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Separation of Powers (LAWS70424)
Graduate coursework level 7Points: 12.5Not available in 2022
From 2023 most subjects will be taught on campus only with flexible options limited to a select number of postgraduate programs and individual subjects.
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Overview
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In the absence of an Australian bill of rights, the separation of powers doctrine is one of the key foundations for the imposition of restrictions on legislative and executive power in Australia.
This subject examines recent developments in the constitutional implications that prevent the conferral of non-judicial functions on federal courts, the conferral of federal judicial power on anyone other than courts, and the related implications concerning the constitution and functions of state courts, including limitations on legislative or executive directions to those courts.
The issues of substantive constitutional law will be examined through the prism of the law and practice that governs constitutional litigation in the High Court. The subject is structured by reference to a hypothetical case study in which participants will be taught to: identify the substantive issues arising from the case study; draft the main kinds of initiating process in the High Court; consider the choices involved in various procedural steps in constitutional litigation; draft submissions addressing those steps; identify the facts necessary to advance the selected constitutional arguments; address in detail, in the course of drafting written submissions and preparing oral submissions, the substantive questions of law that arise from the case study; and write a judgment disposing of the case study.
Principal topics include:
- The meaning of ‘judicial power’
- Aspects of the High Court’s original and appellate jurisdictions
- Separation of powers under the Commonwealth Constitution at the federal level
- The protection of state courts under the Commonwealth Constitution – Kable and cases developing or reformulating the Kable principle; also, Kirk.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have an advanced and integrated understanding of the principles relating to the separation of federal judicial power
- Be able to critically examine, analyse, interpret and assess the exceptions to the separation of powers principles, and be able to advise on how those principles are likely to apply
- Have a sophisticated appreciation of the constitutional protections applicable to state courts
- Have an advanced understanding of the various heads of original and appellate jurisdiction of the High Court, and the capacity of Parliament to limit those heads of jurisdiction
- Understand the procedural steps involving in initiating constitutional litigation, and the procedural steps and decisions required to prepare a matter for hearing before the High Court of Australia, and the various considerations that inform the drafting of written submissions
- Be able demonstrate autonomy, expert judgment and responsibility as a practitioner and learner in the field of constitutional law.
Last updated: 12 November 2022
Eligibility and requirements
Prerequisites
Melbourne Law Masters Students: This subject is an advanced constitutional law subject. It is not appropriate for students who have not previously studied constitutional law.
JD Students: Successful completion of the below subject:
| Code | Name | Teaching period | Credit Points |
|---|---|---|---|
| LAWS50028 | Constitutional Law | Semester 2 (Dual-Delivery - Parkville) |
12.5 |
Corequisites
None
Non-allowed subjects
None
Recommended background knowledge
Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.
Inherent requirements (core participation requirements)
The University of Melbourne is committed to providing students with reasonable adjustments to assessment and participation under the Disability Standards for Education (2005), and the Assessment and Results Policy (MPF1326). Students are expected to meet the core participation requirements for their course. These can be viewed under Entry and Participation Requirements for the course outlines in the Handbook.
Further details on how to seek academic adjustments can be found on the Student Equity and Disability Support website: http://services.unimelb.edu.au/student-equity/home
Last updated: 12 November 2022
Assessment
| Description | Timing | Percentage |
|---|---|---|
Two short assignments in advance of specified seminars (students are required to complete these assignments in order to pass the subject, but they are not assessed) Hurdle requirement | During the teaching period | N/A |
Take-home examination
| 18 - 21 November 2022 | 100% |
| Hurdle requirement: A minimum of 75% attendance. Note: the attendance hurdle does not apply when the subject is delivered online, however attendance at all live online sessions is expected. | Throughout the teaching period | N/A |
Last updated: 12 November 2022
Quotas apply to this subject
Dates & times
Not available in 2022
Additional delivery details
This subject has a quota of 30 students.
Enrolment is on a 'first in' basis. Waitlists are maintained for subjects that are fully subscribed.
Students should note priority of waitlisted places in subjects will be given as follows:
- To currently enrolled Graduate Diploma and Masters students with a satisfactory record in their degree
- To other students enrolling on a single subject basis, eg Community Access Program (CAP) students, cross-institutional study and cross-faculty study.
Please refer to the Melbourne Law Masters website for further information about the management of subject quotas and waitlists.
Melbourne Law School may reserve places in a subject for incoming international cohorts or where a subject is core to a specialisation with limited alternate options.
Last updated: 12 November 2022
Further information
- Texts
Prescribed texts
Specialist materials will be made available via the LMS in the pre-teaching period.
- Related Handbook entries
This subject contributes to the following:
Type Name Course Graduate Diploma in Legal Studies Course Master of Public and International Law Course Juris Doctor Course Graduate Diploma in Government Law Course Master of Laws - Links to additional information
- Available through the Community Access Program
About the Community Access Program (CAP)
This subject is available through the Community Access Program (also called Single Subject Studies) which allows you to enrol in single subjects offered by the University of Melbourne, without the commitment required to complete a whole degree.
Entry requirements including prerequisites may apply. Please refer to the CAP applications page for further information.
Additional information for this subject
If required, please contact law-masters@unimelb.edu.au for subject coordinator approval.
- Available to Study Abroad and/or Study Exchange Students
This subject is available to students studying at the University from eligible overseas institutions on exchange and study abroad. Students are required to satisfy any listed requirements, such as pre- and co-requisites, for enrolment in the subject.
Last updated: 12 November 2022