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Unit outline_

LAWS5011: Federal Constitutional Law

Semester 1, 2023 [Normal evening] - Camperdown/Darlington, Sydney

The main objective of the course is to impart an understanding of the fundamentals of federal constitutional law through the study of key judicial decisions on powers and prohibitions in the Commonwealth Constitution. In a one session course it is neither feasible nor desirable to study all aspects of federal constitutional law. The course is designed to provide a general conceptual framework for solving problems about federal constitutional law by a detailed treatment of selected topics. The course also aims to: - Provide analysis of the function of the High Court as the final arbiter of constitutionality. - Develop an understanding of the techniques of judicial review as applied in Australia. - Encourage discussion on the adequacy of the Constitution as Australia's basic instrument of government and on the scope for 'reform' by interpretation. The topics covered in detail include: The basic principles of constitutional interpretation (in relation to which the trade and commerce power will be used to illustrate); inconsistency between Commonwealth and State laws; Commonwealth legislative power including, in addition to trade and commerce as above, external affairs, corporations, defence, tax (with excise), and grants; and prohibitions on Commonwealth legislative power such as freedom of interstate trade, the implied freedom of political communications, non-establishment and free exercise of religion, and the principles of intergovernmental immunity.

Unit details and rules

Academic unit Law
Credit points 6
Prerequisites
? 
LAWS5007
Corequisites
? 
None
Prohibitions
? 
LAWS2011
Assumed knowledge
? 

None

Available to study abroad and exchange students

No

Teaching staff

Coordinator Joel Harrison, joel.harrison@sydney.edu.au
Lecturer(s) Peter Chiam, peter.chiam@sydney.edu.au
Type Description Weight Due Length
Supervised exam
? 
hurdle task
Final Examination (60%)
Formal in person, invigilated examination (subject to final confirmation.)
60% Formal exam period 2.5 hours
Outcomes assessed: LO1 LO2 LO3 LO4 LO5
Assignment hurdle task Mid-Semester Assignment (40%)
72 hour (short release) assignment
40% Week 08
Due date: 21 Apr 2023 at 16:59

Closing date: 21 Apr 2023
3000 words / 72 hour
Outcomes assessed: LO1 LO2 LO3 LO4 LO5
hurdle task = hurdle task ?

Assessment summary

A. MID-SEMESTER ASSIGNMENT (SHORT-RELEASE) – 40%

This mid-semester assignment is compulsory.

Duration: 72 hours.  This is a short release 3000 (maximum) word assignment.  The 3000 word limit is not a target and is set only as a maximum so that students are not overly burdened with the issue of word limits. The assignment questions will be released to students on canvas at 5pm (Sydney, Australia time) on Tuesday, 18th April and due at 4:59pm (Sydney, Australia time) on Friday, 21st April.  Extensions, whether informal or otherwise, will not be granted by the Convenor or any individual lecturer/tutor.  Late penalties will apply as indicated below. 

Use of editors or proof-readers:

The use of assistance in preparing and editing assessment tasks in this unit of study is strictly prohibited. Assistance includes human and automated writing tools (not including spell checking).

Word Limit Penalty: A piece of assessment which exceeds the prescribed word limit will attract a penalty of 10% of the total marks available for the piece of assessment for every 100 words, or part thereof. The total word count for essay and other written assessments will exclude all footnotes and any bibliography (if required).

Special Consideration and Reassessment: The outcome of a successful special consideration application may include an alternative task such as a viva voce examination, at the discretion of the Unit Coordinator.  Any oral examination that takes place will be conducted by the Unit Coordinator together with another member of the teaching staff. 

Students must be available to attempt the reassessment, whatever form it may take, at the time and date that is set for it by the Law School. This is NOT at the individual student’s discretion.

Examinable Material: This will be advised during semester.

Consequences of Failure to Attempt this Assignment and Non-Submission: As this Assignment is compulsory, students who do not attempt or submit this assessment by the due time and date will not be eligible to pass this Unit of Study and will have recorded against them an overall Fail grade for this Unit. Accordingly, they will not be permitted to sit the Final Examination. To avoid this outcome, even if not complete, students must submit the latest version they have managed to complete by the due date and time in accordance with the Assignment instructions – so long as it can be regarded as a “satisfactory” attempt (even though it may receive a Fail grade). Late penalties, as indicated above, will apply if this version is submitted late.  

