A seven week, 4UOC course on selected topics in Australian constitutional law and conducted in seminar style. The first three weeks of the course centre on discussion and analysis of prepared materials. The remaining four weeks are allocated to student led seminars on topics selected for research essays. Emphasis is on recent constitutional litigation and material not developed in detail in compulsory courses. Issues for inclusion in the prepared materials and/or on the list of suggested research essay topics may include: status of Territories, contemporary problems about State Constitutions, just terms for acquisition of property, re-thinking the conciliation and arbitration power, technology and the Constitution, application of High Court decisions in lower courts, style and method in constitutional argument, developments on Chapter III, viability of proposals for amendment, standing in constitutional cases, amicus curiae, role of special leave in constitutional appeals.
Recommended Prior Knowledge
The course seeks to:
- Analyse important ideas in Australian constitutional law – especially those not dealt with in depth in other parts of the curriculum
- Provide an introduction to the methods and focus of contemporary constitutional scholarship and current judicial review
- Stimulate interest in constitutional research
- Introduction: Thomas v Mowbray: Background and overview. The document trail. High Court summary. Submissions. Linkage with essay topics
- Chapter III 'Matters': Definition of Chapter III matter. In Re Judiciary and Navigation Acts (1921) 29 CLR 527 (Advisory Opinions case). 'Matter' and the litigation in Re McBain; Ex parte Catholic Bishops Conference  HCA 16; 209 CLR 372. Interveners and amicus curiae. Concept of non-justiciability. Justiciability and the 'Tampa litigation' (Ruddock v Vadarlis  FCA 1329; 110 FCR 491.
- Aspects of Commonwealth Executive Power: (a) Section 61 and the 'Tampa' incident. French J theory on implied executive power in Ruddock v Vadarlis  FCA 1329; 110 FCR 491. The prerogative and implied executive power. (b) Australian military forces sent to Iraq. War powers prerogative and s 61. Power of Parliament to control the executive. Interpretation of s 68. Powers of US Congress and US President. Doe v Bush (2003).]
- Controlling subversive organisations in wartime: War Precautions Act 1914 (Cth) and regulations. Lloyd v Wallach (1915) 20 CLR 299. Unlawful Associations Act 1916 (Cth). Pankhurst v Kiernan (1917) 24 CLR 120. National Security Act 1939 (Cth) and regulations. Discussion of Lloyd v Wallach in WWII cases. Banning of Communist Party in WWII. Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116.
Research essay (4,000 words)
The book of prepared materials covering Discussion Topics 1 and 2 is available from the UNSW Bookshop. The material for the Introduction and Discussion Topic 3 will be distributed in class.
Refer to Course Outline provided by lecturer.