SCHOOL OF LAW
LAWS2150
FEDERAL CONSTITUTIONAL LAW Undergraduate Core Units of Credit: 6 Contact hours per week: 4 COURSE OUTLINE SESSION 2 2010
Convenor: Sean Brennan Convenor’s contact details: Law Building / Room 322 Phone: 9385 2334 Email: s.brennan@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: https://www.law.unsw.edu.au/secureweb/docs/2010/law_school_course_outline_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 Sean Brennan (Convenor) Room: Telephone: E-mail: Consultation times:
322 9385 2334 s.brennan@unsw.edu.au by appointment
Anuja Arunothayam E-mail: aprilstuesday@gmail.com Consultation times: by appointment Jo Lennan E-mail: joanne.lennan@unsw.edu.au Consultation times: by appointment Gerald Ng Email: gerald.ng@12thfloor.com.au Consultation times: by appointment Please email your teachers if you need a consultation. YOUR CLASSES Details about your classes—times, venues & dates are available from the Law School website at: www.law.unsw.edu.au/current_students/timetable Anuja Arunothayam and Gerald Ng’s class will be taught jointly by these two teachers. 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. 3
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: 路 Internet Explorer (IE) version 7 or 8 路 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, 路 Firefox 3.0.x (must run version 3.0.3 and above) 路 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 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 academics and researchers who are experts in their fields. Anuja Arunothayam After graduating from UNSW, Anuja Arunothayam worked as an Associate to Justice Hill in the Federal Court of Australia. She also practised in the Constitutional Litigation Unit of the Australian Government Solicitor, where she was involved with cases such as the constitutional challenge to the WorkChoices legislation and challenges to counterterrorism laws. She was employed with Mallesons Stephen Jaques in their Dispute Resolution group until May 2008 when she went to the NSW Bar. Anuja was for four years the coach for the UNSW team in the Sir Harry Gibbs National Moot Competition in Federal Constitutional Law. Sean Brennan Sean Brennan is a Senior Lecturer and Director of the Indigenous Legal Issues Project in the Gilbert + Tobin Centre of Public Law (www.gtcentre.unsw.edu.au). After graduating from the ANU he was an Associate to a Federal Court judge and then moved to Inner City Legal Centre. Between 1994 and 1998 he worked with Cape York Land Council and other Aboriginal organisations. From 1999 to 2002 he was a Research Specialist in the Commonwealth Parliamentary Library. Between 2002 and 2005 he was the Director of the Treaty Project in the Gilbert + Tobin Centre of Public Law and is the co-author (with Larissa Behrendt, Lisa Strelein and George Williams) of Treaty (Federation Press, 2005). He is also a co-author of Heather McRae et al, Indigenous Legal Issues: Commentary and
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Materials (Thomson Reuters, 4th ed, 2009). His primary areas of teaching and research are native title, Indigenous legal issues and constitutional law. Jo Lennan Jo Lennan was admitted as a solicitor of the Supreme Court of New South Wales and High Court of Australia in 2006, and has worked as a solicitor for the NSW Crown Solicitor's Office (Administrative Law section) and for Blake Dawson, Lawyers. Constitutional law matters on which she has worked include Attorney-General (Cth) v Alinta Limited and, in a pro bono capacity, Fardon v Attorney-General (Qld). In 2007-08 she was Associate to the Hon Justice Michael Kirby AC CMG. Jo completed her combined Arts and Law degrees at the University of Technology, Sydney in 2005, graduating with First Class Honours in Law and the University Medal, and she was last year awarded a First for her Bachelor of Civil Law (a master's degree in law) at the University of Oxford. Gerald Ng Gerald Ng is a barrister practising in commercial, constitutional and administrative law. He has both advised on, and litigated, constitutional matters, dealing with such issues as the scope of the Commonwealth’s banking and corporations powers and acquisitions of property on just terms. He was previously an associate to the Hon. Justice W M C Gummow AC. The wealth of research and professional experience of all these teachers ensures that this course is both current and relevant, as the course description below indicates. 1.3
COURSE DESCRIPTION – ABOUT LAWS2150
This course is worth 6 units of credit.
