LSS POLICY & REVISION SEMINAR: Constitutional Law

1. LSS POLICY & REVISION SEMINAR: Constitutional Law Alex Fawke

2. LSS Reminder #1 • Barrister Shadowing Program • During holidays or semester • Consult LSS website

3. 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

4. LSS Reminder # 3 • Michael Kirby lecture • Tomorrow in H3 at 3pm

5. 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.

6. Presentation • Objectives and overview

7. 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

8. 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

9. 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

10. 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?

11. Answering a problem question: head of power (cont.) • Grants • Scope (inducement vs. coercion)

12. 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?

13. 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)

14. Answering a problem question: state legislation • Plenary power (s. 16) • Implied limitations (esp. IGIs and SoJP) • Express limitations • Discrete issue: manner and form

15. 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

16. 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

17. 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?

18. 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

19. Preparing for essay questions • Recurring themes throughout the course • Past exams • Know the starred cases well

20. 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

21. Issue 1: division of powers between the Federal and State parliaments • Expansion of Federal power over time

22. 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?

23. 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)

24. 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”

25. 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.

26. 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

27. 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)

28. 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.)

29. 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

30. 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)

31. 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

32. 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

33. Issue 2: methods of constitutional interpretation • Literalism vs. originalism • Exists in all countries with a constitution • US Supreme Court

34. 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

35. Originalism • Constitution is interpreted according to its meaning at the time that it was passed

36. 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)

37. Which is better? • Originalism • Duty to follow the framers’ intention? • Unintended altering of federal balance • Literalism • What original intention?

38. Other tools and methods of interpretation • Contextualism (Sem 2 2009 Exam) • Value judgments (Sem 2 2008 Exam) • “Reasonableness” and “proportionality” • Progressivism and conservatism

39. Methods of constitutional interpretation (cont.) • Further reading: • Joseph and Castan

40. Issue 3: implications • Has the High Court drawn implications from the Constitution? Where? • Is this good or bad?

41. 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.

42. Where has the HCA found implications? • IGIs • ‘The federal compact’ • Austin • IFPC • Elections and representative government • ACTV • SoJP • Chapter division

43. 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?

44. Comments on implications (cont.) • Good: • A gap-filler to give effect to obvious assumptions of the framers? • A tool for protecting individual rights?

45. 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

46. Final thoughts • Careers in constitutional law • Good luck!