Overview
LAWS11065 Constitutional law examines the organization, source and limits of Commonwealth and State powers, and the relations between the three branches of government at Commonwealth and State levels. In this unit you will examine State and Commonwealth constitutions and constitutional systems; the constitution and operation of the legislature, executive and judiciary; the relationship between the different institutions of government and the separation of powers; and the relationship between the different levels of government. This unit meets the LPAB requirements for federal and state constitutional law.
Details
Pre-requisites or Co-requisites
Co-requisite LAWS11057
Important note: Students enrolled in a subsequent unit who failed their pre-requisite unit, should drop the subsequent unit before the census date or within 10 working days of Fail grade notification. Students who do not drop the unit in this timeframe cannot later drop the unit without academic and financial liability. See details in the Assessment Policy and Procedure (Higher Education Coursework).
Offerings For Term 2 - 2021
Attendance Requirements
All on-campus students are expected to attend scheduled classes – in some units, these classes are identified as a mandatory (pass/fail) component and attendance is compulsory. International students, on a student visa, must maintain a full time study load and meet both attendance and academic progress requirements in each study period (satisfactory attendance for International students is defined as maintaining at least an 80% attendance record).
Recommended Student Time Commitment
Each 6-credit Undergraduate unit at CQUniversity requires an overall time commitment of an average of 12.5 hours of study per week, making a total of 150 hours for the unit.
Class Timetable
Assessment Overview
Assessment Grading
This is a graded unit: your overall grade will be calculated from the marks or grades for each assessment task, based on the relative weightings shown in the table above. You must obtain an overall mark for the unit of at least 50%, or an overall grade of ‘pass’ in order to pass the unit. If any ‘pass/fail’ tasks are shown in the table above they must also be completed successfully (‘pass’ grade). You must also meet any minimum mark requirements specified for a particular assessment task, as detailed in the ‘assessment task’ section (note that in some instances, the minimum mark for a task may be greater than 50%). Consult the University’s Grades and Results Policy for more details of interim results and final grades.
All University policies are available on the CQUniversity Policy site.
You may wish to view these policies:
- Grades and Results Policy
- Assessment Policy and Procedure (Higher Education Coursework)
- Review of Grade Procedure
- Student Academic Integrity Policy and Procedure
- Monitoring Academic Progress (MAP) Policy and Procedure – Domestic Students
- Monitoring Academic Progress (MAP) Policy and Procedure – International Students
- Student Refund and Credit Balance Policy and Procedure
- Student Feedback – Compliments and Complaints Policy and Procedure
- Information and Communications Technology Acceptable Use Policy and Procedure
This list is not an exhaustive list of all University policies. The full list of University policies are available on the CQUniversity Policy site.
Feedback, Recommendations and Responses
Every unit is reviewed for enhancement each year. At the most recent review, the following staff and student feedback items were identified and recommendations were made.
Feedback from Unsolicited email
"I do particularly enjoy Constitutional Law as a subject. I find it to be more philosophical than many of the other areas of the law, which appeals to me."
Continue to present contextual/theoretical/political issues in Constitutional law, rather than focussing on a purely technical approach.
Feedback from "Have your say" student evaluations
Textbook is very big and can be difficult to read, but study guides are excellent.
Consider making secondary textbook more central or setting less pages of reading per week.
Feedback from "Have your say" student evaluations
"Sustain - Current issues discussed in assessments. Tip of the spear!"
Continue to include discussion of current events and linking of Constitutional law to issues that are relevant/newsworthy.
- Explain and discuss key constitutional law principles such as Australian federalism, the constitution and operation of the legislature, executive and judiciary, the relationship between the different institutions of government and the doctrine of separation of powers, constitutionalism, rule of law, parliamentary sovereignty, the relationship between the different levels of government, and responsible and representative government
- Research case law and demonstrate critical thinking in applying case law, and key provisions and legal principles of the Australian Commonwealth Constitution, State constitutions, and statutes, to constitutional law issues and problems
- Critically examine, evaluate, and explain the theoretical and actual operation and relationship of the Australian legislature, executive, and judiciary, at both federal and state levels.