Welcome to Federal Constitutional Law for session 2, 2010. 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 course of judicial interpretation by the High Court of Australia. Students commence the course by considering the dominant theories of constitutional interpretation employed by members of the High Court when reading the Constitution. These theories are of continued importance throughout the course and underpin students’ consideration of particular legislative powers of the Commonwealth Parliament and the express and implied limitations upon those powers which arise from the Constitution. 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 5
cases students will gain an appreciation of the High Court’s contribution to the state of 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 judicial power) 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 LAWS1140 Public Law. But while that course focused upon broad conceptual and institutional questions, Federal Constitutional Law is directed to 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 LAWS1160 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 have 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.
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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; 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.
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These attributes are described more fully in the Course Outline Appendix 1 at: www.law.unsw.edu.au/secureweb/docs/2010/law_school_course_outline_appendices. pdf
1.7
TEACHING RATIONALE
The teaching philosophy in this subject is one focused on student-centred learning. Students are encouraged and supported not just to read and comprehend the material under examination – but to actively 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. Individual lecturers may employ in class a variety of techniques and use different resources as they see fit.
2.
ASSESSMENT
2.1
ASSESSMENT SCHEME
The assessment scheme for this course is a 40% mid-semester take-home exercise and a 60% end-of-session formal exam. 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: Tuesday 14 September (4.00pm) The exercise will be made available on Friday 27 August on the Blackboard course page and may include any of the topics covered up to that point. The following instructions supplant the Faculty’s general policy on these issues: 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 8
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. There is no 0-10% tolerance regarding word length in this course. Submission and Lateness Hard copy: Take-home exercises are to be submitted via the Assignment Box located on Level 2 of the Law Building and cannot be submitted by email. Please remember to attach and sign a cover sheet and to keep a hard copy of your paper. The long take-home period and the Tuesday (rather than Monday) submission date after a prolonged teaching-free period ensures every student is in a position to comply with this requirement. Electronic copy: Assignments must also be sent to your lecturer via Blackboard. The instructions to submit assignments via Blackboard are as follows: 1. 2. 3. 4. 5.
Login to BLACKBOARD. Go to the MENU tab for your class as per the name of your lecturer. Go to the ASSESSMENT FOLDER and click on the appropriate assessment task. Within the appropriate assessment task, click on view/complete. Complete the user agreement for TURNITIN and click the SUBMIT button. You will have to complete your name and the title of your document as part of this step. 6. Upload your file: select browse, locate and open your file and then click UPLOAD. 7. Preview your paper before final submission. If correct, click SUBMIT for final submission. You will then receive a TURNITIN digital receipt. To view what you have submitted follow steps 1-5 above. Students are advised to a keep copy of all assignments, as well as research notes used in their preparation, in case a resubmission is required later in the course. 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.
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2.2 ASSESSMENT CRITERIA AND OVERALL GRADING CRITERIA The criteria by which the exam will be assessed will, of course, relate to the specific questions, but in general we are looking for students to demonstrate:
understanding of the course content and ability to apply it appropriately to the assessment task at hand; ability to critically appraise the frameworks and assumptions that underpin the course; intelligent and thoughtful analysis of the questions asked; succinctness, clarity, relevance and insight; ability to discuss materials beyond merely describing them and their contents.
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 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
14 September 2010
40
Link to Learning Outcomes and GAs. Knowledge, analytical, research and communication skills GAs 1,2,3,4
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Final Examination
TBA
60
Knowledge, analytical, and writing skills GAs 1,2,4
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, www.law.unsw.edu.au. Further information about Formal Matters relating to Assessment can be found in the Course Outline Appendix 2 at: www.law.unsw.edu.au/secureweb/docs/2010/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: www.law.unsw.edu.au/secureweb/docs/2010/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: 11
www.federationpress.com.au/bookstore/book.asp?isbn=9781862877733#booksupple ments 3.2 COURSE SCHEDULE Week
Class
Topic
19-20 July
Introduction
22-23 July
Fundamentals of Australian Constitutional Law
26-27 July
The High Court and Constitutional Interpretation - A
29-30 July
The High Court and Constitutional Interpretation – B
2-3 Aug
The High Court and Characterisation
5-6 Aug
Inconsistency
9-10 Aug
Economic Powers – A
12-13 Aug
Economic Powers – B
16-17 Aug
The External Affairs Power – A
19-20 Aug
The External Affairs Power – B
23-24 Aug
The Defence Power
26-27 Aug
The Races Power
1
2
3
4
5
6
7
Faculty of Law – Reading Week
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Mid-Semester Break – 4-12 September 13-14 Sept
The Taxation Power – What is a Tax?
