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LEGAL PROFESSION
ADMISSION BOARD
/ /LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
06 AUSTRALIAN CONSTITUTIONAL LAW
WINTER SESSION 2017
This Guide includes the Law Extension Committee’s course information and teaching program and the Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW Admission Board Rules 2015.
Course Description and Objectives / 1Lecturers / 1
Assessment / 2
September 2017 Examination / 3
Lecture Program / 4-7
Weekend Schools 1 and 2 / 8-9
Texts and Materials / 10
Prescribed Topics / 11
Compulsory Assignment / 11
Assignment Question / 11
Course Outline / 12-17
Case List / 18-22
Lecture Outlines / 23-32
Sample Examination Questions / 33-42
20
LAW EXTENSION COMMITTEE
/WINTER 2017
06 AUSTRALIAN CONSTITUTIONAL LAW
COURSE DESCRIPTION AND OBJECTIVES
Australian Constitutional Law is a public law subject. The focus of the course is upon its primary source the Commonwealth of Australia Constitution Act 1900 (Imp). It is that document which created the Commonwealth of Australia and preserved the former colonies as technically autonomous entities called States. It is the Constitution that provides a definition of public power in Australia. It divides legislative power between the Commonwealth and the States by conferring on the Commonwealth Parliament power to legislate "with respect to" particular topics. In the event of "inconsistency", the Commonwealth legislation prevails and the State law to the extent of the inconsistency is invalid.
The aim of the course is to explore the concept of federalism as embodied in the Constitution by examining a selection of important powers vested in the Commonwealth Parliament and exploring the limitations on those powers. The course will examine the nature of federal judicial power and the separation of powers doctrine, and will consider the extent to which the doctrine is embodied in Australian constitutional law. Finally, the course will explore the relationship between the Commonwealth and the States in terms of legislative power.
The topics chosen for treatment raise questions about the operation of a federal system of government and illustrate the practical workings of a federation.
LECTURERS
Graham Connolly BA (Hons)(Syd), LLB (Dean's Merit List)(UNSW) is a practising Barrister and a member of Blackstone Chambers. Graham has advised and appeared as counsel in constitutional, public law, national security, commercial and financial services matters. He is a graduate of the Universities of Sydney and New South Wales.
On completion of his university studies, Graham served as a Judge's Associate/Tipstaff to the Hon. Justice Austin of the Supreme Court of New South Wales and then to the Hon. Justice Callinan of the High Court of Australia. Prior to his call to the Bar, he was a corporate and securities lawyer at Atanaskovic Hartnell, where he worked on a variety of public law, corporate and commercial matters, capital raisings, mergers and acquisitions, as well as generalist legal and compliance advice work for public and private companies, particularly merchant banks and private equity investors.
Graham is a graduate of the Royal Australian Naval College and holds the Queen's Commission in the rank of Lieutenant Commander, Royal Australian Naval Reserve.
Professor Tony Blackshield AO, LLB, LLM (Hons) (Syd), LLD (Honorary) (Macq) began his teaching career at the University of Sydney. He was one of the seven foundation members of the Faculty of Law at the University of New South Wales, where he is now a Visiting Professorial Fellow. Tony is an Emeritus Professor of Law at Macquarie University, and a former Head of School there and also at La Trobe University where he was Professor of Legal Studies. He is an Honorary Professor of the Indian Law Institute in New Delhi.
Throughout his teaching career Tony has written extensively and has been a frequent public commentator on legal and constitutional issues. He was co-editor of The Oxford Companion to the High Court of Australia, published in 2001. From 1996 until the fifth edition in 2010, he joined with George Williams in producing the influential textbook Blackshield & Williams, Australian Constitutional Law & Theory (now in its sixth edition by George Williams, Sean Brennan and Andrew Lynch).
Tony is a Fellow of the Australian Academy of Social Sciences. In 2014 he was made an Officer of the Order of Australia.
ASSESSMENT
To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the Board. This gives you access to the full range of learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus.
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s performance in a subject in order for the student to be eligible to sit for the examination, conducted by the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for examinations. However, a category of “deemed eligible” has been introduced to offer students whose assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC engages the LPAB’s Examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted. Extensions must be requested by email prior to the due date. Specific supporting evidence must be provided. Assignments that are more than ten days late will not be accepted. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments will be returned to students and results posted on students’ individual results pages of the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their eligibility to sit for the examination.
Review
Where a student’s overall mark after the Examination is between 40-49%, the student’s assignment in that subject will be included in the Revising Examiner’s review. The final examination mark is determined in accordance with this review. Assignment marks will not otherwise be reviewed.
