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OF SCHOOL LAW
FEDERAL CONSTITUTIONAL LAW
Undergraduate Core Units of Credit: 6 Contact hours per week: 4 Course Outline Session One 2007
Convenor: Keven Booker, Room 335, Faculty of Law, Ph 93852230, K.Booker@unsw.edu.au
1. Contact details 2. Coverage: A Summary 3. Schedule 4. Assessment 5. Materials and Textbooks 6. Detailed Reading Guide 7. Methods, Rationales and Philosophy 8. Academic Honesty and Plagiarism 9. Feedback 10. General University and Faculty Information 11. Learning Outcomes and Graduate Attributes
3 3 4 6 6 7 15 17 17 17 18
1. Contact Details
Course Convenor: Keven Booker Room 335 Ph: 93852230 E-mail: K.Booker@unsw.edu.au Class and Consultation Times: In Session 1, 2007 I am taking the groups B (Mon 12-2 in Law 388 and Thurs 1-3 in Law 389) and D (Mon 3-5 and Thurs 3-5 in Law 163). Law 388, 389 and 163 are rooms in the Law Building (Building F8). I will be in my room immediately before and after these class times. For other weekday times for consultation please check with me by e-mail or telephone. Other Groups: Groups A, C and E in Federal Constitutional Law will be taken by Sean Brennan (see the details in his handout).
2. Coverage: A Summary
Federal Constitutional Law (Laws2150) is a compulsory six units of credit course. The schedule runs for fourteen weeks in Session 1, 2007. Relation to other courses: knowledge is assumed from Foundations of Law, Administrative Law and Public Law and the course content and level of treatment has been designed accordingly. The course covers significant judicial decisions and selected commentary on powers and prohibitions in the Commonwealth Constitution. Several factors dictate a selective approach to the topics for study: time is limited, the coverage must take account of the content of other UNSW law courses, especially Public Law, and not all parts of the Constitution give rise to significant legal controversy. There is a detailed treatment of: trade and commerce, severance and reading down, inconsistency, external affairs, corporations, special laws for the people of any race, naturalization and aliens, excise duties, freedom of interstate trade, general doctrines of characterisation and interpretation, grants and revenue powers, intergovernmental immunities and implied prohibitions, implied rights and freedoms, express rights relating to trial by jury and acquisition of property. Other coverage: aspects of Territories; a small amount of material on the United States Constitution to provide points of comparison and contrast. The topic headings and class allocations are: Topic 1: Introduction (1 class) Topic 2: Characterisation and Interpretation; Severance (2 classes) Topic 3: Inconsistency (s 109) (1 class) Topic 4: External Affairs (s 51(xxix)) (2 classes) Topic 5: Defence (s 51(vi)) (1 class) Topic 6: Corporations (s 51(xx)) (2 classes) Topic 7: Engineers and Interpretation (2 classes) Topic 8: Races Power (s 51(xxvi) (1 class) Topic 9: Naturalization and Aliens (s 51 (xix) (1 Class) 3
Topic 10: Taxation and Grants (2 classes) Topic 11: Excise Duties (s 90) (1 class) Topic 12: Freedom of Interstate Trade (s 92) (1 class) Topic 13: Freedom of Political Communication (2 classes) Topic 14: Rights and Freedoms (3 classes) Topic 15: The Melbourne Corporation Principle (2 classes) Course aims: Initially the objective for each topic in the course is to achieve an understanding of the rules and rulings the subject matter presents. As the material is worked through this goal develops beyond the formal level to engage the debate about the variety, nature and legitimacy of factors which legal reasoning about constitutional law involves. History, social policy and economic consequences, for example, may influence a result or a general doctrine, with varying degrees of judicial acknowledgment. The heavy focus on authoritative judicial review brings the techniques of and trends in judicial method under consideration, although the course does not canvass complex philosophical theories. As the course overall is about key aspects of constitutional power under a written and rigid instrument, there are broader, overarching themes about the adequacy of the Constitution and the role of reform by interpretation. A statement of Law Faculty graduate attributes is set out at the end of this Outline. The crucial linkage with the course aims and the topic coverage rests with the notion of core disciplinary knowledge: the course deals with the power (and lack thereof) of key institutions in the Australian legal system and with legal aspects of their purposes and functions. In pursuit of that knowledge the treatment of cases, text and context contributes to the skills sets under the heading Transferable intellectual skills (in particular: identification and analysis, textual interpretation, application to real problems and ideas about law reform).
