LAWS5101
CONSTITUTIONAL LAW
I. Constitutional Interpretation & Characterisation
II. Trade & Commerce Power III. Corporations Power IV. External Affairs Power
V. Defence Power VI. Taxation Power
VII. Appropriation & Expenditure VIII. Grants Power
IX. Chapter III Judicial Power
X. Implied Freedom of Political Communication XI. Intergovernmental Immunities
XII. Section 109 Inconsistency
WRITE EACH PART IN A DIFFERENT ANSWER BOOK
FORMAT & CONTENT
• (1) Section A: Essay Question o TWO questions
o Answer ONE o 10 marks o Content:
§ Fiscal powers – taxation, appropriation, spending and grants WILL be dealt with as an essay question.
• (2) Section B: Problem Question o TWO questions
o Answer TWO o 40 marks o Content:
§ Do not leave out areas of law as problem questions will draw together disparate areas.
GENERAL ADVICE
• (1) Time:
o Spend appropriate time on each question.
o 120 minutes TOTAL.
§ Reading: 5 mins
§ Section A: 25 mins
§ Section B(1): 45 mins
§ Section B(2): 45 mins
• (2) Length of exam:
o Substantive part of the exam is 2 pages.
HOW TO ANSWER A QUESTION
• (1) Section A: Essay Question o What is the question asking?
o Answer the question (make an argument).
§ Don’t say “it’s all very difficult”.
o If the question asks you to respond to a quote, engage with the quote.
§ I.e. make use of the words in the quote.
o Ensure that your answer is clearly structured.
• (2) Section B: Problem Question o Read question several times o Highlight key words
o Weight focus of answer
o When analysing, separate the different provisions of an Act/treaty!!!!!
§ Don’t have to set out tests again, and can use short hand.
§ This will ensure that purposes are distinguished and don’t get blurred.
INTERPRETATION: WHAT IS THE SCOPE OF THE HOP?
• (1) Early interpretation ➔ reserved State powers:
o In the early years of the Australian Commonwealth the ‘reserved State powers’ doctrine dictated that the grants of law-making power given to the Commonwealth should be narrowly
interpreted (e.g. R v Barger).
o However, this doctrine was ‘exploded’ in the Engineers Case:
§ Isaacs J in Engineers Case: ‘The Constitution must be read ‘naturally and in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it, then lucet ipsa per se’ (i.e. it shines from within).
• (2) Current approach ➔ legalism:
o ‘Legalism is widely accepted as the orthodox methodology for constitutional adjudication in Australia ... At its core is insistence that courts resolve questions before them by reference to standards drawn from a body of existing law and not on standards that are “subjective or personal” to a judge’
• (3) Jumbanna principle:
o ‘Where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should… always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.’
CHARACTERISATION: DOES THE LAW FIT WITHIN THE CONSTITUTIONAL HOP?
• The HOPs in s. 51 and 52 are divided into ‘subject matter’ powers and ‘purpose’ powers.
• Different test of characterisation is applied depending on how the HOP is categorised:
o Subject matter powers – ‘sufficient connection’ test.
o Purpose powers – ‘proportionality’ test.
SUBJECT MATTER POWER PURPOSE POWER Definition Powers that describe things like an
activity, type of person, a recognised category of legislation or an object.
Powers that involve the notion of purpose.
Test Sufficient connection test Proportionality test Difficulty of
the test
Sufficient connection is less demanding for the Commonwealth – only need the connection not to be tenuous or vague.
Proportionality is more difficult for the Commonwealth – need to look closely at what the legislation is doing (i.e. means and ends).
Examples • s. 51(i) – trade and commerce power
• s. 51(ii) – taxation power
• s. 51(xx) – corporations power
s. 51(vi) – defence power
s. 51(xxiv) – external affairs power
• (1) Most authoritative approach: Grainpool
o 1. Constitutional text must be construed ‘with all the generality which the words used admit’
(Australian National Airways)
o 2. The character of the law must be determined by reference to the rights, powers, liabilities, duties and privileges which the law creates