SEPTEMBER 2017 EXAMINATION
Candidates will be expected to have a detailed knowledge of the prescribed topics:
· Introduction;
· Federal legislative powers
· Separation of powers
· Executive power and national security law
· Identification of judicial and non-judicial power
· Jurisdiction and the Federal Judicature
· Express and implied prohibitions
· Implied freedom of political communication
· Commonwealth/State matters
· Inconsistency between Commonwealth and State laws.
In order to pass the examination, candidates will be expected to:
(A) have a thorough knowledge of all of the Constitution
(B) have a thorough knowledge of all of the relevant caselaw
(C) be able to examine a given problem's facts and identify the constitutional issues raised
(D) be able to express solutions to constitutional problems in an accurate, brief and clear manner
All enquiries in relation to examinations should be directed to the Legal Profession Admission Board.
LECTURE PROGRAM
Lectures in Australian Constitutional Law will be held on Mondays from 6.00pm until 8.30pm commencing on 8 May 2017. A map of the University of Sydney’s main campus showing the location of lecture venues (detailed below) can be found in of the Course Information Handbook.
This program is a general guide and may be varied according to need. Readings are suggested to introduce you to the material to be covered in the lecture, to enhance your understanding of the topic, and to encourage further reading. You should not rely on them alone.
LECTURE
/ TOPIC / KEY CASES AND READINGSWk 1
8 May
Carslaw
Lecture Theatre
159
(CLT 159) / Introduction / Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers' Case”) (1920) 28 CLR 129
Leask v Commonwealth (1996) 187 CLR 579
Melbourne Corporation v Commonwealth (“Melbourne Corporation Case”) (1947) 74 CLR 31
Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1
Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1
Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR 418
Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479
Blackshield & Williams, 2-4, 242-261 and 764-801.
Wk 2
15 May
Carslaw
Lecture Theatre
159
(CLT 159) / Trade and Commerce Power
(s.51(i)) / A-G (WA) v Australian National Airlines Commission (“Ansett Transport Industries Case”) (1976) 138 CLR 492
Airlines of New South Wales v New South Wales (No 2) (“Second Airlines Case”) (1965) 113 CLR 54
Australian National Airways v Commonwealth (1945) 71 CLR 29
O'Sullivan v Noarlunga Meat (1954) 92 CLR 565
Blackshield & Williams, 802-815
Wk 3
22 May
Carslaw
Lecture Theatre
159
(CLT 159) / Taxation power & s 55 / Air Caledonie International v Commonwealth (1988) 165 CLR 462
Australian Tape Manufacturers Association v Commonwealth (“Blank Tape Royalty Case”) (1993) 176 CLR 480
Elliott v Commonwealth (1936) 54 CLR 657
Fairfax v FCT (1965) 114 CLR 1
Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548
Victoria v Commonwealth (Second Uniform Tax Case) (1957) 99 CLR 575
Blackshield & Williams, 284-295 and 1010-1027
Wk 4
29 May
Carslaw
Lecture Theatre
159
(CLT 159) / Taxation continued
Commonwealth Spending / Pape v Federal Commissioner of Taxation (2009) 238 CLR 1
Williams v Commonwealth (“School Chaplains Case”) (2012) 248 CLR 156
Williams v Commonwealth (No 2) (2014) 252 CLR 416
Blackshield & Williams, 388-397, 406-414 and 1051-1067.