Week 1. Week commencing Monday, February 26 Week 2. Week commencing Monday, March 5
Class 1 Class 2
Introduction Characterisation and Interpretation
Class 1 Class 2
Characterisation and Interpretation; Severance Inconsistency
Week 3. Week commencing Monday, March 12 Week 4. Week commencing Monday, March 19
Class 1 Class 2
External Affairs External Affairs
Class 1 Class 2
Week 5. Week commencing Monday, March 26
Class 2 Week 6. Week commencing Monday, April 2
Engineers and Interpretation
Class 1 Class 2
Engineers and Interpretation Races
Note: Mid-Session assessment exercise available Wednesday, April 4. [RECESS/EASTER: Friday April 6 Sunday April 15] Week 7. Week commencing Monday, April 16
[READING WEEK: Monday, April 16 to Sunday, April 22]
Week 8. Week commencing Monday, April 23
Class 1 Class 2
Naturalization and Aliens Taxation and Grants
Week 9 Week commencing Monday, April 30
Class 1 Class 2
Taxation and Grants Excise Duties
Week 10 Week commencing Monday, May 7
Class 1 Class 2
Freedom of Interstate Trade Freedom of Political Communication
Week 11 Week commencing Monday, May 14 Week 12. Week commencing Monday, May 21
Class 1 Class 2
Freedom of Political Communication Rights and Freedoms
Class 1 Class 2
Rights and Freedoms Rights and Freedoms
Week 13. Week commencing Monday, May 28
Class 1 Class 2
Melbourne Corporation Principle Melbourne Corporation Principle
Note: End of Session assessment exercise available Friday June 1. Week 14. Week commencing Monday, June 4
Class 1 5
The basic scheme: 1. Mid-Session take-home exercise: 2. End of Session take-home exercise: 40% 60%
Note (a). The mid-Session assessment exercise will cover Topics 1 to 6 (ie down to and including Corporations). The exercise will consist of a problem question or questions with a requirement to write 1,500 words. The exercise will be available on Wednesday, April 4. The due date is Tuesday, April 17 at 4pm. (b). The end of Session assessment exercise will consist of a mixture of problem and essay questions for a total requirement to write 2,800 words. The end of Session exercise covers Topics 7 to 15, but note that some aspects of Topics 1 to 6 also feature in later Topics. The exercise will be available on Friday, June 1. The due date is Tuesday, June 12 at 4 pm. (c). Re word limits and late work, see the policies and procedures document on the School webpage: www.law.unsw.edu.au/current_students/admininfo/index.asp (d). Assessment exercises should be submitted through the assignment box on level 2. Please remember to attach and sign a cover sheet and to keep a hard copy of your paper. (e) See below under Methods, Rationales and Philosophy for further comments on assessment exercises and types of questions.
