Handbook 1996 : Faculty of Law (Volume 3 page 214)
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Optional Law subject.
Prerequisite: Constitutional and Administrative Law.
Contact: 2 hours per week
Timetable: Both semesters
Objectives:
Students completing this subject should: be able to understand the major concepts, principles and rules applicable to each of the 12 broad aspects of Australian constitutional law studied in the course; be able to find relevant laws and precedents and apply them to resolve constitutional problems; understand the major constitutional issues facing Australia in the approach to the centenary of federation and be able to critically analyse a range of options for dealing with them; understand aspects of other selected constitutional systems applicable to Australia and be able to draw upon them for Australian use; have broad knowledge of the skills required in the practice of constitutional law including opinion-writing, constitutional fact-finding, preparation of an outline of argument and the conduct of constitutional litigation; and have experience in the oral presentation of constitutional argument and, if the student so chooses, experience with supervised research in depth on a constitutional question.
Content:
The course involves study and critical analysis of the institutions, laws, theory and practices of the Australian constitutional system within a framework provided by the 12 key issues identified by the Constitutional Centenary Conference 1991. Issues are considered in the following order: Head of State. The position of the Queen; the role of Governor- General and State Governors; the powers of the Head of State; models for an Australian republic; the significance of the concept of the Crown. Responsible Government and its Alternatives. The strengths and weaknesses of the present system of responsible government in Australia; alternative models; adaptations of responsible government. Effectiveness of Parliaments. Legislative and executive power contrasted. The nature of legislative power; the scope and characteristics of executive power; the sources and scope of federal executive power; the powers to contract and to spend; the nationhood power; practical realities. Treaty making as a case- study. The sources of power to enter into treaties; their effect on municipal law; the scope of the external affairs power; Australian procedures for treaty- making; other federations compared. Parliamentary reform. Current proposals for parliamentary reform; other options. Length of parliamentary terms. The rationale for extending the term of Parliament; logistical difficulties; fixed term parliaments. Trial by jury. The meaning of section 80 of the Constitution; section 80 as a case - study in judicial interpretation; the pros and cons of constitutional protection of trial by jury; options for reform. Guarantees of individual rights. Existing rights. Political rights; acquisition of property on just terms; freedom of religion; protection against discrimination; separation of judicial power; the position of the territories; proposals for reform. A Bill of Rights for Australia. How should individual rights be protected in a democratic society? The United States, Canada and New Zealand compared. Judicial independence. The meaning of judicial independence; models of protection in both Commonwealth and State Constitutions. Legislative Powers. Models for a federal division of legislative powers. Canada, Germany, European community compared. The strengths and weaknesses of each. Judicial interpretation of legislative powers. Environmental protection as a case study. Other issues in the interpretation of legislative powers. Paramountcy; the incidental power; co- operative arrangements. Intergovernmental immunities. Immunity of the Commonwealth from State laws and vice versa; the industrial relations power. Federal Economic Integration. The Australian model. The national market; economic management; uniform regulation; Ch. IV of the Constitution. Equality of regions Proposals for reform; the European Community compared. Accountability for taxing and spending; the allocation of tax powers, in law and practice; its effect on parliamentary government; proposals for reform. Aboriginal reconciliation. The legal position of the aboriginal people in the Australian constitutional systems; issues at stake in the reconciliation process. Initiation of constitutional amendments. Current procedures for constitutional change; their implications and effect; options for change.A further 4 classes on the practical skills required for the practice of constitutional law will be conducted during the year. As indicated above these skills include opinion writing, constitutional fact finding, conduct of constitutional litigation, the preparation of an outline of constitutional argument and also its oral presentation.
Assessment:
Research Assignment 10 000 words (100 per cent) or Final Exam 3 hours (100 per cent).
Prescribed texts:
Law subject : Next:730-330 | Prev:730-302 | Search | Help
Handbook 1996 : Faculty of Law (Volume 3 page 214)
Status: Official 1996 Date created: Oct 9 1995 Last modified: Oct 9 1995 Authorised by: Academic Registrar Email enquiries: Course_Information@registrar.unimelb.edu.au
Maintained by: Faculty of Law.
Copyright © University of Melbourne 1995,1996.