Alignment of Assessment Tasks to Learning Outcomes
| Assessment Tasks | Learning Outcomes | ||
|---|---|---|---|
| 1 | 2 | 3 | |
| 1 - Written Assessment - 40% | |||
| 2 - Group Work - 10% | |||
| 3 - Take Home Exam - 50% | |||
Alignment of Graduate Attributes to Learning Outcomes
| Graduate Attributes | Learning Outcomes | ||
|---|---|---|---|
| 1 | 2 | 3 | |
| 1 - Communication | |||
| 2 - Problem Solving | |||
| 3 - Critical Thinking | |||
| 4 - Information Literacy | |||
| 5 - Team Work | |||
| 6 - Information Technology Competence | |||
| 7 - Cross Cultural Competence | |||
| 8 - Ethical practice | |||
| 9 - Social Innovation | |||
| 10 - Aboriginal and Torres Strait Islander Cultures | |||
Alignment of Assessment Tasks to Graduate Attributes
| Assessment Tasks | Graduate Attributes | |||||||||
|---|---|---|---|---|---|---|---|---|---|---|
| 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | |
| 1 - Written Assessment - 40% | ||||||||||
| 2 - Group Work - 10% | ||||||||||
| 3 - Take Home Exam - 50% | ||||||||||
Textbooks
Australian Constitutional Law: Foundations and Theory
3rd revised edition (2012)
Authors: Ratnapala, Suri & Crowe, Jonathan
Oxford University Press
South Melbourne South Melbourne , VIC , Australia
ISBN: 9780195519037
Binding: Paperback
Additional Textbook Information
Both paper and eBook versions can be purchased at the CQUniversity Bookshop here: http://bookshop.cqu.edu.au (search on the Unit code)
IT Resources
- CQUniversity Student Email
- Internet
- Unit Website (Moodle)
All submissions for this unit must use the referencing style: Australian Guide to Legal Citation, 4th ed
For further information, see the Assessment Tasks.
c.y.lee@cqu.edu.au
Module/Topic
Introduction to Australian Constitutional Law:
Constitutions and Constitutionalism
We begin by looking at the structure of the unit, what we plan to cover, assessment activities and engagement with each other.
In terms of content, students are introduced to the Australian constitutional system, covering both Commonwealth and state constitutions.
More broadly, we will examine what a constitution is and the philosophical ideal of constitutional law, namely, constitutionalism. We will discuss the central tenets of constitutionalism and its rationale.
Chapter
Ratnapala and Crowe, Australian Constitutional Law and Theory: Foundations and Theory (3rd Ed) (Oxford University Press, 2012) Chapters 1 and 2.
Constance Y Lee, "Calvinist Natural Law and Constitutionalism" (2014) Australian Journal of Legal Philosophy 39(1) 1.
Events and Submissions/Topic
Tutorial 1
Module/Topic
Interpreting Commonwealth Powers
In the second week, we turn to examine the Australian constitutional framework. This builds on knowledge you accrued in Introduction to Law and Statutory Interpretation.
We begin by revisiting the tripartite separation of powers (horizontal) before delving into the constitutional reality of this separation.
We go on to explore the constitutional development of the separation between the three arms of government to examine the practical realities of this ideal.
Chapter
Ratnapala and Crowe, Australian Constitutional Law and Theory: Foundations and Theory (3rd Ed) (Oxford University Press, 2012) Chapters 6 and 10.
Events and Submissions/Topic
Tutorial 2
Module/Topic
Legislative Power I: Economic Powers
In keeping with the structure of the Constitutional text of Australia, we turn to examine the legislative Heads of Powers (HOP's).
HOP's are located in s 51 of the Constitution are concurrent powers which are common to Commonwealth and State Parliaments. However, powers of the states to make laws in respect to these subject matters are severely restricted due to other constitutional provisions.
Section 51(xx) has become a massive source of power for the Commonwealth to regulate economic activity.
Chapter
Ratnapala and Crowe, Australian Constitutional Law and Theory: Foundations and Theory (3rd Ed) (Oxford University Press, 2012) Chapters 12-13.
Events and Submissions/Topic
Tutorial 3
Module/Topic
Legislative Power II: International Powers
Like the rest of s 51 HOP's, s 51(xxix) is a legislative power held concurrently by the Commonwealth and the states.
This particular HOP allows the Commonwealth Parliament to regulate 'external affairs' which has been broadly interpreted by the HC as encompassing: geographical power; treaty power and international relations power.
Unlike external affairs power, the defence power outlined in section 51(vi) allows the Commonwealth Parliament "to make laws for the peace, order and good government of the Commonwealth" with respect to national defence. This an elastic power which applies more broadly in wartime than in peacetime. The federal executive has control over day-to-day operations regarding military and defence.
Chapter
Ratnapala and Crowe, Australian Constitutional Law and Theory: Foundations and Theory (3rd Ed) (Oxford University Press, 2012) Chapter 14.