5. Materials and Textbooks
The course is based on cases and commentary in Blackshield and Williams, Australian Constitutional Law & Theory: Commentary and Materials (Federation Press, 4th ed, 2006). The book is available from the University campus bookshop. Some supplementary materials will be distributed in class (eg Topic 1 Introduction). For other collections of materials and commentaries see Winterton, Lee, Glass, Thomson and Gerangelos, Australian Federal Constitutional Law: Commentary and Materials (LBC 2006), Hanks, Keyzer and Clarke, Australian Constitutional Law: Materials and Commentary (7th ed, 2004) and Ratnapala, John, Karean and Koch, Australian Constitutional Law: Commentary and Cases (2006). Main reference books (in addition to the books mentioned above). Booker, Glass and Watt, Federal Constitutional Law: An Introduction (2nd ed, 1998). Joseph and Castan, Federal Constitutional Law: A Contemporary View (2nd ed, 2006). Keyzer, Constitutional Law (Butterworths Tutorial Series) (2nd ed, 2005). Moens and Trone, Lumb and Moens The Constitution of the Commonwealth of Australia Annotated (6th ed, 2001). Omar, Constitutional Law (Butterworths Questions and Answers) (2nd ed, 2003). Williams, Human Rights under the Australian Constitution (1999). Zines, The High Court and the Constitution (4th ed, 1997).
Other books: Carney, The Constitutional Systems of the Australian States and Territories (2006). Coper and Williams (eds), The Cauldron of Constitutional Change (1997). Coper and Williams (eds), How Many Cheers for Engineers? (1997). Coper, Encounters With the Australian Constitution (rev ed, 1988). Galligan, A Federal Republic: Australias Constitutional System of Government (1995). Galligan, Politics of the High Court. A Study of the Judicial Branch of Government in Australia (1987). Lane, Lanes Commentary on the Australian Constitution (2nd ed, 1997). Lee and Winterton (eds), Australian Constitutional Perspectives (1992). Lee and Winterton (eds), Australian Constitutional Landmarks (2003). Lindell (ed), Future Directions in Australian Constitutional Law (1994). Opeskin and Rothwell, International law and Australian federalism (1997). Sampford and Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions (1996). Sawer, Australian Federalism in the Courts (1967). Stewart and Williams, Work Choices: What the High Court Said (2006). Zines and Lindell, Sawers Australian Constitutional Cases (4th ed, 1982). Periodical literature Some references to useful articles are included in the suggestions for reading in the class by class reading guide below. It is worth looking at recent issues of leading journals (eg Public Law Review, University of New South Wales Law Journal, University of Sydney Law Review, Federal Law Review, Melbourne University Law Review and Monash University Law Review) as these often contain articles discussing topics covered in the course. Internet resources High Court cases and transcripts are on Austlii (www.austlii.edu.au). The High Court homepage is at www.hcourt.gov.au. Library assistance Assistance is available from the library: http://info.library.unsw.edu.au/Welcome.html and http://info.library.unsw.edu.au/web/services/undergraduates.html.
6. Detailed Reading Guide
Note: Casebook refers to Blackshield and Williams, Australian Constitutional Law & Theory: Commentary and Materials (Federation Press, 4th ed, 2006). Casebook Supplement refers to a supplement to the Casebook on the Federation Press website: www.federationpress.com.au/supplements.
Topic 1: Introduction
One class Material for this topic will be handed out in the first class. 7
Topic 2: Characterisation and Interpretation
Two classes 2.1 The characterisation process Casebook 773 - 774 (to the end of the second new paragraph). Bank Nationalisation Case (1948) 76 CLR 1, Casebook 776 (from first new paragraph, Latham CJ) 777 (end of extract of Dixon J). Casebook 780 (first new paragraph) - 783 (end of the second paragraph). 2.2 Trade and commerce
W & A McArthur Ltd v Queensland (1920) 28 CLR 530, Casebook 795. Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29, Casebook 795 797 (notes to the end of second new paragraph 797).
