Constitutional Law

This subject has the following teaching availabilities in 2008:

For the purposes of considering request for Reasonable Adjustments under the Disability Standards for Education (Cwth 2005), and Student Support and Engagement Policy, academic requirements for this subject are articulated in the Subject Overview, Learning Outcomes, Assessment and Generic Skills sections of this entry.

It is University policy to take all reasonable steps to minimise the impact of disability upon academic study, and reasonable adjustments will be made to enhance a student's participation in the University's programs. Students who feel their disability may impact on meeting the requirements of this subject are encouraged to discuss this matter with a Faculty Student Adviser and Student Equity and Disability Support: http://services.unimelb.edu.au/disability

This subject continues the analysis of the laws establishing and regulating the Australian state that began in Principles of Public Law and that will continue in Administrative Law. It is structured around the fundamental principles of Australian public law – constitutionalism, representative democracy, the separation of powers, federalism and individual rights – and uses them to examine more closely the institutions of Australian government – the courts, legislatures and the executive. (The examination of the executive branch and the principles of responsible government are taken further in Administrative Law.) Topics covered include:

• Introduction to Australian constitutions and to constitutional law
• Representative Democracy
• Composition, powers and procedures of Australian Parliaments and their constituent chambers
• Political rights and freedoms
• Separation of powers
• Legislature and Executive
• Judicial power
• Australian Federalism o Key features of the Australian federation
• Inconsistency of Commonwealth and State law
• The federal division of legislative power, including the scope of state legislative power and, in relation to federal legislative power, types of power, interpretation, characterisation, incidental power, selected heads of power for detailed study
• The federal division of executive power
• The federal division of judicial power including the concept of federal jurisdiction
• Governmental and inter-governmental immunities: statutory interpretation and constitutional principles
• Economic union: finance, trade and free movement in the Australian federal system
• Express rights and freedoms

This subject is not available as a breadth subject.

On completion of the subject, students should have developed the following generic skills:

• attitudes towards knowledge that include valuing truth, openness to new ideas and ethics associated with knowledge creation and usage
• the capacity for close reading and analysis of a range of sources
• the capacity for critical and independent thought and reflection
• the capacity to solve problems, including through the collection and evaluation of information
• the capacity to communicate in writing
• the capacity to plan and manage time
• the capacity to participate as a member of a team
• intercultural sensitivity and understanding

In addition, on completion of the subject, students should have developed the following skills specific to the discipline of law:

• case reading and analysis, including an ability to:
• read complex constitutional cases, including unedited cases in the law reports
• extract important features from judgments
• reconcile judgments
• evaluate the development of legal principles
• apply legal principles arising from case law to new situations
• statutory reading, interpretation and analysis, including an ability to:
• extract important features from statutes (and in particular constitutions)
• use, interpret and apply statutory (and in particular constitutional) provisions to new situations
• apply the distinct principles of constitutional interpretation
• legal analysis and problem-solving, including an ability to:
• critically analyse legal rules with reference to fundamental principles
• identify and analyse constitutional issues arising in complex fact situations
• apply constitutional principles and provisions to unfamiliar fact situations
• develop and present an appropriately structured and supported legal argument
• legal research skills, including an ability to:
• find primary historical sources relevant to constitution-making and amendment
• find case law
• find statutes and constitutions
• find secondary sources
• identify the most relevant and up-to-date primary and secondary sources and justify the research process
• legal writing skills, including an ability to:
• use case law as part of legal analysis
• use statutes and constitutions as part of legal analysis
• use secondary sources as part of legal analysis
• identify and summarise legal principles
• identify and summarise fundamental principles
• use proper referencing and citation
• present an appropriately structured and supported complex legal argument
• oral communication skills in participating in classroom problem solving and discussion
• an ability to work in groups to solve problems and critically analyse legal materials in a classroom setting