LSS POLICY & REVISION SEMINAR: Constitutional Law

Alex Fawke

LSS Reminder #1

Barrister Shadowing Program During holidays or semester Consult LSS website

LSS Reminder # 2

Just Leadership Program 2 hours per week Weekly guest speakers including Michael

Kirby, Marilyn Warren, Robert Clark and Paul Grant

Apply via LSS website by May 30

LSS Reminder # 3

Michael Kirby lecture Tomorrow in H3 at 3pm

Disclaimer

Seminar will not be recorded It has not been prepared by the

Faculty of Law and has not received the Faculty’s approval

The issues discussed are speculative, based on past exams, and not necessarily relevant to this exam.

Presentation

Objectives and overview

Seminar objectives

To consider the manner in which to approach a problem question in the exam

To consider key themes from Constitutional Law which may be relevant to an essay/policy question in the exam

Overview Part 1: answering a problem question Part 2: answering an essay question Part 3: division of powers between the

Federal and State governments Part 4: methods of constitutional

interpretation Part 5: implications drawn by the High

Court Part 6: major cases

Part 1: Answering a problem question Only two issues:

Validity of the law Validity of applying the law to party X

Structure 1. Head of power?

Federal, State (see below) External affairs, corporations, grants

2. Implied limitations? IGIs, SoJP, IFPC

3. Express limitations? Interstate trade and commerce, inconsistency

Answering a problem question: head of power State: plenary (consider manner & form) Federal: external affairs, corporations,

grans External affairs

Four aspects: extraterritoriality relations w/ other countries/IOs treaty implementation, matters of international concern

Corporations Is this a constitutional corporation? Is the law within the scope of the corps power?

Answering a problem question: head of power (cont.)

Grants Scope (inducement vs. coercion)

Answering a problem question: implied limitations IGIs

Hard to spot: look for any regulation across different levels of govt.

Curtailment of capacity to function as a govt? SoJP

Hard to spot: look for a body set up to do something or a judge being given new powers

Principle 1 (+ exceptions), Principle (+ exceptions + limitations on the exceptions)

IFPC Burden on FPC? Justification?

Answering a problem question: express limitations

Freedom of interstate trade and commerce (s. 92) Burden on interstate trade? Discrimination b/w products of same kind? Protectionist effect? Export restrictions Exception: legitimate non-protectionist end

Inconsistency (s. 109)

Answering a problem question: state legislation

Plenary power (s. 16) Implied limitations (esp. IGIs and

SoJP) Express limitations Discrete issue: manner and form

Preparing for problem questions

Past exams Tutorial questions/revision material Further reading on law exams:

Patrick Keyzer, Legal Problem Solving: a guide for students

Enid Campbell & Richard Fox, Students’ Guide to Legal Writing and Law Exams

Final tips on problem questions

Most Cth head of power issues will be easy to spot

But make sure you double-check a list of all possible issues before you start righting.

Argue both sides

Part 2: Answering an essay question

“Policy” – sometimes misleading Examine the question carefully Descriptive/historical, predictive and normative

questions (or a combination) Answer the question being asked Create a list of all relevant cases/issues Answers won’t be obvious: no ‘right’ answer Problem question or essay question first?

Structuring an essay All academic essays follow a similar

structure Introduction: summarise your contention and

reasoning Main body: give your reasoning, including

examples Conclusion: summarise your contention and

reasoning; possibly mention related issues The content within that structure will vary

Preparing for essay questions

Recurring themes throughout the course

Past exams Know the starred cases well

Issues to be covered today 1. Division of powers between the States

and the Federal Parliament 2. Methods of constitutional interpretation 3. Implications drawn by the High Court 4. Major cases Note that some questions may combine

multiple issues Undoubtedly, other issues have arisen

throughout the course

Issue 1: division of powers between the Federal and State parliaments

Expansion of Federal power over time

Types of possible questions

Descriptive/historical Has Commonwealth power expanded?

What has caused this? Predictive

Will Commonwealth power continue to expand?

Normative Is it a good or bad thing that

Commonwealth power has expanded?

Example

“The High Court has failed miserably in its role as protector of federalism as protector of federalism under the Australian Constitution” Evaluate the accuracy of this statement using examples from cases and readings. (Semester 1, 2006)

Look at the question: one possible approach

Start by looking at what the question asks “Evaluate the accuracy of this statement” = to

what extent is this statement correct? “using examples from cases and readings”

Then look at what the statement entails: That the High Court has not protected federalism That it is the role of the High Court to protect

federalism in a certain way That this failure is “miserable”

Another example

The literal approach to the characterisation of federal powers, adopted in Engineers in 1920, has caused the High Court to consistently adopt decisions that inexorably expand the power of the Commonwealth at the expense of the States. There are no policy areas left where the Commonwealth cannot exert control.