2.3 Dual characterisation Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1, Casebook 787 790. Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169, Casebook 833 834 (Stephen J). 2.4 Purposive and non-purposive powers Casebook 785 786. Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1, Casebook 793, with notes on 792-794. 2.5 Incidental power Casebook 802 (section 7) 803. 2.6 Incidental power and s 51(i) R v Burgess; ex parte Henry (1936) 55 CLR 608, Casebook 797-799 with notes on 797. Airlines of NSW v New South Wales (No 2) (1965) 113 CLR 54, Casebook 800-802, with notes on 799. A-G (WA); Ex rel Ansett v ANAC (1976) 138 CLR 492, Casebook 806-809. OSullivan v Noarlunga Meat (1954) 92 CLR 565, Casebook 804-805. 2.7 Severance Booker, Glass and Watt, Federal Constitutional Law: An Introduction (2nd ed, 1998), [4.61] [4.68] R v Poole; Ex parte Henry (No 2) (1939) 61 CLR 634, 651 652 (Dixon J). Pidoto v Victoria (1943) 68 CLR 87, 107 - 110 (Latham CJ). (Copies of the above material on severance will be distributed in class). Casebook 637 639. 8
Topic 3: Inconsistency
One class 3.1 Three tests Casebook notes 375-377. Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466, Casebook 377 378. Ex parte McLean (1930) 43 CLR 472, Casebook 379. Ansett Transport Industries v Wardley (1980) 142 CLR 237, Casebook 381 (last paragraph) 384. Telstra Corporation v Worthing (1997) 197 CLR 61, Casebook 379-380. 3.2 Operational inconsistency Casebook 388 (top paragraph of notes). 3.3 Express intention clauses Wenn v Attorney-General (Vic) (1948) 77 CLR 84, Casebook 392 - 394. Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453, Casebook 397. R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545, Casebook 402-403 (end of section 5). 3.4 Retroactive laws and the purpose of section 109 University of Wollongong v Metwally (1984) 158 CLR 447, Casebook 405 408 (end of Mason J) with notes on 404.
Topic 4: External Affairs
Two classes 4.1 Treaty implementation R v Burgess; Ex parte Henry (1936) 55 CLR 608, Casebook 905 907 with notes on 904. Koowarta v Bjelke-Petersen (1982) 153 CLR 168, Casebook 908-911. Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dam case), Casebook 912-915. Victoria v Commonwealth (1996) 187 CLR 416 (Industrial Relations Act case), Casebook 920 (last paragraph) - 923. 4.2 Conformity doctrine Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dam case) (Deane J), Casebook 916 918. Victoria v Commonwealth (1996) 187 CLR 416 (Industrial Relations Act case), Casebook 923 925.
4.3 Relations with other countries, matters external to Australia and other aspects Casebook 899 (section 3(a) and (b)) 903 (first paragraph of notes). XYZ v Commonwealth (2006) 227 ALR 495, Casebook Supplement to Chapter 19, section 3(b).
Topic 5: Defence
One class 5.1 General scope Casebook, 850 864 (end of section 4). 5.2 Communist Party case Australian Communist Party v Commonwealth (1951) 83 CLR 1 (Communist Party case) case, Casebook 870 880 (to the end of the first new paragraph on 880).
Topic 6: Corporations
Two classes 6.1 Power with respect to trading activities Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468, Casebook 822 824 (to the end of section 1). See also Casebook 638 (first new paragraph) note on severance. Actors and Announcers Equity v Fontana Films (1982) 150 CLR 169, Casebook 832 837 and (on the deeming provision) 695. Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dam case), Casebook 838 840 (to the start of the second last paragraph on 840). 6.2 A general test? Re Dingjan; Ex parte Wagner (1995)183 CLR 323, Casebook 841 845 (with notes on 840-841). New South Wales v Commonwealth (2006) 231 ALR 1 (Work Choices case), Casebook Supplement to Chapter 17, section 3 and Supplement to Chapter 16, section 3. 6.3 Trading and financial corporations Casebook 824 (section 2) -825. Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dam case), Casebook 830 831 (Mason J). State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282, Casebook 828 - 829. Fencott v Muller (1983) 152 CLR 570, Casebook 829 830. 6.4 The Incorporation case
New South Wales v Commonwealth (1990) 169 CLR 482 (Incorporation case), Casebook 846 849 (end of section 4).