Preparation: Students must be preparing for this Mid-Semester Assignment right from the beginning of the semester, engaging with the cases and materials as per the Reading Guide and suggestions contained there as to what is required for preparation and personal study, as well as assistance provided in the classes. They will have ample time to prepare for it through personal study. (Given the complex nature of the material, students are strongly encouraged not to “fall behind” in their reading and study of the cases and materials each week.) Moreover, students will have access to their own notes, Unit notes and materials, and the prescribed texts in attempting the Assessment. 

B. FINAL EXAMINATION – 60%

This Examination is compulsory.   

Duration: 2.5 hours (plus 30 minutes reading time) during formal examination period.

Format of Exam: formal, in-person, invigilated examination during the formal University examination period. In the event of a change to University policy that requires a change to this format, students will be advised during the course of the semester.    

Special Consideration and Reassessment: The outcome of a successful special consideration application may include an alternative task such as a viva voce examination, at the discretion of the Unit Coordinator.  Any oral examination that takes place will be conducted by the Unit Coordinator together with another member of the teaching staff. 

Students must be available to attempt the reassessment, whatever form it may take, at the time and date that is set for it by the Law School. This is NOT at the individual student’s discretion.

Examinable Material: This will be advised during semester.

Consequences of Failure to Attempt this Examination and Non-Submission: The final Examination will be a formally invigilated in-person examination unless otherwise advised. As this Examination is compulsory, students who do not attempt and submit it by the due time and date will not be eligible to pass this Unit of Study and will have recorded against them an overall Fail grade for the Unit – even if they have otherwise attempted and received a Pass grade for the Mid-Semester Assignment. To avoid this outcome, even if not complete, students must submit the Examination answer they have managed to complete by the due time and date in accordance with the examination instructions – so long as it can be regarded as a “satisfactory” attempt (even if it receives a fail grade).  In a formal in-person examination setting, late penalties do not apply as no submission will be accepted by the invigilators after the due time and, in such a case, the student will not receive any marks for the Examination component of the assessment.  

Preparation: Students must be preparing for this Examination immediately following the Mid-Semester Assignment, engaging with the cases and materials as per the Reading Guide and suggestions contained there as to what is required for preparation and personal study, as well as assistance provided in the classes. Moreover, students will have access to their own notes, Unit notes and materials, and the prescribed texts in attempting the Examination.

Assessment requirement to pass a unit of study: A student must make a genuine attempt at all assessment tasks set out in this Unit of Study in order to obtain a Pass mark and grade (or above); otherwise an Absent fail grade will be recorded as the student's result for this Unit of Study.

Assessment criteria

The University awards common result grades, set out in the Coursework Policy 2014 (Schedule 1).

As a general guide, a high distinction indicates work of an exceptional standard, a distinction a very high standard, a credit a good standard, and a pass an acceptable standard.

Result name

Mark range

Description

High distinction

85 - 100

  • Completely answers the question.
  • Completely identifies all legal issues arising from the facts in the question.
  • Completely identifies all legal principles relevant to resolve the legal issues.
  • Identifies all uncertainties, nuances and gaps in the legal principles and developing jurisprudence of the Court in this regard.
  • Outstanding application of the law to the facts completely to resolve the legal issues arising from the facts.
  • Contains striking originality of approach or analysis.
  • Demonstrates exhaustive or innovative research (where independent research required).
  • Exceptionally well written, structured and expressed.
  • Is otherwise exceptional in some way.

Distinction

75 - 84

  • Excellent answer to the question.
  • Identifies all legal issues arising from the facts in the question.
  • Identifies all legal principles relelvant to resolve the legal issues.
  • Idntifies all uncertainties, nuances and gaps in the legal principles and developing juririsprudence of the Court in this regard.
  • Excellent application of the law to the facts completely to resolve the legal issues arising from the facts.
  • Achieves a critical and evaluative approach to the issues.
  • Content and structure is very well organised in support of the argument.
  • Demonstrates extensive research and analysis to support a well-documented argument (where independent research required).
  • Very well expressed and free from errors and omissions.
  • Has an excellent structure and is excellently articulated.

Credit

65 - 74

  • Covers main issues very well in answering the question.
  • Contains no significant errors.
  • Identies all the main critical legal issues arising from the facts of the question.
  • Identifies all the main legal principles relevant to resolve the legal issues.
  • Identifies most of the uncertainties, nuances and gaps in the legal principles and developing juririsprudence of the Court in this regard.
  • Good application of the law to the facts completely to resolve the legal issues arising from the facts.
  • Demonstrates an attempted critical approach to the issues.
  • Demonstrates reasonably sound research and analysis in addressing the key issues (when independent research required).
  • Has a clear structure and reasonably clear expression.