16-17 Sept
The Grants Power
20-21 Sept
Freedom of Interstate Trade and Commerce – A
23-24 Sept
Freedom of Interstate Trade and Commerce – B
27-28 Sept
Express Guarantees: Trial by Jury and Freedom of Religion
30 Sept1 Oct
Implied Freedom of Political Communication – A
4-5 Oct
NO CLASS DUE TO PUBLIC HOLIDAY MONDAY
7-8 Oct
Implied Freedom of Political Communication – B
11-12 Oct
Judicial Power & Detention – A
14-15 Oct
Judicial Power & Detention – B
18–19 Oct
The Federal Compact: Melbourne Corporation Principle – A
21-22 Oct
The Federal Compact: Melbourne Corporation Principle – B
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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. 13
In addition to the case extracts contained in Blackshield and Williams, we recommend that you read the full text of at least one of the listed cases in its the Commonwealth Law Reports form, and indeed 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 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.
INTRODUCTION No Prescribed Reading
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). Judicial parsimony Casebook 581-83 (Chapter 12, section 5(a) to the end of first extract from Coleman v Power (Kirby J)) 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?
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THE HIGH COURT AND CONSTITUTIONAL INTERPRETATION – A Reading: Pre-Engineers Casebook 254-62 (Chapter 6, sections 1-3 until start of Blackshield extract) 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) Literalism and legalism Casebook 270-73 (Chapter 6, section 5 to start of extract from Blackshield on 273) Cases:
R v Barger (1908) 6 CLR 41 Amalgamated Society of Engineers v Adelaide Steamship (1920) 28 CLR 129 Victoria v Commonwealth (1971) 122 CLR 353 (Payroll Tax Case) Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309
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? What is ‘strict and complete legalism’?
THE HIGH COURT AND CONSTITUTIONAL INTERPRETATION – B Reading: Judicial choice Casebook 284-88 (Chapter 7, section 2) The dead hand and the living tree Casebook 288-317 (Chapter 7, section 3) Questions:
How useful are the labels ‘activist’ and ‘legalist’? What are the arguments in support of an originalist interpretation of the Commonwealth Constitution? 15
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 Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR 418 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 Actors and Announcers Equity v Fontana Films (1982) 150 CLR 169 Pidoto v Victoria (1943) 68 CLR 87 New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1 Stenhouse v Coleman (1944) 69 CLR 457 Re F; Ex parte F (1986) 161 CLR 376 Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 Burton v Honan (1952) 86 CLR 169 Polyukhovich v Commonwealth (1991) 172 CLR 501 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 Leask v Commonwealth (1996) 187 CLR 579
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 Reading: The meaning of “invalid” 16
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) 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 Commonwealth v Western Australia (Mining Act Case) (1999) 196 CLR 392 Wenn v Attorney-General (Vic) (1948) 77 CLR 84 Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595 New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1 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?
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: 17
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 Wragg v NSW (1953) 88 CLR 353 O’Sullivan v Noarlunga Meat (1954) 92 CLR 565 Pape v Commissioner of Taxation (2009) 238 CLR 1 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 Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 22 ALR 621 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)) 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)
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 18
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 EXTERNAL AFFAIRS POWER – A Reading: Relations with other countries Casebook 878-80 (Chapter 19, section 4(a)). Matters external to Australia and international law Casebook 880-85 (Chapter 19, section 4(b) and (c)). Implementing treaties – an initial approach Casebook 885-91 (Chapter 19, section 5(a)-(b)). Cases:
R v Sharkey (1949) 79 CLR 121 Thomas v Mowbray (2007) 233 CLR 307 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:
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 19
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) Pape v Commissioner of Taxation (2009) 238 CLR 1
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)?