Topic 7: Engineers and Interpretation
One class 7.1 The Engineers case Amalgamated Society of Engineers v Adelaide Steamship (1920) 28 CLR 129, Casebook 307 (section 4) 312 and 1140. 7.2 Reactions to the Engineers case Victoria v Commonwealth (1971) 122 CLR 353 (Windeyer J), Casebook 312-313. RTE Latham, The Law and the Commonwealth, Casebook 313-314. 7.3 Literalism and legalism Casebook 314 (section 5) 317 (end of the extract from Shklar). 7.4 The Intention of the Framers Casebook 332 (section 3) 340 and Casebook Supplement to Chapter 8, section 3 (dicta from Work Choices). 7.5 Originalism and other isms Casebook 325 332, 341-352 (to the end of section 3).
Topic 8: Races Power
One class Special Laws for the People of any Race Koowarta v Bjelke-Petersen (1982) 153 CLR 168, Casebook 987 (section 2) 989. Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dam case), Casebook 989 994. Western Australia v Commonwealth (1995) 183 CLR 373 (Native Title Act case), Casebook, 995 (section 3) 997. Kartinyeri v Commonwealth  HCA 22; 195 CLR 337 (Hindmarsh Island Bridge case), Casebook 998 (last paragraph) 1009.
Topic 9: and Naturalization Aliens
9.1 Citizen and non-citizen Casebook 948 (section 3(a)) 951(end of article by Rubenstein). 9.2 British born subjects Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178, Casebook 954(section 3(b)) 958 (first paragraph).
Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28, Casebook 968 972. Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 212 CLR 162, Casebook 962 967.
9.3 Persons born in Australia Singh v Commonwealth (2004) 209 ALR 355, Casebook 974 985. Koroitamana v Commonwealth  HCA 28, Casebook Supplement to Chapter 20, section (c). Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 218 ALR 483, Casebook notes 985-986
Topic 10: Taxation and Grants
Two classes 10.1 Definition of taxation Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263 (Latham CJ dictum), Casebook 1060, last paragraph. Air Caledonie International v Commonwealth (1988) 165 CLR 462), Casebook 1061. Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480, Casebook 1062 -1064. Northern Suburbs Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555, Casebook 1064-1065. Luton v Lessels (2002) 210 CLR 333, Casebook 1065 1067. 10.2 Fees for services Air Caledonie International v Commonwealth (1988) 165 CLR 462), Casebook 10681069. Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133, Casebook 1069 1072. 10.3 Grants Victoria v Commonwealth (Federal Roads Case) (1926) 38 CLR 399, Casebook 1120. Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR 735, Casebook 1120 (last paragraph) - 1121. WR Moran Pty Ltd v Deputy Commissioner of Taxation for New South Wales  AC 838, Casebook 1121 1122. 10.4 Uniform Taxation of Income South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373, Casebook 1123 1127. Victoria v Commonwealth (Second Uniform Tax case) (1957) 99 CLR 575, Casebook 1128 1130. 10.5 DOGS case
Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS case) (1981) 146 CLR 559, Casebook 1135 1138.
Topic 11: Excise Duties
One class 11.1 History down to Parton Casebook, 1075 1080 (end of section 1 (b)). 11.2 Dennis Hotels and franchise fees Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529, Casebook 1080 1083. 11.3 Parton confirmed Ha v New South Wales (1997) 189 CLR 465, Casebook 1095 (section 2(f)) 1100. 11.4 Quantity or value? Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599, Casebook 1089 (last paragraph) 1092 (end of section 2(d)).
Topic 12: Freedom of Interstate Trade
One class 12.1 Individual right theory Commonwealth v Bank of New South Wales  AC 235 (Bank Nationalisation case), Casebook 1243 1245. 12.2 A free trade interpretation Cole v Whitfield (1988) 165 CLR 360, Casebook 1253 1261. 12.3 Discrimination in a protectionist sense Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436, Casebook 1264 1267 (end of section 1(c)). 12.4 Effect or purpose Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411, Casebook 1262 1264.
