Bills of Rights

This subject is not offered in 2014.

Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.

The Melbourne Law Masters welcomes applications from students with disabilities. The inherent academic requirements for study in the Melbourne Law Masters are:

• The ability to attend a minimum of 75% of classes and actively engage in the analysis and critique of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and to critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact the Disability Liaison Unit: www.services.unimelb.edu.au/disability/

In many ways, national constitutions are closely tied to their nation states. They are made with the authority of the people of the state. They are often important national symbols. Arguably, they need to be responsive to the circumstances of the state, in order to be effective. On the other hand, constitutional rights are becoming increasingly globalised, drawing freely on comparative experience as well as international human rights norms. This subject provides an international perspective on bills of rights, exploring both the similarities in norms and differences in the ways in which they are understood and given effect. In doing so, it provides insights into how new constitutional rights instruments might most effectively be designed and interpreted. It covers topics such as: arguments for and against bills of rights, the institutional arrangements for the enforcement of bills of rights, proportionality or limitation analysis, the horizontal application of bills of rights and socio-economic rights. The relevance of these issues to the interests of students in the class will be a theme throughout the subject. The lecturer is a leading comparative constitutional rights scholar, whose writings on The New Commonwealth Model of Constitutionalism have attracted world-wide attention.

Principal topics will include:

• The context: Australia today—its current Constitution and the Bill of Rights debate
• Constitutional rights in Canada: When they arrived (1982); what they look like; how the Charter of Rights and Freedoms balances the powers of the courts and legislatures and what Canada might have to offer Australia
• Comparisons with other forms of rights protection in the United States, the United Kingdom, and New Zealand
• Constitutional rights in federal systems of government (i.e., Canada, the United States and Australia)
• The literature and theory of judicial review: The nature of the debate, the relationship between courts and legislatures and judicial review under different models (i.e. ‘strong’ versus ‘weak’ rights-protecting instruments)
• Australia’s future options going forward.

This subject is designed to provide a forum for discussing, analysing and debating the merits of a constitutionalised or entrenched Bill of Rights. It will inform important debates taking place in Australia and enrich that discussion by direct comparisons to Canada and other nations who have adopted different models (some constitutional and others statutory) for the protection of rights. A student who has successfully completed this subject should:

• Be able to analyse and debate different regimes for the protection of rights
• Recognise the key similarities and differences between rights-protecting instruments (i.e., Canada, the United States, the United Kingdom and New Zealand
• Understand the underlying assumptions and institutional choices involved in adopting a particular model for the protection of rights
• Reflect on the relationship between legislatures and courts under a constitutional Bill of Rights
• Have an introduction to the literature on judicial review and debates on the legitimacy of review, as it is discussed outside Australia
• Gain important insight into the question of a Bill of Rights for Australia.

• Take-home examination (100%) (11 – 14 July)
  or
• 10,000 word research paper (100%) (20 August) on a topic approved by the subject coordinator

Core subject materials will be provided free of charge to all students. Some subjects require further texts to be purchased. Details regarding any prescribed texts will be provided prior to the commencement of the subject.

This subject is not available as a breadth subject.