The main purpose of this course is to build on the fundamental understandings achieved in Public Law and Federal Constitutional Law in order to provide a far broader and deeper understanding of the subject. This will be achieved by, first, examining in depth the fundamental aspects and tenets of constitutionalism in the Australian context and from a more jurisprudential perspective. Reliance will be placed on comparative jurisdictions, in particular the United States and the United Kingdom. A detailed analysis will first be attempted of the following major concepts in the more precise context of Westminster-based systems: the rule of law, parliamentary sovereignty, the ambit of executive power and the precise status and principles of responsible government, judicial review and constitutional rights, separation of powers, constitutional conventions, the reserve powers of the Governor-General, the status of common law principles as fundamental constitutional guarantees. A principal focus will be the nature and ambit of executive power, and the evolving jurisrprudence of the High Court on this question. The course will examine the evolving notion of parliamentary supremacy from Diceyan orthodoxy to the more recent debates involving leading constitutional scholars in the UK and Australia. In relation to separation of powers, the different constitutional consequences which result when the doctrine is entrenched in a written constitution (as in the US and Australia) on the one hand, and when it exists as a convention without being so entrenched, on the other, will be explored. The relationship between executive and legislative power will be the principal focus. This will enhance an understanding of the definition, nature and limits of judicial, executive and legislative power and their inter-relationship, an issue which becomes particularly important at moments of constitutional uncertainty and stress, especially at the crossroads of their power. The functionalist/formalist debate will be examined to determine the most appropriate interpretive methodology with respect to the application of the constitutional limitations which may emanate from the separation of powers. In so doing, the principal decisions of the High Court of Australia and other relevant courts in other jurisdictions. There will be an opportunity to evaluate major Australian constitutional decisions in a detail not possible in the prerequisite and undergraduate courses. A principal underlying theme will be the extent to which the tenets of constitutionalism are being complied with in Australia and the extent to which they can be. The course will be enriched and made more presently relevant by the exploration of current developing themes in constitutional law. The precise topics may vary from year to year. Depending on the topic, this may involve the introduction of completely new themes or the integration of developments with topics already examined.
2x2-hr seminars/week for 10 weeks
Class-participation/presentation (20%); and 6000wd research essay (80%): An option is available for students do a moot instead of the research essay if they request to do so. Also, any student who requests it may be able to substitute the 6000wd research essay for a 4000wd research essay plus an exam 2.5 hours (40%). The class participation is redeemable.
Printed Materials prepared by the Convener
LAWS1004 or LAWS3000 or LAWS3003 or (LAWS1021 and LAWS2011)Co-requisites
LAWS3027 or LAWS5101