Topic 13: Freedom of Political Communication
2 classes 13. 1 Introduction Casebook 1291 13.2 Freedom of political communication 13
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, Casebook 1293 (section 3) -1295. And see also Mason J on characterisation and proportionality, Casebook 810 (section 8) 813. Australian Capital Television v Commonwealth (1992) 177 CLR 106, Casebook 1296 1301 (facts and Mason CJ to the top three lines on 1301), 1304 1306 (Brennan J).
13.3 The Lange test Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, Casebook 1321- 1330 (end of first new paragraph) and 1372-1376 (section 5). Coleman v Power (2004) 209 ALR 182, Casebook 1343 (first new paragraph) 1351. Mulholland v Australian Electoral Commission (2004) 209 ALR 582, Casebook, 1353 -1359 (section 3). Brown v Classification Review Board (1998) 154 ALR 67 (Rabelais case), Casebook 1341 1343 (top 5 lines). 13.4 Expressive conduct and symbolic speech Casebook, 1334 1339 (end of section 1).
Topic 14: Rights and Freedoms
Three classes 14.1 A Bill of Rights? Street v Queensland Bar Association (1989) 168 CLR 461, 521-522 (Deane J). 14.2 The Kable rule Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, Casebook 721 731. Fardon v Attorney-General Queensland (2004) 210 ALR 50, Casebook 761 772 (end of section 6). 14.3 Involuntary Detention Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, Casebook 690 (second last paragraph) 693 and 719 720. Al-Kateb v Godwin (2004) 208 ALR 124, Casebook 735 (section 4) 746. Re Woolley; Ex parte Applicants M276/2003(by their next friend GS) (2004) 210 ALR 369, Casebook 747- 753. 14.4 Right to trial by jury R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556, Casebook 1197-1198. Kingswell v R (1985) 159 CLR 264, Casebook 1198 1201. Cheng v The Queen (2000) 203 CLR 248, Casebook 1201 1204. Brown v R (1986) 160 CLR 171, Casebook 1204 (first new paragraph). Cheatle v The Queen (1993) 177 CLR 541, Casebook 1204 1206. 14.5 Acquisition of property 14
Casebook 1274 1275. Attorney-General (Commonwealth) v Schmidt (1961) 105 CLR 361 (Dixon J), Casebook 1276 - 1277. Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134, Casebook, 1277. Mutual Pools and Staff Pty Ltd v Commonwealth (1994) 179 CLR 155, Casebook 1277 1279. Grace Bros Pty Ltd v Commonwealth (1946) 72 CLR 269 (Dixon J), Casebook 1288 -1289.
Topic 15: The Melbourne Corporation Principle
Two classes 15.1 Commonwealth laws and the States Melbourne Corporation v Commonwealth (1947) 74 CLR 31, Casebook 1142 - 1146. Austin v Commonwealth (2003) 215 CLR 185, Casebook 1162-1168. 15.2 Discrimination Queensland Electricity Commission v Commonwealth (1982) 159 CLR 192, Casebook 1150 (last paragraph) 1153 (top paragraph). Austin v Commonwealth (2003) 215 CLR 185, Casebook 1162-1168. 15.3 Industrial relations laws and structural integrity Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, Casebook 1155 1159. Victoria v Commonwealth (1996) 187 CLR 416 (Industrial Relations Act case), Casebook 1159 1160. New South Wales v Commonwealth (Work Choices case) (2006) 231 ALR 1, Casebook Supplement to Chapter 25, section 2(c).
7. Methods, Rationales and Philosophy
The principal teaching method consists of class discussion of the decisions and commentaries extracted in the casebook and supplementary materials. Analytical focus is provided by key points summaries on distributed sheets. Problems distributed in class are used for consolidation and revision. Some adjunct notes in the form of Topic overviews are on the course Web page. Selected material may be presented using Powerpoint slides (subject to the availability of suitable projection facilities). The take-home format for assessment exercise strikes a compromise between formal examinations and longer research assignments. The problem questions in the take-home papers emphasise the technical content of the course and are designed to show how practical issues about constitutional law arise in the drafting and operation of statute law. The essay questions are designed to bridge the technical and broader thematic aspects of the course. The following general criteria bear on the grading of papers:
Understanding of the subject content and ability to apply it appropriately to the assessment task at hand; Ability to critically appraise the frameworks and assumptions that underpin the subject; Relevant reading to enhance and comment on the issues under consideration; Succinctness, clarity, relevance and insight; Ability to discuss materials beyond merely describing them and their contents.