What is federalism? A system of government in which power is

divided between a central government and regional governments Eg Australia, the USA, Brazil, and some say the

European Union It does not mean equality of powers

between levels of government – that is a question of balance.

It is obviously not the only way to rule a country

It obviously has advantages and disadvantages

The Federal balance in Australia

There is a historical shift towards centralism. Many of the drafters of the Constitution would be shocked today.

Reserve powers: Reserve powers doctrine: preconception

of large sphere of state powers (Barger) Rejection of that doctrine (Engineers)

The Federal balance in Australia (cont.) Uniform Tax cases

s. 96 High Court’s lack of concern for political or

economic ramifications Tasmanian Dams

s. 51 (xxix) Mason, Murphy, Deane and Brennan JJ (majority)

supported broad interpretation Any treaty obligation, regardless of subject

matter Implications: effectively new heads of power

(conservation, human rights, climate change etc.)

The Federal balance in Australia (cont.)

ILO Apparent further expansion of the

external affairs power Draft treaties and recommendations

suffice: no necessary obligation Work Choices

In Constitutional Law, we are not interested in the policy debate

We focus on the issue of federal balance and constitutional interpretation

Federal balance in Australia (cont.)

Work Choices (cont.) Object of command test: any creation of rights,

obligations or conferral of benefits on corporations

States and unions’ arguments rejected, because the presupposed a certain federal balance

Further potential: private schools, hospitals, local transport, energy, defamation, liquor licensing (Kirby J in Work Choices)

Federal balance in Australia (cont.) Limits to Commonwealth power?

External affairs: bona fides, specificity etc. IGIs IFPC

Is the shift to centralism good? Yes

Avoiding duplication Minimum standards

No Local expertise Laboratory argument Loss of check and balance

Federal balance in Australia (cont.)

Further reading on Work Choices George Williams, ‘Goodbye to states’

rights’, The Age, Nov 15 2006 Greg Craven, ‘Industrial Relations, the

Constitution and Federalism: Facing the avalanche’, UNSW Law Journal 2006.

Peter Applegarth SC, ‘The Work Choices Case: Corporations power aspects’, Gilbert + Tobin Centre for Public Law Conference 2007

Issue 2: methods of constitutional interpretation

Literalism vs. originalism Exists in all countries with a

constitution US Supreme Court

Literalism

Interpret the constitution according to its natural (modern) meaning

Any implication must follow necessarily and logically from the text

Judiciary considered inappropriate for political and economic considerations

Originalism

Constitution is interpreted according to its meaning at the time that it was passed

Which has prevailed? Evidence of both Literalism

Engineers Tasmanian Dams Work Choices

Originalism Cole v Whitfield (convention debates allowed as

an interpretive aid; reference to history of Constitution considered – see p. 385)

Which is better?

Originalism Duty to follow the framers’ intention? Unintended altering of federal balance

Literalism What original intention?

Other tools and methods of interpretation

Contextualism (Sem 2 2009 Exam) Value judgments (Sem 2 2008 Exam)

“Reasonableness” and “proportionality” Progressivism and conservatism

Methods of constitutional interpretation (cont.)

Further reading: Joseph and Castan

Issue 3: implications

Has the High Court drawn implications from the Constitution? Where?

Is this good or bad?

Example “It is one thing to interpret the terms of express

provisions in the Constitution, and another to draw implied restrictions on legislative power from such provisions. Implications are more general, vague and inherently unstable, opening the way for greater divergence among the Justices of the High Court. Most of the ‘implications’ elicited from the Constitution are debatable and do not necessarily or logically follow from the text.”

How accurate is that assessment? Give reasons for your answer, and anticipate arguments that might be raised against your position, making use of cases studied in this unit, including at least one starred case.

Where has the HCA found implications?

IGIs ‘The federal compact’ Austin

IFPC Elections and representative government ACTV

SoJP Chapter division

Comments on implications

Bad: Beyond the role of an unelected

judiciary? Frustration of mandate of elected

parliament/government? A breach of the Constitution? Beyond intention of framers? A poor form of law-making? Slippery slope?

Comments on implications (cont.)

Good: A gap-filler to give effect to obvious

assumptions of the framers? A tool for protecting individual rights?

Issue 4: major cases A number of past questions simply ask for

an evaluation of a major case These often involve themes discussed

above Starred cases Kable and subsequent cases Engineers’ Case ACTV/Lange etc. Ruddock v Vadarlis

Final thoughts

Careers in constitutional law Good luck!