Constitutional Rights and Freedoms

This subject is not offered in 2016.

The pre-teaching period commences four weeks before the subject commencement date. From this time, students are expected to access and review the Reading Guide that will be available from the LMS subject page and the subject materials provided by the subject coordinator, which will be available from Melbourne Law School. Refer to the Reading Guide for confirmation of which resources need to be read and what other preparation is required before the teaching period commences.

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/

Constitutional government is limited government. Government is limited by the establishment of rules governing its institutions and by dividing power along federal lines. Equally important are those aspects of constitutional that identify specific limitations on government. These constitutional law provisions and judicially created doctrines are the focus of this course. Constitutional rights, freedoms and limitations have been the subject of many of the most important High Court cases of recent decades. The course will provide a thematic and in-depth discussion of those cases including cases on freedom of political communication, voting rights, separation of judicial power (and its effect on federal and state courts), intergovernmental immunities, freedom of interstate trade in a federation and the rule of law as a limitation on power.

This subject will therefore explain and critically analyse the key contemporary questions relating to these areas of constitutional law in the context of ongoing debates in comparable jurisdictions. It will help participants understand the current complexity and anticipate future developments in the High Court.

Principal topics include:

• The nature of extent and the ‘express limitations on power in the Australian Constitution including;
  • Freedom of religion
  • The right of trial by jury
  • Freedom of interstate trade
• The nature and extent of the separation of judicial powers in the Australian Constitution including the significance of the separation of judicial power for federal and state courts and for charter of rights (like the Victorian Charter of Rights and Responsibilities)
• The implication protecting representative and responsible government including the significance of the implication for voting rights, the financing of political campaigns and rights of protest in Australia
• Key methodological issues arising in the judicial interpretation of limitations on power including the role of proportionality analysis.

A student who has successfully completed this subject will:

• Have an advanced and integrated understanding of the legal principles of Australian constitutional law in the subject areas
• Be able to critically examine, analyse, interpret and assess principles of constitutional law in the subject area
• Be an engaged participant in debate regarding emerging and contemporary issues in the field, such as the nature and extent of freedom of political communication, the role of freedom of religion in the Constitution, the importance and nature of constitutional rights and proposals for constitutional reform in relation to rights
• Have the cognitive and technical skills to generate critical and creative ideas relating to the subject area and to critically evaluate existing legal theories, principles and concepts
• Have the cognitive and technical skills to independently examine, research and analyse existing and emerging legal issues relating to constitutional law in the subject area
• Have the communication skills to clearly articulate and convey complex information regarding the subject area to relevant specialist and non-specialist audiences
• Be able demonstrate autonomy, expert judgment and responsibility as a practitioner and student in the field of constitutional law.

• Take-home examination (100%) (15-18 January 2016)
  or
• 10,000 word research paper (100%) (15 February 2016) 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.

This subject has a quota of 30 students. Please refer to the website www.law.unimelb.edu.au/masters/courses-and-subjects/subjects/subject-timing-and-format for further information about the management of subject quotas and waitlists.