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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.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have an advanced and integrated understanding of the legal principles of Australian constitutional law in the subject areas
- Be able to critically examine, analyse, interpret and assess principles of constitutional law in the subject area
- Be an engaged participant in debate regarding emerging and contemporary issues in the field, such as the nature and extent of freedom of political communication, the role of freedom of religion in the Constitution, the importance and nature of constitutional rights and proposals for constitutional reform in relation to rights
- Have the cognitive and technical skills to generate critical and creative ideas relating to the subject area and to critically evaluate existing legal theories, principles and concepts
- Have the cognitive and technical skills to independently examine, research and analyse existing and emerging legal issues relating to constitutional law in the subject area
- Have the communication skills to clearly articulate and convey complex information regarding the subject area to relevant specialist and non-specialist audiences
- Be able demonstrate autonomy, expert judgment and responsibility as a practitioner and student in the field of constitutional law.
Last updated: 6 December 2019