances) may affect your class participation mark. Lectures are recorded so that students can review them in their own time and reflect on their developing understanding of Constitutional Law, however, the recordings are not an alternative to attendance. It is only by participating in the lectures in person that students will be able to take advantage of the numerous opportunities to ask questions and obtain clarification of lecture topics.

Strategy 3: Seminar participation, discussion and analysis

Seminar participation is compulsory and assessed. Students are expected to come to class ready to engage in a lively, informed and critical discussion of the Constitutional law topics set for that class. Discussion is guided by reading-log questions that students must review and answer before coming to class. Examples of questions include: How did 'Australia' come into being as a Federation?; What are the fundamentals of our system of constitutional law?; How are our rights and liberties protected by the Constitution?; and Why are the answers to these questions important to us as lawyers? Some class discussion will also be geared towards providing a critical foundation for the research essay. There will be opportunities for students to receive feedback from their seminar leader and peers as to their understanding of the material set for the seminar.

Strategy 4: Collaborative Problem Solving

In the seminars students will practise solving multi- issue constitutional law problems similar to those in the final exam with the aim of preparing students for the exam. All students will collaborate in problem solving exercises, often divided into groups to mirror the way in which such problems would be addressed in legal practice. Immediate feedback will provided responding to the appropriateness of students’ problem-solving strategies in the Constitutional law context.

Strategy 5: Fact scenario, collaborative group work and role-play exercise.

Students will be assigned a current constitutional legal issue to research in a group over the course of the session. Each student within each group will have both an individual and group role. Groups will work together independently to develop a law reform proposal in relation to the issue. Each student will have individual responsibility for a specific component of the research and reform proposal. They must present their findings on that component of the research within a group presentation to the class. Individual presenters within the group should speak for no more than 5 minutes. Students within the class will be encouraged to ask questions of the presenters. Presentations will take place in designated seminars toward the end of the program. Formal feedback on individual presentations (see UTSOnline) will be provided to students during seminars.

Strategy 6: Online Learning

There will be an open discussion forum on UTSOnline in which students can continue class discussions, follow up on areas of interest, and to raise questions. Students can provide feedback to each other in this forum and the subject coordinator will moderate the forum to ensure that students have a correct understanding of the Constitutional topics under discussion. Non-assessable quizzes will be available on UTSOnline throughout session to provide students with an opportunity to test their understanding of the various topics. There are also extensive resources available for extended learning on UTSOnline including: Recorded lectures; reading guides; additional reading materials; seminar resources; and hot topics in the media about constitutional law.

Subject Delivery

2 hour lecture per week (with one repeat in the evening) and 2 hour seminar per week.

Important Note: The material and approaches to assessment tasks discussed in seminars both complements and adds to the material covered in the lectures, so it is essential that students attend both lectures and seminars.

Content (topics)

  • Fundamentals of Australian Constitutional Law
  • Executive (including Nationhood)
  • Legislative Powers
  • s109 Inconsistency of Laws between the State and the Commonwealth
  • Federalism and the State Constitutions, Commonwealth and State Relations and the Territories; Inter-Governmental Immunities; Commonwealth Laws limiting the States and State Laws limiting the Commonwealth
  • Judicial Power of the Commonwealth and the Separation of Powers; Judicial Power and Civil Rights
  • Rights and Freedoms and Constitutional Guarantees – ss.116, 51(xxxi) & 80 and Other Rights and Freedoms

Assessment

Assessment task 1: Research Essay

Intent:

Development of a critical and analytical approach to the principles and theories behind the Constitution and the way in which power is divided amongst the various arms of government and across the Commonwealth and the States.

Objective(s):

This task addresses the following subject learning objectives:

1 and 2

This task contributes specifically to the development of the following graduate attributes:

LAW.3.0 and LAW.4.0

Weight: 30%
Length:

2000 words (see Further Information).

Criteria:
  • Responds to the question, discusses issues and proposes answers, demonstrating engagement with relevant topics and consideration of their relationship
  • Clearly structured so it is easy to follow the developing argument, with well-developed introduction and conclusion
  • Develops a logical succinct and persuasive argument using a critically analytic approach to principles, theories and issues and reflection with individual insight
  • Evaluates relevant scholarly research and case law and uses relevant cases to support arguments
  • Written clearly and concisely with correct grammar and spelling
  • Accurate and complete referencing (AGLC4) and inclusion of a bibliography

Assessment task 2: Seminar and Lecture Participation (15%) and Group Presentation (15%)

Intent:

Students participation enables students to clarify and reinforce their understanding of the laws, principles and issues facing constitutional law and to develop skills in the presentation of legal arguments as would be required in practice. It also provides ongoing feedback for students from both staff and fellow students.