Events and Submissions/Topic
Tutorial 4
Module/Topic
Conflict of Laws
The Constitution of Australia provides processes for resolution where there is a conflict between Commonwealth and State laws.
This week, we will discuss the three (3) main ways in which the conflict between Commonwealth and State governments regarding the concurrent powers listed in s 51 may arise.
As the Commonwealth law must be within power in order to be valid, this is the first limb to be overcome. If this is the case, s 109 provides a mechanism for resolving the conflict. Under s 109, the Commonwealth law prevails to the extent of inconsistency.
Chapter
Ratnapala and Crowe, Australian Constitutional Law and Theory: Foundations and Theory (3rd Ed) (Oxford University Press, 2012) Chapter 11 (especially 263-273).
Events and Submissions/Topic
Tutorial 5
Case Note Due: Week 5 Friday (13 Aug 2021) 10:00 pm AEST
Module/Topic
Break Week
Chapter
Events and Submissions/Topic
No tutorial
Module/Topic
Intergovernmental Immunities
The relationship between Commonwealth and State governments is a crucial feature of Australia's constitutional system. If we refer to the tripartite separation of powers between legislative, executive and judicial powers; we can refer to this as a vertical separation of powers embodied in the constitutional ideal of federalism.
Due to the balance of powers between Commonwealth and state governments, which can be fragile, the Australian constitutional system provides for resolution in case of conflict between Commonwealth and state statutes (as seen last week).
In addition to a process for resolution of conflict, the Constitution also provides for immunities that the Commonwealth and state governments possess against interference with one another's executive decisions.
Chapter
Ratnapala and Crowe, Australian Constitutional Law and Theory: Foundations and Theory (3rd Ed) (Oxford University Press, 2012) 285-291.
Events and Submissions/Topic
Tutorial 6
Module/Topic
Executive Power
The second power in the horizontal separation of powers is executive power. Executive power is vested in the Queen and is exercisable by the Governor-General as the Queen's representative pursuant to s 61.
By virtue of s 61, Australia remains a constitutional monarchy with the Queen as our formal Head of State.
The convention of responsible government underlies this section of the Constitution of Australia which holds that the Governor General acts on the advice of the Ministers who are, in turn, responsible to the Parliament.
We will discuss the practical application of s 61 and its commitment to the constitutional ideal of responsible government in this lecture.
Chapter
Ratnapala and Crowe, Australian Constitutional Law and Theory: Foundations and Theory (3rd Ed) (Oxford University Press, 2012) Chapter 3.
Events and Submissions/Topic
Tutorial 7
Module/Topic
Judicial Power of the Commonwealth
This week, we look at the third of the horizontal heads of power, namely, judicial power. The constitutional power of the courts to decide 'matters' is contained in Chapter III (ss 75-78), which is the reason they are commonly referred to as Chapter III courts.
The High Court has set out several key elements required for a power to be deemed 'judicial.' We will consider the key elements of the definition of judicial power.
This week is also a great opportunity to contemplate the role of the judiciary on a normative level. It is the arm of government which is tasked with guarding the basic rights of citizens. This nature of this role sheds light on what the judiciary needs in order to properly fulfil its constitutional function.
Chapter
Ratnapala and Crowe, Australian Constitutional Law and Theory: Foundations and Theory (3rd Ed) (Oxford University Press, 2012) Chapters 7-9.
Events and Submissions/Topic
Tutorial 8
Module/Topic
Judicial Power of the States
Further to last week's examination of the nature of the judiciary and the constitutional protections it enjoys at the Commonwealth level, we go on to consider judicial independence at the state level.
Traditionally, the separation of powers was loosely upheld at the state level and did not strictly apply by virtue of State constitutional texts. State parliaments have plenary powers including the power to override their own constitutions.
However, in recent years, the protections of judicial independence in states have seen as necessary extensions of Commonwealth judicial power. Instead of deriving their power from state constitutions, several High Court decisions have found that the doctrine of 'institutional integrity' warrants constitutional safeguards for judicial independence at state level.
Chapter
Ratnapala and Crowe, Australian Constitutional Law and Theory: Foundations and Theory (3rd Ed) (Oxford University Press, 2012) 132-147.
Constance Y Lee, "Constitutional Silences and the Doctrine of Institutional Integrity" Chapter 9 in Ananian-Welsh and Crowe, Judicial Independence in Australia (Federation Press, 2016).
Events and Submissions/Topic
Tutorial 9
Constitutional Law Reflective Blog Due: Week 9 Friday (17 Sept 2021) 10:00 pm AEST
Module/Topic
Constitutional Rights I: Express Rights
Constitutional rights (unlike statutory or common law rights) cannot be overridden by either the legislature or the judiciary. These rights often take the form of immunities for individuals or groups of individuals against government action.
