Constitutional Rights and Freedoms (LAWS90013)

Constitutional government is limited government. Government is limited by the establishment of rules governing its institutions and by dividing power along federal lines. Equally important are those aspects of constitutions that identify specific limitations on government. These constitutional law provisions and judicially created doctrines are the focus of this course. Constitutional rights, freedoms and limitations have been the subject of many of the most important High Court cases of recent decades. The subject will provide a thematic and in-depth discussion of those cases, including cases on freedom of political communication, voting rights, separation of judicial power (and its effect on federal and state courts), intergovernmental immunities, freedom of interstate trade in a federation and the rule of law as a limitation on power.

This subject will therefore explain and critically analyse the key contemporary questions relating to these areas of constitutional law in the context of ongoing debates in comparable jurisdictions. It will help students understand the current complexity and anticipate future developments in the High Court.

Principal topics include:

• The nature and extent of the ‘express limitations on power in the Australian Constitution including:
  • Freedom of religion
  • The right of trial by jury
  • Freedom of interstate trade
• The nature and extent of the separation of judicial powers in the Australian Constitution including the significance of the separation of judicial power for federal and state courts and for charters of rights (like the Victorian Charter of Rights and Responsibilities)
• The implication protecting representative and responsible government including the significance of the implication for voting rights, the financing of political campaigns and rights of protest in Australia
• Key methodological issues arising in the judicial interpretation of limitations on power including the role of proportionality analysis.