LAWS3000 – Constitutional Law

2023 – Session 1, Online-scheduled-weekday

General Information

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Unit convenor and teaching staff Unit convenor and teaching staff
Andrea Dolcetti
Carlos Bernal-Pulido
Lecturer and Tutor
Catherine Greentree
Lecturer and Tutor
Jemimah Roberts
Lecturer and Tutor
Ashleigh Barnes
Holly Doel-Mackaway
Credit points Credit points
Prerequisites Prerequisites
20cp in LAW or LAWS units at 2000 level
Corequisites Corequisites
Co-badged status Co-badged status
Unit description Unit description

This unit introduces students to fundamental principles of constitutional law and practice in Australia, including the basic structures of representative and responsible government, the structure and content of the Constitution of the Commonwealth of Australia and the relationship between the Commonwealth and the States. The unit places constitutional principles and doctrines in a wider context by exploring some of the questions that arise in relation to the framework for law and government in Australia. These include: federalism; democracy and citizenship; the rule of law; parliamentary sovereignty; and the relationships among the legislative, executive and judicial powers.

Important Academic Dates

Information about important academic dates including deadlines for withdrawing from units are available at

Learning Outcomes

On successful completion of this unit, you will be able to:

  • ULO1: Analyse central constitutional law concepts, structural features, and implications arising from the constitutional text.
  • ULO2: Identify constitutional law principles within cases.
  • ULO3: Assess different theories of constitutional interpretation and understand their relationship to different doctrinal positions.
  • ULO4: Evaluate what is necessary for a constitution, assessing current deficiencies and strengths in the Commonwealth Constitution.
  • ULO5: Apply constitutional law to new fact problems.

General Assessment Information

Late Assessment Submission Penalty    Unless a Special Consideration request has been submitted and approved, a 5% penalty (of the total possible mark) will be applied each day a written assessment is not submitted, up until the 7th day (including weekends). After the 7th day, a mark of‚ 0 (zero) will be awarded even if the assessment is submitted. Submission time for all written assessments is set at 11.55pm. A 1-hour grace period is provided to students who experience a technical issue.    This late penalty will apply to non-timed sensitive assessment (incl essays, reports, posters, portfolios, journals, recordings etc). Late submission of time sensitive tasks (such as tests/exams, performance assessments/presentations, scheduled practical assessments/labs etc) will only be addressed by the unit convenor in a Special consideration application. Special Consideration outcome may result in a new question or topic.

Assessment Tasks

Name Weighting Hurdle Due
Take Home Test 45% No 05/06/2023 9:00 am-12:00 m (3 hours)
Tutorial Participation 15% No Week 13
Essay 40% No 11/04/2023 by 23:55

Take Home Test

Assessment Type 1: Quiz/Test
Indicative Time on Task 2: 4 hours
Due: 05/06/2023 9:00 am-12:00 m (3 hours)
Weighting: 45%


A time-limited assessment involving written responses to problems of Constitutional Law


On successful completion you will be able to:
  • Analyse central constitutional law concepts, structural features, and implications arising from the constitutional text.
  • Identify constitutional law principles within cases.
  • Evaluate what is necessary for a constitution, assessing current deficiencies and strengths in the Commonwealth Constitution.
  • Apply constitutional law to new fact problems.

Tutorial Participation

Assessment Type 1: Participatory task
Indicative Time on Task 2: 20 hours
Due: Week 13
Weighting: 15%


Students will be assessed on their participation in tutorial debates, problem-solving, appropriate questioning, and understanding of the materials. This will require preparation before the tutorial – ie completing the required reading and preparing thoughts/answers to the tutorial materials.


On successful completion you will be able to:
  • Analyse central constitutional law concepts, structural features, and implications arising from the constitutional text.
  • Identify constitutional law principles within cases.
  • Assess different theories of constitutional interpretation and understand their relationship to different doctrinal positions.
  • Evaluate what is necessary for a constitution, assessing current deficiencies and strengths in the Commonwealth Constitution.
  • Apply constitutional law to new fact problems.


Assessment Type 1: Essay
Indicative Time on Task 2: 40 hours
Due: 11/04/2023 by 23:55
Weighting: 40%


Students will be required to engage in independent research to present a written response to a particular question of Constitutional Law.


On successful completion you will be able to:
  • Analyse central constitutional law concepts, structural features, and implications arising from the constitutional text.
  • Identify constitutional law principles within cases.
  • Assess different theories of constitutional interpretation and understand their relationship to different doctrinal positions.

