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 Teaching Staff and Classes 1.2 The Relationship between Research and Teaching

1.3 Course Description1.4 Aims 1.5 Expected Learning Outcomes 1.6 Learning Outcomes and Graduate Attributes1.7 Teaching Rationale

2. Assessment

2.1 Assessment Scheme 2.2 Assessment Criteria and Overall Grading 2.3 Assessment Timetable – Links to Learning Outcomes & GAs 2.4 Formal Matters

3. Course Schedule

3.1 Course Materials 3.2 Course Schedule

3.3 Guide to Reading

4. Additional Resources for Students

5. Continual Course Improvement

5.1 CATEI Evaluation Policy 5.2 Course Evaluation and Quality Enhancement for this Course

6. Administrative Matters

Course Outline Appendices available at: http://www.law.unsw.edu.au/sites/law.unsw.edu.au/files/docs/law_school_course_outline_appendices.pdf

Appendix 1 - UNSW LAW SCHOOL GRADUATE ATTRIBUTESAppendix 2 - FORMAL MATTERS RELATING TO ASSESSMENTAppendix 3 - ACADEMIC MISCONDUCT AND PLAGIARISMAppendix 4 - ADMINISTRATIVE MATTERS AND STUDENT SUPPORT

SERVICESNotice on Distressing Course MaterialOccupation Health and SafetySchool of Law Office

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1. COURSE INFORMATION

1.1 TEACHING STAFF and CLASSES

Teaching staff

Theunis Roux ConvenorRoom 218, Law School Building, UNSW Kensington campusE-mail t.roux@unsw.edu.au Telephone 9385 3418Consultation Times 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 BurtonTelephone +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 KildeaRoom                          367, Law School Building, UNSW Kensington campusE-mail                         p.kildea@unsw.edu.auTelephone                  9385 9652Consultation 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 co-editor 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 Day Time Room Lecturer3524 Tues & Fri 9 – 11 G23 Kildea3525 Tues & Fri 11 – 1 Law 203 Kildea3526 Mon & Thurs 4 – 6 Law 303/203 Burton3527 Mon & Thurs 2 – 4 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, Federal Constitutional Law concentrates on the provisions of the Commonwealth

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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:

1. Core disciplinary knowledge a functioning and contextual knowledge of law and legal institutions;

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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_outline_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:

Limits

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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:

Knowledge and understanding of the course content;

Ability to apply knowledge appropriately to the assessment task at hand;

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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.

2.3ASSESSMENT TIMETABLE - LINKS TO LEARNING OUTCOMES & GAs

Assessment Type Date Due Marks Link to Learning Outcomes and GAs.

Take-home Exercise

23 April 2012 40

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_outline_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_outline_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

25/6 Mar The High Court and Constitutional Interpretation – B

8/9 Mar The High Court and Characterisation

312/13 Mar Inconsistency of Laws

15/16 Mar The External Affairs Power – A

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19/20 Mar The External Affairs Power – B

22/23 Mar Economic Powers – A

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26/27 Mar Economic Powers – B

29/30 Mar The Races Power

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2/3 Apr The Defence Power

5/6 Apr No class – Good Friday

9-15 Apr MID-SESSION BREAK

7 16-22 Apr READING WEEK

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23/24 Apr The Taxation Power

26/27 Apr The Grants Power

930 Apr/1

MayExpress Guarantees: Trial by Jury and Freedom of Religion

3/4 May Freedom of Interstate Trade and Commerce – A

107/8 May Freedom of Interstate Trade and Commerce – B

10/11 May Freedom of Political Communication – A

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14/15 May Freedom of Political Communication – B

17/18 May Judicial Power & Detention – A

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21/22 May Judicial Power & Detention – B

24/25 May The Federal Compact: the Melbourne Corporation Principle – A

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28/29 May The Federal Compact: the Melbourne Corporation Principle – B

31 May/1 Jun

Revision Class

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.

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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)

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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

Questions:

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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))

Cases:

W & A McArthur Ltd v Queensland (1920) 28 CLR 530

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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)

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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).

Cold War: the Communist Party Case

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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? Does Airservices Australia v Canadian Airlines International Ltd (1999) make the

fee for services exception more realistic in line with commercial practice, or does

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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?

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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))

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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)

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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?

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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

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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))

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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:

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?

4. 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);

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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).

WebsitesIn 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/.

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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 aboutNotice on Distressing Course MaterialOccupation Health and SafetySchool 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_outline_appendices.pdf

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