It is only possible to teach material in an effective way by enabling and encouraging the learning process: ultimately all learning is self-learning. As with all courses at the Law School the key is to engage material actively and to do so throughout the Session. The lecturers in this course all have a great passion for the subject matter of constitutional law. Their enthusiasm is a resource as much as their expert knowledge.
8. Academic Honesty and Plagiarism
What is Plagiarism? Plagiarism is the presentation of the thoughts or work of another as ones own.* Examples include:
direct duplication of the thoughts or work of another, including by copying material, ideas or concepts from a book, article, report or other written document (whether published or unpublished), composition, artwork, design, drawing, circuitry, computer program or software, web site, Internet, other electronic resource, or another persons assignment without appropriate acknowledgement; paraphrasing another persons work with very minor changes keeping the meaning, form and/or progression of ideas of the original; piecing together sections of the work of others into a new whole; presenting an assessment item as independent work when it has been produced in whole or part in collusion with other people, for example, another student or a tutor; and claiming credit for a proportion a work contributed to a group assessment item that is greater than that actually contributed.
For the purposes of this policy, submitting an assessment item that has already been submitted for academic credit elsewhere may be considered plagiarism. Knowingly permitting your work to be copied by another student may also be considered to be plagiarism. Note that an assessment item produced in oral, not written, form, or involving live presentation, may similarly contain plagiarised material. The inclusion of the thoughts or work of another with attribution appropriate to the academic discipline does not amount to plagiarism. The Learning Centre website is main repository for resources for staff and students on plagiarism and academic honesty. These resources can be located via: 16
www.lc.unsw.edu.au/plagiarism The Learning Centre also provides substantial educational written materials, workshops, and tutorials to aid students, for example, in:
correct referencing practices; paraphrasing, summarising, essay writing, and time management; appropriate use of, and attribution for, a range of materials including text, images, formulae and concepts.
Individual assistance is available on request from The Learning Centre. Students are also reminded that careful time management is an important part of study and one of the identified causes of plagiarism is poor time management. Students should allow sufficient time for research, drafting, and the proper referencing of sources in preparing all assessment items. * Based on that proposed to the University of Newcastle by the St James Ethics Centre.
of Newcastle Adapted with kind permission from the University of Melbourne. Used with kind permission from the University
Courses are regularly reviewed by the formal UNSW CATEI process. Informal feedback is always useful. The new edition of the casebook in use this Session has been adjusted in part to reflect a range of views about accessibility and coverage of federal constitutional law. The due dates and time set for take-homes and the use of actual statutes as the context for problems in assessment are examples of aspects of the course that have been adjusted to accord with suggestions for course improvement.
