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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: 10 November 2023