THE DEFENCE POWER Reading: General scope Casebook 825-30 (Chapter 18, sections 1-2 to end of Galligan extract on 830). Casebook 834-837 (Chapter 18, sections 3-4) 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:
Andrews v Howell (1941) 65 CLR 255 Stenhouse v Coleman (1944) 69 CLR 457 R v Foster (1949) 79 CLR 43 Commonwealth v Australian Commonwealth Shipping Board (1926) 39 CLR 1 Attorney-General (Vic) v Commonwealth (Clothing Factory Case) (1935) 52 CLR 533 Australian Communist Party v Commonwealth (1951) 83 CLR 1 (Communist Party Case) Marcus Clark & Co Ltd v Commonwealth (Capital Issues Case) (1952) 87 CLR 177 Thomas v Mowbray (2007) 233 CLR 307
Questions:
How is the defence power different from those we have considered so far?
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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 RACES POWER Reading: Interpretation of terms ‘special laws’, ‘necessary’, and ‘people of any race’ Casebook 972-993 (Chapter 21, sections 1-4) 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) Kartinyeri v Commonwealth (1998) 195 CLR 337 (Hindmarsh Island Bridge 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 TAXATION POWER – WHAT IS A TAX? Reading: What is a tax? Casebook 1021-28 (Chapter 23, to the end of section 1(a)) 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 21
Parton v Milk Board (1949) 80 CLR 229 Harper v Victoria (1966) 114 CLR 361 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 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? 22
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?
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)) Cases:
Bank of New South Wales v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1 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: Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 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
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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?
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 Church of The New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120 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?
IMPLIED FREEDOM OF POLITICAL COMMUNICATION - A Reading: Introduction Casebook 1257 (Chapter 28, section 1) A freedom of political communication 24
Casebook 1259-71 (Chapter 28, section 3)
Defamation and the developing implied freedom Casebook 1271-1280 (Chapter 28, section 4 to the end of Theophanous extract on 1280) Cases:
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 Australian Capital Television v Commonwealth (1992) 177 CLR 106 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
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 common law solution Casebook 1282-89 (Chapter 28, section 5 to paragraph commencing ‘Within the constitutional framework...’ on 1289) The Politics of Protest Casebook 1297-1314 (Chapter 29, sections 1 and 2) Electoral Matters Casebook 1314-19 (Chapter 29, section 3) Cases:
McGinty v Western Australia (1996) 186 CLR 140 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Levy v Victoria (1997) 189 CLR 579 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 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:
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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?
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 680-90 (Chapter 14, section 5 from first full para on 680) 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) 26
Cases:
Kruger v Commonwealth (1997) 190 CLR 1 Al-Kateb v Godwin (2004) 219 CLR 562 Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 Thomas v Mowbray (2007) 233 CLR 307
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 MELBOURNE CORPORATION PRINCIPLE – 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 (1971) 122 CLR 353 (Payroll Tax Case) Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dam case) Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 Victoria v Commonwealth (1996) 187 CLR 416 (Industrial Relations Act case)
Questions:
What is the principle voiced in Melbourne Corporation? How can this be squared with that of the Engineers case?
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THE FEDERAL COMPACT: THE MELBOURNE CORPORATION PRINCIPLE – B Reading: Restatement: one principle Casebook 1121-32 (Chapter 25, section 2(c)) 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 Keven Booker, Arthur Glass, and Rob Watt, Federal Constitutional Law: An Introduction (2nd ed, 1998); Gerard Carney, The Constitutional Systems of the Australian States and Territories (2006); David Clark, Principles of Australian Public Law (2nd ed, 2007); 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 (2006); 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).
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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); 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); 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 Greg Craven (ed), The Convention Debates 1891-1898: Commentaries, Indices and Guide (1986); Helen Irving, To Constitute a Nation: A Cultural History of Australia’s Constitution (1997); John Quick & Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901). General Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001); 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). Websites High Court cases reports in the Commonwealth Law Reports are available on Sirius via ‘Lawbook Online’ and ‘Westlaw’. The High Court homepage is at 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/.
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 29
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 This course was not evaluated in 2009 and no current results are thus available.
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: www.law.unsw.edu.au/secureweb/docs/2010/law_school_course_outline_appendices. pdf
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