Pass

50 - 64

  • Identifies the key issues, but does not follow through with a reasoned and adequate argument in applying the law to the facts.
  • Contains some significant errors and/or omissions, or otherwise does not address the question accurately.
  • Displays only satisfactory engagement with the key legal issues and principles.
  • Offers only a descriptive summary of material and legal principles relevant to the question.
  • Superficial use of material and identification of legal issues and principles, and may display a tendency to paraphrase.
  • Covers most of the main issues adequately in answering the question.
  • Identifies all the key, essential and fundamental main legal issues arising from the facts of the question.
  • Identifies all the key and essential main legal principles relevant to resolve the legal issues.
  • Identifies only some of the uncertainties, nuances and gaps in the legal principles and developing juririsprudence of the Court in this regard.
  • Satisfactory application of the law to the facts to resolve the legal issues arising from facts.
  • Demonstrates little evidence of in-depth research or analysis (where such research is required).
  • Adequate expression.
  • Overall, demonstrates the minimum level of competence in the assessment and satisfies the requirements to proceed to higher-level studies in the degree or subject area.

Fail

0 - 49

  • Does not answer the question adequately or at all.
  • Contains significant or numerous errors or omissions.
  • Few or no identifiable arguments.
  • Content that is inappropriate or irrelevant.
  • Does not identify all the main critical legal issues from the facts of the question.
  • Does not identify all the main legal principles relevant to resolve the legal issues.
  • Does not identify the uncertainties, nuances and gaps in the legal principles and developing juririsprudence of the Court in this regard.
  • Poor application of the law to the facts to resolves the legal issues arising from the facts, or failure adequately to engage with the facts.
  • Lack of research or analysis (where such research required).
  • Poor or inadequate structure with respect to the resolution of the legal issues.
  • Poor or inadequate articulation of the resolution of legal issues and problems.
  • Difficult or impossible to understand through poor grammar, expression or structure.
  • Overall, does not demonstrate the minimum level of competence in the assessment.

For more information see guide to grades.

Late submission

In accordance with University policy, these penalties apply when written work is submitted after 11:59pm on the due date:

  • Deduction of 5% of the maximum mark for each calendar day after the due date.
  • After ten calendar days late, a mark of zero will be awarded.

This unit has an exception to the standard University policy or supplementary information has been provided by the unit coordinator. This information is displayed below:

Late Penalties (applicable only to the Mid-Semester Assignment) The late submission of the Mid-Semester Assignment will attract a penalty of 10% of the total marks available for the piece of assessment, ie 4 marks in this case, per calendar day or part thereof. For example, a submission after 4:59pm (due time) but by 11:59pm on the due date will attract a 10% penalty. A submission after midnight of the due date for submission will attract a 20% penalty. A submission on the following day after midnight will attract a 30% penalty, and so on. For example, if a student’s original mark is 28/40, a 10% penalty will reduce the mark to 24/40, a 20% penalty will reduce it to 20/40 and 30% penalty will reduce it to 16/40. Late penalties will be strictly applied. The date and time of submission as recorded by Canvas is taken as the official and final record of a student’s submission. Late penalties do not apply to a formal sit-down, invigilated examination and late submissions will not be accepted.

Academic integrity

The Current Student website provides information on academic integrity and the resources available to all students. The University expects students and staff to act ethically and honestly and will treat all allegations of academic integrity breaches seriously.

We use similarity detection software to detect potential instances of plagiarism or other forms of academic integrity breach. If such matches indicate evidence of plagiarism or other forms of academic integrity breaches, your teacher is required to report your work for further investigation.

Use of generative artificial intelligence (AI) and automated writing tools

You may only use generative AI and automated writing tools in assessment tasks if you are permitted to by your unit coordinator. If you do use these tools, you must acknowledge this in your work, either in a footnote or an acknowledgement section. The assessment instructions or unit outline will give guidance of the types of tools that are permitted and how the tools should be used.

Your final submitted work must be your own, original work. You must acknowledge any use of generative AI tools that have been used in the assessment, and any material that forms part of your submission must be appropriately referenced. For guidance on how to acknowledge the use of AI, please refer to the AI in Education Canvas site.

The unapproved use of these tools or unacknowledged use will be considered a breach of the Academic Integrity Policy and penalties may apply.

