Advanced Constitutional Law (LAWS90161)

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.