70616: Australian Constitutional Law

Constitutional law was a bit of a pet subject for me this semester.  I did the extra work, and got the better mark.  At the beginning of the semester, though, I wouldn’t have picked that it was going to be one of my favorite subjects.


ss 51(xxxii – xxxix) – Australia federated so we could catch a subway from Melbourne to Sydney.

The first few lectures were absolutely boring — the subject seemed chalk dry and any hope I had of us discussing the constitutional accuracy of “the Castle” seemed dashed.  We talked about issues that, whilst relatively interesting, seemed disconnected from the subject — how could we problem solve about whether Aboriginal Australians were to be represented in the preamble to the constitution?  The first few lectures seemed like a collection of bits and bobs somewhat related to the constitution.

Then we got our assignment.  Then we learned characterisation of the law, inconsistencies and about the separation of powers and rights issues.  Then the subject got interesting.

Our assignment was on the right to vote in Australia — did it exist (as an express or implied right), to what extent was it protected and did it need to be protected?  We were asked to assess our right with regards to certain criteria (i.e. defining franchise, the “value” of a vote, etc.). I deduced that, currently, we have an implied constitutional right to vote which is supported by our international treaty obligations, our common law and current legislation.  Further, I assessed that whilst other countries (e.g. South Africa) have a constitution which protects the right to vote more expressly, this alone cannot be the measure of success of a country’s democracy.  The strength of Australia’s democracy lay in its voter turnout (top 1% of the world, in those terms) and in the stability of the Australian political system.

That is, I wrote that we are a country where this right is unprotected, but where democracy is still strong.  My reference to international constitutions helped me excel in this assignment (HD), not because they were especially important, but because they helped differentiate my essay.  Find a way to differentiate your assignment, and you will do well.  Here’s my assignment: onlineword doc 70616Asst1, enjoy!

For class participation, you can get <16/20 easily, as long as you listen in lectures and scratch out an outline of answers before the tutorial.  I found that Lumb and Moens’ annotated constitution helped immensely in this (as well as in my final exams, and in researching my assignment, definitely the most important textbook to buy).

The rest of the subject comes down to characterisation, inconsistency, the separation of powers and rights. Basically, we ask these questions (formulated into a flowchart by Mr Geoff Holland (the head lecturer for the subject, and an amazing teacher):

  1. Is there a federal law — does it fall under a commonwealth head of power?
  2. Is there a state law — is there an inconsistency between the two?
  3. Are there any separation of power or rights issues?

With this framework of three questions, we can answer any problem question they throw at us.  We spend a good 70% of the course time studying the breadth of different heads of power, so this question is crucial.  However, even though we only study questions 2 and 3 for a couple of weeks each, they are disproportionately represented in exams, so all must be revised.  Theses are all summarised in my notes: 70616notes.

If you want to do well in this subject, differentiate your assignment, speak up in class and write a decent exam.

Revise by writing as many practice papers as you can, and going over them with your tutor (I had Mr Buanamano, but I asked Geoff Holland to go over my practice questions with me, since he explained things in a way which clicked with me).  Do as many characterisation questions as you can, at least one per head of power.  Remember your inconsistency and don’t forget your fiddly bits with federal courts, and how they are different from state courts in the powers they can exercise and their limitations.  There will almost always be an implied right to political communication question, so, out of the rights, this one is paramount.  Sprinkle, if you can, a few dissenting judgements (e.g. Murphy J on religion in The Scientology Case) and a couple of current cases, and you will do well in your exam.

This is a subject you can do well in, if you do your work and formulate your own opinions (obviously, backed up by legal argument).


2 responses to 70616: Australian Constitutional Law


    Hi! I was just wondering if you still had the practice questions you had done just cos I want to get a better understanding as to how questions should be approached. Thanks!


      There are a few scattered on the dropbox, in the consittutional law folder?

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