Objective(s):

This task addresses the following subject learning objectives:

1, 3 and 4

This task contributes specifically to the development of the following graduate attributes:

LAW.1.0, LAW.3.0 and LAW.5.0

Weight: 30%
Length:

Seminar and lecture participation: 1000 words equivalent

Group presentation: 1000 words equivalent

Total: 2000 words

Criteria:

Seminar Participation

  • Regular and active participation in seminars;
  • Consistent, relevant and informed contributions to class discussion;
  • Evidence of preparation for class and development of understanding of materials;
  • Capacity to communicate ideas to peers;
  • Evidence of thorough engagement with course readings;
  • Critical consideration of political or constitutional legal theory;
  • Consideration of the social impact of constitutional law-making;

Group Presentation

  • Evidence of collaboration to develop and refine arguments
  • Evidence of individual preparation and research
  • Demonstrates legal reasoning skills and draws on accurate and relevant evidence, including
  • appropriate use of Constitutional heads of power and supporting case law and principles, with
  • counterarguments anticipated and addressed
  • Arguments grounded in a coherent, logical and ethical critical perspective
  • Presentation clearly structured
  • Clear and succinct expression and articulation

Assessment task 3: Examination: Legal Problem-Solving

Intent:

This task requires students to demonstrate an understanding of the subject content and to be able to apply that understanding to analyse a fact situation, identify the Constitutional issues in that fact situation and apply Constitutional principles and cases to determine the outcome as would be required in legal practice.

Objective(s):

This task addresses the following subject learning objectives:

2 and 4

This task contributes specifically to the development of the following graduate attributes:

LAW.1.0 and LAW.3.0

Weight: 40%
Length:

2 hours

Criteria:
  • Correct identification of important legal issues
  • Correct application of relevant cases and statutory materials
  • Clarity of writing, structure and grammar and persuasiveness of arguments
  • Management of competing arguments.

Required texts

There are two prescribed resources used in this subject:

George Williams, Sean Brennan, Andrew Lynch, Blackshield & Williams: Australian Constitutional Law & Theory, Commentary and Materials, 7th Edition (The Federation Press, 2018).

The Constitution (Commonwealth of Australia Constitution Act 1900 (Imp)) (a copy of The Constitution is provided in the Appendix of the textbook).

A comprehensive Reading Guide for each lecture and seminar will be available on UTSOnline directing you to the appropriate pages in the text and any additional sources you need to review.

Recommended texts

Melissa Castan & Sarah Joseph, Federal Constitutional Law: A Contemporary View, Fifth Edition (Thompson Reuters, 2019).

Other resources

Online resources

LexisNexus (esp Halsbury's Laws of Australia)

LawBook Online (esp Laws of Australia)

Other books, journals, articles and hyperlinks that will be relevant to this course will be posted on UTSOnline or details with be given in class or in your subject outline.

Other resources

The following journal indexes are useful in tracking down journal articles. Some of these emphasise Australian materials, others cover international materials with some references to Australian materials. Some of the indexes allow you access to the full text of journal articles. Go to the Databases catalog on the Library website where you will find the following:

  • AGIS Plus Text via Informit allows you access to the local and overseas journals received by the Attorney-Generals Library, Canberra.
  • Australian Public Affairs Full Text via Informit allows you access to both legal and non legal Australian journals.
  • CaseBase via LexisNexisAu indexes many Australian and some overseas law journals. If the hypertext link works, you have access to the full text of many journal articles.

HeinOnline in particular The Law Journal Library contains the fulltext of over 500 journals. While the majority of these originate in the United States, many of the major university law reviews from Australia and other common law jurisdictions are also included.

Index to Legal Periodicals & Books is a US index focusing primarily on US materials plus other common law countries such as the UK, Canada, Australia, New Zealand etc.

Lexis contains a comprehensive range of United States primary and secondary legal materials and a range of international material from both common and civil law jurisdictions in fulltext. Includes the full text of many journals from various common law countries such as the US, the UK, Canada, Australia, New Zealand etc. This site does NOT provide access to fulltext newspaper services. Additional resources can be found in the Australian Constitutional Law Pathfinder

Useful Websites

Additional online resources will be posted on UTSOnline. Please check the External Links folder on UTSOnline regularly.