Studiosity is permitted unless otherwise indicated by the unit coordinator. The use of this service must be acknowledged in your submission as detailed on the Learning Hub’s Canvas page.

Outside assessment tasks, generative AI tools may be used to support your learning. The AI in Education Canvas site contains a number of productive ways that students are using AI to improve their learning.

Simple extensions

If you encounter a problem submitting your work on time, you may be able to apply for an extension of five calendar days through a simple extension.  The application process will be different depending on the type of assessment and extensions cannot be granted for some assessment types like exams.

Special consideration

If exceptional circumstances mean you can’t complete an assessment, you need consideration for a longer period of time, or if you have essential commitments which impact your performance in an assessment, you may be eligible for special consideration or special arrangements.

Special consideration applications will not be affected by a simple extension application.

Using AI responsibly

Co-created with students, AI in Education includes lots of helpful examples of how students use generative AI tools to support their learning. It explains how generative AI works, the different tools available and how to use them responsibly and productively.

WK Topic Learning activity Learning outcomes
Week 01 Introduction, distribution of powers in federation, principles of constitutional interpretation and characterisation; trade and commerce power (s 51(i) as case study. Seminar (3 hr) LO1 LO2 LO3 LO4
Week 02 Principles of constitutional interpretation etc (cont'd); and Inconsistency (s 109). Seminar (3 hr) LO1 LO2 LO3 LO4
Week 03 Inconsistency (s 109); and External Affairs (s 51(xxix)). Seminar (3 hr) LO1 LO2 LO3 LO4
Week 04 External Affairs (s 51(xxix)). Seminar (3 hr) LO1 LO2 LO3 LO4 LO5
Week 05 Corporations Power (s 51(xx)). Seminar (3 hr) LO1 LO2 LO3 LO4
Week 06 Corporations Power (s 51(xx)); and Freedom of Interstate Trade (s 92). Seminar (3 hr) LO1 LO2 LO3 LO4
Week 07 Freedom of Interstate Trade (s 92); and Taxation (+Excise) (ss 51(ii), 55, 90). Seminar (3 hr) LO1 LO2 LO3 LO4
Week 08 Taxation (+Excise) (ss 51(ii), 55, 90); and Grants (s 96). Seminar (3 hr) LO1 LO2 LO3 LO4
Week 09 Grants (s 96). Seminar (3 hr) LO1 LO2 LO3 LO4
Week 10 Defence (s 51(vi)) and the Doctrine in the Communist Party Case. Seminar (3 hr) LO1 LO2 LO3 LO4 LO5
Week 11 Defence (s 51(vi)) etc (cont'd); and the Implied Freedom of Political Communication. Seminar (3 hr) LO1 LO2 LO3 LO4
Week 12 Implied Freedom of Political Communication (cont'd); and Express Right (s 116 as case study). Seminar (3 hr) LO1 LO2 LO3 LO4 LO5
Week 13 Intergovernmental Immunities; and Race (s 51(xxvi)). Seminar (3 hr) LO1 LO2 LO3 LO4 LO5

Attendance and class requirements

Attendance: All students are required to attend 70% of classes (or as otherwise specified by the Unit Coordinator) to satisfy the pass requirements for each unit of study.  Failure to meet this requirement may result in a student being precluded from sitting the examination and will result in a Fail grade.

This is a full time compulsory course leading to professional accreditation.  Students are expected to attend every class subject to exceptional circumstances. Students are expected to plan well ahead with any other commitments, especially any work commitments, in order to be able to attend classes and to complete assessments on time, to attend both the mid-term test and the formal examination at the set time.  Work or social commitments, and such like, cannot and will not be taken into account in this regard.

Referencing: The Sydney Law School expects you to use the Australian Guide to Legal Citation (4th edition, 2018) for your footnoting style, although you should confirm this with your lecturer, and a link to the library website where this is set out comprehensively is available at https://libguides.library.usyd.edu.au/c.php?g=508212&p=3476376 

Study commitment

Typically, there is a minimum expectation of 1.5-2 hours of student effort per week per credit point for units of study offered over a full semester. For a 6 credit point unit, this equates to roughly 120-150 hours of student effort in total.

Required readings

All readings for this unit can be accessed through the Library eReserve, available on Canvas under ‘Reading List’

Prescribed Text: 

Aroney, Murray et al, Winterton’s Australian Federal Constitutional Law: Commentary and Materials (Thomson Reuters (Law Book Co), 5th ed, 2022), “the casebook”.  

