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This subject studies a select number of advanced topics in the field of constitutional law. It builds on the concepts and ideas introduced in Principles of Public Law and Constitutional Law. The focus of study will be the Australian constitutional system, but the subject will draw on insights from other jurisdictions. The subject thus also provides an introduction to the field of comparative constitutional law, which seeks to understand and evaluate the purposes and functions of constitutions using comparative analysis.
The aim of the subject is to interrogate a number of fundamental questions that arise in the field of constitutional law. Should a constitution have a bill of rights and, if so, which type? How should courts decide cases? What checks and balances should be imposed on the exercise of public power? Are constitutions effective at protecting human rights and democratic government? How easy should it be for future generations to amend a constitution? The subject will study these questions by drawing on relevant scholarly writings and judicial decisions.
The first part of the subject will investigate one of the bedrock principles of the Australian Constitution: judicial review. It will consider whether it is legitimate for courts to review primary legislation for compatibility with the Constitution. In doing so, it will investigate why this issue has a different degree of salience in the United States. This comparison will provide an opportunity to consider the potential benefits and methodological difficulties associated with the study of comparative constitutional law.
The second part of the subject will examine a range of structural features of the Australian Constitution. In particular, it will analyse the justifications for, and specific aspects of, federalism and the separation of powers. This analysis will be supplemented by consideration of these features in other countries such as Canada, Germany, the United Kingdom, and the United States.
The third part of the subject will examine a range of rights-related features of the Australian Constitution. In particular, it will consider some of the provisions not considered in detail in Principles of Public Law and Constitutional Law, such as trial by jury (s 80) and freedom of religion (s 116), and what challenges might arise if a bill of rights was to be included in the Constitution. This part will look at the lessons that can be taken from the experience of countries such as Canada, India, New Zealand, South Africa, and the United Kingdom.
Intended learning outcomes
A student who has successfully completed this subject will:
- have a comprehensive understanding of the different purposes and functions of the Australian Constitution;
- be able to identify in detail the benefits and challenges of undertaking comparative constitutional law analysis;
- have the ability to engage, in a nuanced and sophisticated manner, in doctrinal, theoretical and comparative analysis of constitutional structures and doctrines;
- be able to critically examine, analyse, and assess the role that different constitutional design choices have on the operation of a system of government;
- be able to critically examine, analyse, and assess the different approaches to interpreting the Australian Constitution; and
- be able to demonstrate autonomy, expert judgment and cultural sensitivity as a practitioner and learner in the fields of Australian and comparative constitutional law.
- On completion of the subject, a student will have developed and demonstrated their skills in the following areas: • cognitive skills to demonstrate mastery of theoretical knowledge and critical reflection in the context of academic and professional debates about the design and interpretation of constitutions; • cognitive, technical and creative skills to generate and evaluate complex ideas and concepts at an abstract level and the ability to translate those abstract ideas and concepts and apply them to practical problems and in assessment tasks; • communication and technical research skills to justify theoretical propositions, methodologies, conclusions and professional decisions to specialist audiences in the context of scholarly writing and/or professional advice in assessment tasks; • specialised ability to engage with primary legal materials from a wide variety of jurisdictions; and • highly developed intercultural sensitivity and understanding.
Last updated: 16 March 2020