lss policy & revision seminar: constitutional law alex fawke
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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!