This may be supplemented by resources added to Canvas.   

Reference Works: 

J Stellios, Zines’s The High Court and the Constitution (Federation Press, 7th ed, 2022).  This is the standard scholarly text and it is highly recommended that students spend time with this book, at least with respect to the topics covered by this course.  It is the outstanding text in the field and informs the content of the lectures. 

The most recent reference work, and very helpful to students, is Hanks, Gordon and Hill, Constitutional Law in Australia (LexisNexis, 4th ed, 2018).

Aroney et al, The Constitution of the Commonwealth of Australia - History, Principle and Interpretation (Cambridge University Press, 2015).   

Booker, Glass and Watt, Federal Constitutional Law:  An Introduction (Butterworths, 2d ed, 1998): highly recommended, although it is slightly dated. It greatly assists in understanding fundamental principles and the “grammar” of constitutional law.

Learning outcomes are what students know, understand and are able to do on completion of a unit of study. They are aligned with the University's graduate qualities and are assessed as part of the curriculum.

At the completion of this unit, you should be able to:

  • LO1. recognise and resolve constitutional law issues by applying a detailed knowledge of the substantive content of constitutional law, the casebook method, and an understanding of the 'grammar' or modes of argument within constitutional law.
  • LO2. analyse new constitutional law problems and case law in light of acquired knowledge of interpretational methodology in constitutional law.
  • LO3. demonstrate a minimum basic knowledge to be able to practice in the field of constitutional law by being able to recognize and apply constitutional law principles, and to identify and resolve complex legal issues arising in this area.
  • LO4. reason with enhanced and rigorous legal analytical skills, as developed in the context of constitutional law.
  • LO5. write clearly, succinctly, precisely, and persuasively by identifying constitutional issues within complex fact scenarios and resolving these through application of the law (settled and as it may develop).

Graduate qualities

The graduate qualities are the qualities and skills that all University of Sydney graduates must demonstrate on successful completion of an award course. As a future Sydney graduate, the set of qualities have been designed to equip you for the contemporary world.

GQ1 Depth of disciplinary expertise

Deep disciplinary expertise is the ability to integrate and rigorously apply knowledge, understanding and skills of a recognised discipline defined by scholarly activity, as well as familiarity with evolving practice of the discipline.

GQ2 Critical thinking and problem solving

Critical thinking and problem solving are the questioning of ideas, evidence and assumptions in order to propose and evaluate hypotheses or alternative arguments before formulating a conclusion or a solution to an identified problem.

GQ3 Oral and written communication

Effective communication, in both oral and written form, is the clear exchange of meaning in a manner that is appropriate to audience and context.

GQ4 Information and digital literacy

Information and digital literacy is the ability to locate, interpret, evaluate, manage, adapt, integrate, create and convey information using appropriate resources, tools and strategies.

GQ5 Inventiveness

Generating novel ideas and solutions.

GQ6 Cultural competence

Cultural Competence is the ability to actively, ethically, respectfully, and successfully engage across and between cultures. In the Australian context, this includes and celebrates Aboriginal and Torres Strait Islander cultures, knowledge systems, and a mature understanding of contemporary issues.

GQ7 Interdisciplinary effectiveness

Interdisciplinary effectiveness is the integration and synthesis of multiple viewpoints and practices, working effectively across disciplinary boundaries.

GQ8 Integrated professional, ethical, and personal identity

An integrated professional, ethical and personal identity is understanding the interaction between one’s personal and professional selves in an ethical context.

GQ9 Influence

Engaging others in a process, idea or vision.

Outcome map

Learning outcomes Graduate qualities
GQ1 GQ2 GQ3 GQ4 GQ5 GQ6 GQ7 GQ8 GQ9

This section outlines changes made to this unit following staff and student reviews.

- Minor amendments to unit curriculum to align with LAWS2011 (units now co-taught) - Learning outcomes amended to reflect more closely skills - Assessment aligned with LAWS2011

Students are required to have completed Public Law prior to enrolment (LAWS5007).

Teacher consultation guidelines: Please contact lecturers in class or by email. Please use your University of Sydney email address, not a private email address. Students should provide their student identification number and their name when corresponding with academic staff.

 

Disclaimer

The University reserves the right to amend units of study or no longer offer certain units, including where there are low enrolment numbers.

To help you understand common terms that we use at the University, we offer an online glossary.