There are two types of rights conferred by the Constitution: express rights and implied rights. Express rights refer to those constitutional rights which are explicitly stated in the constitutional text.
This week, we will consider the nature of constitutional rights (more broadly) as well as aspects and examples of express constitutional rights.
We will discuss case law relating to s 51(xxxi): The right to compensation for any acquisition of property by the Commonwealth, s 92 The right to freedom of interstate trade, commerce and intercourse and s116: the express right to freedom of religion, inter alia.
Chapter
Ratnapala and Crowe, Australian Constitutional Law and Theory: Foundations and Theory (3rd Ed) (Oxford University Press, 2012) Chapter 15.
Events and Submissions/Topic
Tutorial 10
Module/Topic
Constitutional Rights II: Implied Rights
This week, we turn our focus to implied constitutional rights. These are rights at the High Court has found are implied or incidental to the express provisions of the Constitution.
We will consider the rationality of 'necessary implications' - those implications which are necessary for a constitutional provision to be effective and 'contextual implications' - those implications that play a key role by virtue of context.
We will examine the most significant implied constitutional right which is the qualified freedom of political communication as upheld by the High Court in the seminal 1992 cases: Nationwide News v Wills and ACTV v Commonwealth.
Chapter
Ratnapala and Crowe, Australian Constitutional Law and Theory: Foundations and Theory (3rd Ed) (Oxford University Press, 2012) Chapter 15.
Events and Submissions/Topic
Tutorial 11
Module/Topic
Constitutional Change
In the last week, we examine the various ways for amending the Constitution.
Section 128 provides a two step process for amending the constitution which is a relatively rigorous amendment process which has only been successfully utilised a handful of times. We will examine one of these instances, where the so-called 'races power' was changed by the 1967 Referendum to delete discriminatory reference to Indigenous people.
Another way to effect constitutional change may be through judicial interpretation. As constitutional provisions are often vague, courts will inevitably be required to clarify their scope in applying the provisions to particular cases. Over time, the process of interpretation brings about important constitutional changes. This role of the judiciary to shape constitutional meaning is often controversial.
We will end the week by discussing the 'Manner and Form' limitations on constitutional change at state level.
Chapter
Ratnapala and Crowe, Australian Constitutional Law and Theory: Foundations and Theory (3rd Ed) (Oxford University Press, 2012) Chapter 16.
George Williams, "Removing Racism from Australia's Constitutional DNA" (2012) Alternative Law Journal 37, 151-155.
Events and Submissions/Topic
Tutorial 12
Guest Lecture: Dr Jacob Deem
Module/Topic
Review/Exam Week
Chapter
Events and Submissions/Topic
Module/Topic
Exam Week
Chapter
Events and Submissions/Topic
1 Written Assessment
This is a written assessment on the case set in the task sheet. The Assessment should refer to both cases and commentary on Constitutional law, and show a critical understanding of the relevant law, including connections to social, political and/or theoretical perspectives. You may draw on current political or historical events in the research paper.
Expected length is 2,500 words. Any material in excess of the word count will not be considered by the marker.
The task sheet is available on Moodle.
Week 5 Friday (13 Aug 2021) 10:00 pm AEST
Online, via Moodle
Feedback on Moodle and/or Gradebook approximately 2 weeks of submission.
The paper will be assessed on:
- Depth and breadth of research
- Critical thinking skills
- Coherence and structure of discussion/argument
Further details for assessment, including a rubric, will be provided on Moodle.
- Explain and discuss key constitutional law principles such as Australian federalism, the constitution and operation of the legislature, executive and judiciary, the relationship between the different institutions of government and the doctrine of separation of powers, constitutionalism, rule of law, parliamentary sovereignty, the relationship between the different levels of government, and responsible and representative government
- Research case law and demonstrate critical thinking in applying case law, and key provisions and legal principles of the Australian Commonwealth Constitution, State constitutions, and statutes, to constitutional law issues and problems
- Critically examine, evaluate, and explain the theoretical and actual operation and relationship of the Australian legislature, executive, and judiciary, at both federal and state levels.
- Communication
- Problem Solving
- Critical Thinking
- Information Literacy
2 Group Work
To complete this assessment, you will need to find another student to work with. A Moodle forum will be set up to facilitate this process. The latter part of this assessment allows you to display your ability to work with another student in a team, and students should take the initiative to organise the pairings themselves. You will be placed into a pair by week 4 if you have not found someone to work with, so ensure that you inform your coordinator if you have found a partner.