10. General University and Faculty Information
(a). For information regarding occupational www.hr.unsw.edu.au/ohswc/ohs/ohs_home.html. health and safety see:
(b). Special adjustment of the learning environment to assist a student with a disability may require the assistance of the Equity Officer (Disability) in the Equity and Diversity Unit (9385 4734 or www.equity.unsw.edu.au/disabil.html). This may assistance on issues such as access to materials, signers or note-takers, the provision of services and particular exam and assessment arrangements. (b). There are links on the Faculty homepage (www.law.unsw.edu.au) for information on: Undergraduate Enrolment Timetables Academic Calendar Courses Administrative Information 17
Downloadable Forms Scholarships & Prizes
11. Learning Outcomes and Graduate Attributes
Learning outcomes: At the completion of this course, it is expected that students will have developed an understanding of: Constitution; Commonwealth; as well as: persuasive manner; an ability to cogently discuss these concepts in a scholarly and further development of problem-solving skills. the nature and elements of the Commonwealth Constitution; the role and methods of the High Court in interpreting the the relationship between the parties to the Australian Federation; the scope of specific grants of legislative power to the those rights and freedoms guaranteed by the Constitution; and the arguments in favour of and against constitutional reform;
These outcomes will assist in developing the attributes which the UNSW School of Law aims to instil in its law graduates especially the attributes relating to: (Core disciplinary knowledge) a functioning and contextual knowledge of public law and legal institutions; (Transferable intellectual skills) excellent intellectual skills of analysis, synthesis, critical judgment, reflection and evaluation; and (Communication skills) effective oral and written communication skills both generally and in specific legal settings. _________________________________ [For reference purposes the full text of the Law School resolution on graduate attributes is set out below. The resolution is not meant to preclude further debate or to inhibit thinking about what other views there might be about expectations and outcomes. And, as with any text in law, an interpretive process is assumed.
1. WHAT ATTRIBUTES DO WE DEVELOP IN OUR STUDENTS? The UNSW School of Law instils in students the understandings, values, skills and qualities necessary to become highly qualified professionals with a strong sense of citizenship, community and social justice. A legal education at the UNSW Law School, therefore, develops graduates who have: 11. (Core disciplinary knowledge) a functioning and contextual knowledge of law and legal institutions; 22. (Transferable intellectual skills) excellent intellectual skills of analysis, synthesis, critical judgment, reflection and evaluation; 33. (Research skills) the capacity to engage in practical and scholarly research;
44. (Communication skills) effective oral and written communication skills both generally and in specific legal
settings; 55. (Personal and professional values) a commitment to personal and professional self-development, ethical practice and social responsibility. These attributes build on and contextualises the 12 generic UNSW graduate attributes.(Thus, core disciplinary knowledge incorporate generic attributes 1, 2 and 9; transferable intellectual skills, attributes 3, 4 and 6; research, attribute 5; communication, attribute 12; key values, attributes 4, 7, 8, 9, 10 and 11.) 2. WHAT DO THESE ATTRIBUTES MEAN? A functioning and contextual knowledge of law and legal institutions means: 1 a comprehensive knowledge of the core principles of law, including a critical understanding of the policy considerations informing the law; 2 an understanding of the principal institutions in the Australian and other legal systems and their purpose and functions; 3 an appreciation of the contextual factors that influence the operation of the law and the impact law has on society, politics, the economy and culture; 4 a general understanding of Australian law in international and comparative perspective; and 5 an engagement with the scholarship of law. Excellent intellectual skills of analysis, synthesis, critical judgment, reflection and evaluation incorporate the ability to 1 collect and sort facts; 2 identify and analyse legal issues; 3 interpret legal texts; 4 apply the law to real legal problems; 5 invoke theory and inter-disciplinary knowledge to develop new and creative solutions to legal problems; 6 critique law and policy to develop new ideas about the law and law reform; 7 participate effectively in debates about the law. The capacity to engage in scholarly and empirical research involves the ability to: 1 develop and plan an effective research strategy 2 collect, retrieve and collate relevant information 3 analyse, evaluate and interpret information apply and report on empirical research Effective oral and written communication skills both generally and in specific legal settings includes the ability to: 1 articulate and defend arguments about what the law is and/or should be in writing and orally. 2 work with a diverse range of people and communities 3 demonstrate effective listening skills and an ability to discern the legal issues presented A commitment to personal and professional self-development, ethical practice and social responsibility incorporates: 1 a willingness to engage in life-long learning, that is, retaining and extending existing legal and other skills and knowledge; 2 the capacity to work both independently and as a productive member of a team; 3 an understanding of the ethical framework in which law is practised; 4 acceptance of personal and professional responsibility, 5 a sense of social responsibility and justice; 6 a commitment to values of equity, diversity and inclusiveness.] _____________________________________________
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