LAW3201: Constitutional Law

Either 90% Exam & 10% Tute Participation OR 60% Exam & 30% Research Assignment & 10% Tute Participation.

This is a core unit for all law students, so arguably there's not that much point in reviewing it since it's unavoidable either way, but I thought I'd try and summarise it in case anyone wants some sense of what consti is like.

With that in mind...the unit was okay, but not a favourite of mine. The assessment is pretty standard for core law units (optional essay & exam) except there is a tute participation mark of 10%. My first reaction to the tute mark was 'what is this, a first year subject? I have to actually show-up to tutes now?' but then I realised that I usually show up for tutes anyway, and that this is a plus since tute marks are pretty easy to get. You get 5 marks out of 10 for showing up to five tutes, and the other five marks are graded on the quality/quantity of your participation. Basic strategy here - jump in on the easy questions and answer a couple of them per class, and you should end up with a good mark out of 10. Did not do the optional assignment, so can't comment on that.

Lectures: Had Goldsworthy for the lectures. He knows his stuff very well and is happy to answer questions, although he does speak in something of a monotone voice which can make it hard to concentrate for long periods of time (he said that consti was sometimes seen as 'boring' by students, though if studied it could be interesting/exciting, although I never got the impression he found it exciting, not that I'd blame him or anyone else for not finding it so). Occasionally he'll crack a one-liner, although his sense of humour is dry. Really dry. Like, wheat-in-the-Sahara dry. I didn't listen to/attend any of the other streams so I can't really comment there, though I didn't hear anything bad about the other lecturers.

Content: This subject is all about the Constitution (the Federal one, no need to worry much about State ones) and the interpretation of it. So you basically study a number of Cth powers (e.g. External Affairs, Corporations power) and then limits on powers (Intergovernmental immunities, s92, Separation of Powers) - these two things being established through what's written/'implied' in the Constitution - and their subsequent interpretation. The interpretations/doctrines are basically all HC judgments (except for a Privy Council mention or two) which means a lot of long cases if you actually read them. There's usually only a case or two that you're supposed/required to read for each topic, so it's doable, but I personally don't think I actually read any cases in their entirety. Time-wise reading all the cases would not be very efficient - reading the key ones is useful though, especially for the policy aspect of the exam as it's hard to discuss a couple of specific decisions in answering a policy question without knowing a fair bit of detail about the cases. In terms of exam hypotheticals it's arguably less important that you've read the cases, as you can generally apply a good set of exam notes to a factual scenario without a strong in-depth knowledge of the lines of argument made individual cases. In terms of difficulty I'd place Consti around the mark of Property A. It's harder than torts/crim, but easier than Property B.

The topics: The first real (i.e. examinable) topic is Manner & Form, which actually concerns State Parliaments. It's not usually one of the bigger exam areas, although it can be a little confusing, although the nub of it is simply that State Parliaments can insert 'manner and form' provisions in Acts, providing for a certain stricter-than-usual manner of amendment of certain provisions of Acts (i.e. binding later Parliaments to higher thresholds when they try to make certain amendments). It may seem kinda complicated, but in the end it can be boiled down to a 4 or 5 step test that you just have to apply to your facts and conclude on, like pretty much all the topics in this unit. After MaF there's External Affairs (the first big topic, really) which relates to Cth powers. In summary, the Cth has very wide powers over EA, and can gain a lot of power through the ratification of international treaties (the limits on this ability are somewhat vague per the case law, and you'll likely spend some of your exam arguing it back and forth). The next head of Cth power, the Corporations Power, is similarly wide and similarly likely to appear on the exam in the form of questions about whether the Cth can regulate certain corporate entities and their employees - key cases to know here are ones like WorkChoices and Dingjan. Financial Powers is/was the last Head of Power topic, although it's somewhat smaller than EA/Corps powers and isn't really covered that well (no tute on it). The HC interpretations of all these heads of power will be discussed in detail, and there's usually some change between doctrines over the years - there'll be a majority in the HC for taking a particular side/position on the interpretation some issue, but then over time this will slowly change, before perhaps eventually even changing back the other way. There are usually a lot of grey areas and a lot of persuasive arguments on both sides in most topics, and it can be interesting arguing a position on these doctrines. It is sometimes interesting seeing how the position of the court gradually changes over time, and also how certain members of the court continually find novel arguments and end up disagreeing with one another (Kirby dissents at a record rate). A lot of the time I wasn't really that into it though, as I didn't have strong view either way.

Limitations on power are Intergovernmental Immunities, Separation of Judicial Power, Freedom of Interstate Trade and Commerce and the Implied Freedom of Political Communication. Much of the above applies for these topics. Again you get some degree of indecisiveness from the HC, albeit the span of decades. The IFPC is one of the most interesting topics, as the cases have interesting facts, and the sudden recognition of this entire doctrine has been quite controversial, although the case law for it is now fairly well settled. Lastly in the course, Section 109 holds that in the event of a conflict between the Cth and the States, the Cth prevails to the extent of the inconsistency. This semester one or more streams fell a bit behind, so this wasn't actually examinable/covered in detail, although it appears to be one of the smaller and simpler topics.

The Exam: Is another speed-writing contest. Typically three sections, two parts being hypotheticals with usually about 3 issues mixed into each of them (e.g. a couple of heads of power and limitations, or vice versa) though there have been as many as 4. The first key thing is to recognise all the issues, as otherwise a HD is basically out of the question, though you can still go ok if you miss one. As usual, apply all your relevant tests with case law and sections succinctly and argue it both ways on the facts before concluding. Try to apply it as much as possible and avoid copying out your notes - if you are too busy transcribing your notes then you just won't have enough time to apply, hence it's important to actually understand your notes so you can get down the relevant law as quickly as possible. Exam Policy, for those who didn't do the assignment (most) was two short-answer questions (30 mins each) out of four possible choices. As previously mentioned, policy may actually require an in-depth knowledge of lines of reasoning in specific cases, and how doctrines/interpretations by the HC have evolved over time, so it's probably worth reading some of the key cases (asterisks on the RG) for this. Mainly, avoid writing out your notes or some pre-prepared answer that doesn't quite fit the question, as examiners tend to hate this and usually note it as a negative in the Examiner's comments. Just try and form a thesis statement and argue it using your knowledge of the relevant cases and you should be ok for policy.

First semester it was Jeff Goldsworthy (chief examiner), Melissa Castan & Ronli Sifris, though there'll likely be some change to that line-up for S2 2014 since it's a different chief examiner.

Yes, several.

3 out of 5

Two streams out of three were recorded last semester.

The prescribed text is/was Federal Constitutional Law: A Contemporary View 3ed. (2010) by Joseph & Castan. It's not a bad book as far as law textbooks go. It's fairly succinct and doesn't overcomplicate things, while at the same time usually covering the relevant passages of judgments from HC cases. This makes it worth reading, as the cases in this subject are usually quite long and often arduous (as mentioned below). Other textbooks are recommended; I didn't read any, although they may be good for supplementing understanding of cases.

3hrs of lectures per week, plus 6 weeks of a 1hr tutorial (i.e. standard core law unit)

S1 2014

D