A topic has been set in the Task Sheet for Assessment 2 on Moodle. Please read the instructions carefully.
There are two parts to this task. The first is for you (as individual students) to write a reflective blog on the constitutional issue outlined in the task sheet and based on the popular culture stimulus provided. The second part involves marking your partner's reflective blog and giving them feedback. Both your reflective blog and the grading of your partner's work must be submitted together in a single document but on separate pages. Please ensure that you submit in Word Format.
Submit the feedback you prepared for the other student to Moodle. Ensure that your name and that of your partner appears on the document so it can be cross referenced by the unit coordinator. It should be clear to me who has graded the paper and who is the partner.
You will receive an individual grade for your work.
Week 9 Friday (17 Sept 2021) 10:00 pm AEST
Online (via Moodle)
Feedback will be supplied on Moodle and/or Gradebook approximately 2 weeks of submission.
Collegiality, ability to assist others with their learning.
Writing and communication skills - write in an appropriate style.
Further details of assessment details will be posted to Moodle.
- Explain and discuss key constitutional law principles such as Australian federalism, the constitution and operation of the legislature, executive and judiciary, the relationship between the different institutions of government and the doctrine of separation of powers, constitutionalism, rule of law, parliamentary sovereignty, the relationship between the different levels of government, and responsible and representative government
- Research case law and demonstrate critical thinking in applying case law, and key provisions and legal principles of the Australian Commonwealth Constitution, State constitutions, and statutes, to constitutional law issues and problems
- Critically examine, evaluate, and explain the theoretical and actual operation and relationship of the Australian legislature, executive, and judiciary, at both federal and state levels.
- Communication
- Problem Solving
- Critical Thinking
- Information Literacy
- Ethical practice
3 Take Home Exam
A take home paper will be released to students during exam week.
This paper will be similar to past invigilated exams, but will be sat at home within a limited timeframe and then submitted via Moodle.
More details about this assessment will be supplied on Moodle.
During the University examination period (TBA)
Grades will be released on Certification of Grades date.
Criteria for this assessment includes: knowledge of Australian constitutional law, history and theory, ability to spot issues and apply constitutional law to unique problem scenarios, ability to write in a clear and convincing way.
More details will be supplied via Moodle.
- Explain and discuss key constitutional law principles such as Australian federalism, the constitution and operation of the legislature, executive and judiciary, the relationship between the different institutions of government and the doctrine of separation of powers, constitutionalism, rule of law, parliamentary sovereignty, the relationship between the different levels of government, and responsible and representative government
- Critically examine, evaluate, and explain the theoretical and actual operation and relationship of the Australian legislature, executive, and judiciary, at both federal and state levels.
- Communication
- Problem Solving
- Critical Thinking
- Cross Cultural Competence
- Ethical practice
As a CQUniversity student you are expected to act honestly in all aspects of your academic work.
Any assessable work undertaken or submitted for review or assessment must be your own work. Assessable work is any type of work you do to meet the assessment requirements in the unit, including draft work submitted for review and feedback and final work to be assessed.
When you use the ideas, words or data of others in your assessment, you must thoroughly and clearly acknowledge the source of this information by using the correct referencing style for your unit. Using others’ work without proper acknowledgement may be considered a form of intellectual dishonesty.
Participating honestly, respectfully, responsibly, and fairly in your university study ensures the CQUniversity qualification you earn will be valued as a true indication of your individual academic achievement and will continue to receive the respect and recognition it deserves.
As a student, you are responsible for reading and following CQUniversity’s policies, including the Student Academic Integrity Policy and Procedure. This policy sets out CQUniversity’s expectations of you to act with integrity, examples of academic integrity breaches to avoid, the processes used to address alleged breaches of academic integrity, and potential penalties.
What is a breach of academic integrity?
A breach of academic integrity includes but is not limited to plagiarism, self-plagiarism, collusion, cheating, contract cheating, and academic misconduct. The Student Academic Integrity Policy and Procedure defines what these terms mean and gives examples.
Why is academic integrity important?
A breach of academic integrity may result in one or more penalties, including suspension or even expulsion from the University. It can also have negative implications for student visas and future enrolment at CQUniversity or elsewhere. Students who engage in contract cheating also risk being blackmailed by contract cheating services.
Where can I get assistance?
For academic advice and guidance, the Academic Learning Centre (ALC) can support you in becoming confident in completing assessments with integrity and of high standard.
What can you do to act with integrity?