Wk 5
5 June
Carslaw
Lecture Theatre
159
(CLT 159) / Corporations Power / Actors and Announcers Equity Association of Australia v Fontana Films (“Actors Equity Case”) (1982) 150 CLR 169
New South Wales v Commonwealth (“Incorporation Case”) (1990) 169 CLR 482
New South Wales v Commonwealth; Western Australia v Commonwealth (2006) 229 CLR 1 (“Work Choices Case”)
R v Federal Court of Australia: ex parte Western Australian National Football League (“Adamson's Case”) (1979) 143 CLR 190
Strickland v Rocla Concrete Pipes (“Concrete Pipes Case”) (1971) 124 CLR 468
Blackshield & Williams, 815-844
Tony Blackshield, “New South Wales v Commonwealth: Corporations and Connections” (2007) 31 Melbourne University Law Review 1135
Wk 6
13 June / NO LECTURE DUE TO PUBLIC HOLIDAY
Study Break: Saturday 17 June 2017 – Sunday 2 July 2017
Wk 7
3 July
Eastern Avenue Lecture Theatre
315 / External Affairs
Defence Power
National Security / Australian Communist Party v Commonwealth (1951) 83 CLR 1
Commonwealth v Tasmania (“Tasmanian Dam Case”) (1983) 158 CLR 1
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
New South Wales v Commonwealth (“Seas and Submerged Lands Act Case”) (1975) 135 CLR 337
Polyukhovich v Commonwealth (“War Crimes Act Case”) (1991) 172 CLR 501
R v Burgess: ex parte Henry (1936) 55 CLR 608
Thomas v Mowbray (2007) 233 CLR 307
Victoria v Commonwealth (“Industrial Relations Act Case”) (1996) 187 CLR 416
Blackshield & Williams, 845-929
Wk 8
10 July
Eastern Avenue Lecture Theatre
315 / Inconsistency of Laws / Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466
Hume v Palmer (1926) 38 CLR 441
Ex parte McLean (1930) 43 CLR 472
Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237
Airlines of New South Wales Pty Ltd v NSW (No 2) (“Second Airlines Case”) (1965) 113 CLR 54
University of Wollongong v Metwally (1984) 158 CLR 447
R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338
Blackshield & Williams 297-307, 311-318, 321-327, 1082-1107 and 1113-1130
Wk 9
17 July
Eastern Avenue Lecture Theatre
315 / Duties of Excise
Freedom of Interstate Trade / Matthews v Chicory Marketing Board (Victoria) (1938) 60 CLR 263
Parton v Milk Board (Victoria) (1949) 80 CLR 229
Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529
Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599
Capital Duplicators Pty Ltd v ACT (No 2) (1993) 178 CLR 561
Ngo Ngo Ha v New South Wales (1997) 189 CLR 465
Blackshield & Williams, 1027-1050
Cole v Whitfield (1988) 165 CLR 360
Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411
Barley Marketing Board (NSW) v Norman (1990) 171 CLR 182
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436
Betfair Pty Ltd v Western Australia (2008) 234 CLR 418
Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217,
Blackshield & Williams, 1195-1226
Wk 10
24 July
Eastern Avenue Lecture Theatre
315
(TB) / Ch. III and the Separation of Powers
Federal Jurisdiction / R v Kirby; ex parte Boilermakers' Society of Australia (“Boilermakers Case”) (1956) 94 CLR 254; and (1957) 95 CLR 529
Waterside Workers Federation of Australia v JW Alexander (1918) 25 CLR 434
Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73
Kable v Director of Public Prosecutions (NSW)(1996) 189 CLR 51
Blackshield & Williams, 25-29, 490-500, 397-406
R v Bevan: ex parte Elias (1942) 66 CLR 452
In re Judiciary and Navigation Acts (1921) 29 CLR 257
Abebe v Commonwealth (1999) 197 CLR 510
Re Wakim; ex parte McNally (1999) 198 CLR 511
Blackshield & Williams, 267-274 and 437-464
Wk 11
31 July
Eastern Avenue Lecture Theatre
315
(TB) / Judicial Power of Commonwealth / Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Attorney-General (Commonwealth) v Breckler (1999) 197 CLR 83
R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361
R v Quinn; ex parte Consolidated Foods (1977) 138 CLR 1
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1
Kable v Director of Public Prosecutions (NSW)(1996) 189 CLR 51
Thomas v Mowbray (2007) 233 CLR 307
International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319
Blackshield & Williams, 502-517
Wk 12
7 Aug
Eastern Avenue Lecture Theatre
315
(TB) / Implied Freedom of Political Communication / Australian Capital Television v Commonwealth (No 2) (1992) 177 CLR 106
Lange v Australian Broadcasting Corp (1997) 189 CLR 520
Coleman v Power (2004) 220 CLR 1
Monis v The Queen (2013) 249 CLR 92
Unions NSW v New South Wales (2013) 252 CLR 530
McCloy v New South Wales (2015) 325 ALR 15
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
Blackshield & Williams, 1259-1273, 1284-1291, 1300-1311 and 1328-1335.
Wk 13
14 Aug
Eastern Avenue Lecture Theatre
315 / Commonwealth–State Relations / Melbourne Corporation v Commonwealth (“Melbourne Corporation Case”) (1947) 74 CLR 31
Victoria v Commonwealth (“Payroll Tax Case”) (1971) 122 CLR 353
Austin v Commonwealth (2003) 215 CLR 185
Pirrie v McFarlane (1925) 36 CLR 170
In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (“Uther’s Case”) (1947) 74 CLR 508
Re The Residential Tenancies Tribunal of NSW & Henderson; ex parte The Defence Housing Authority (“Henderson's Case”) (1997) 190 CLR 410
Blackshield & Williams 297-307, 311-318, 321-327, 1082-1107 and 1113-1130
WEEKEND SCHOOLS 1 AND 2
There are two weekend schools primarily for external students. Lecture students may attend but should be aware that weekend school classes aim to cover the same material as provided in weekly lectures and are primarily for the assistance of external students.