1 If you need help with your assignment, please contact:

  • the academic teaching staff in your unit for guidance in understanding or completing this type of assessment
  • the Writing Centre for academic skills support.

2 Indicative time-on-task is an estimate of the time required for completion of the assessment task and is subject to individual variation

Delivery and Resources

Textbook: Sarah Joseph and Melissa Castan, Federal Constitutional Law: A Contemporary View (Thompson Reuters, 5th Edition, 2019).

Australian Constitution

Cases: AUSTLII for High Court Cases and all Australian legislation

Additional readings accesible via LEGANTO.

Unit Schedule

Week I. Australian Constitutionalism: Introduction and History

Online Lecture. Introduction

[1.10] Fundamental Concepts in Australian Constitutional Law  [1.85] Overview of the Constitution  [1.155] Cutting the Apron Strings: From Federation to the Australia Acts  [1.240] Conclusion

Live Lecture Welcome to the unit & A Historical Overview of Australian Constitutional Law and Indigenous Peoples

[1.60] From Colonisation to Federation  [14.10]: Indigenous Peoples and the Constitution

Week II. Judicial Review, Constitutional Interpretation, and Federalism  

Online Lecture. Judicial Review, Constitutional Interpretation, and Proportionality

Judicial Review [1.175] Judicial Review  Constitutional Interpretation

Proportionality [14.60] PROPORTIONALITY  [14.65] Parsing the proportionality inquiry  [14.70] Proportionality in the High Court  [14.75] Proportionality and characterisation  [14.80] Proportionality and constitutional guarantees  [14.85] Judicial deference to the legislature  [14.90] Conclusion on proportionality

Live Lecture. Indigenous Peoples’ Rights Across Constitutional Law

Week III. The Corporations Power, Federalism, and Characterisation

Online Lecture. The Corporation Power

[3.10] FROM HUDDART PARKER TO THE CONCRETE PIPES CASE  [3.15] CONSTITUTIONAL CORPORATIONS  [3.20] Foreign corporations  [3.25] Trading corporations  [3.30] Financial corporations  [3.35] Inactive corporations  [3.40] Conclusion on the definition of constitutional corporations  [3.45] SCOPE OF THE CORPORATIONS POWER  [3.50] The development of the broad and narrow views  [3.55] The Work Choices case  [3.60] The incidental scope of the corporations power  [3.65] The corporations power and natural persons  [3.70] Regulation of the creation of corporations  [3.75] Payments to corporations  [3.80] CONCLUSION

Live Lecture. Federalism, Constitutional Law of the States Territories, and Characterisation 

Federalism in Australia

Constitutional Law of the States and Territories

Characterisation of Commonwealth Laws

Week IV. The External Affairs Power

Online Lecture. The External Affairs Power

Chapter 4: The External Affairs Power [4.10] EXTRATERRITORIAL POWER  [4.15] RELATIONS WITH OTHER COUNTRIES  [4.20] IMPLEMENTATION OF TREATIES  [4.25] Ratification of treaties  [4.30] The effect of international treaties on Australian law  [4.35] Incorporation of treaties into domestic law  [4.40] Treaty ratification must be bona fide  [4.45] The need for a treaty “obligation”  [4.50] The specificity principle  [4.55] The conformity principle  [4.60] Implementation of international documents other than treaties  [4.65] MATTERS OF INTERNATIONAL CONCERN  [4.70] CUSTOMARY INTERNATIONAL LAW  [4.75] CONCLUSION

Live Lecture. International Law and Constitutional Law

The relationships between international and constitutional law in comparative perspective. Leading cases of the first four weeks

Week V. The Commonwealth Executive

Online Lecture.

[5.10] PERSONS WITHIN THE EXECUTIVE  [5.15] The reserve powers  [5.20] SCOPE OF EXECUTIVE POWER  [5.25] Execution and maintenance of the laws of the Commonwealth  [5.30] Execution of the Constitution  [5.35] Maintenance of the Constitution  [5.40] Inherent executive power: The common law  [5.45] Prerogative power  [5.50] Other common law executive powers  [5.55] The power to enter contracts and spend moneys  [5.60] The relationship between s 61 and common law executive powers  [5.63] No autonomous powers to detain  [5.65] The nationhood power 

Live lecture.

[5.70] Nationhood and expenditure  [5.75] Coercive nationhood power  [5.80] Commonwealth/State co-operation  [5.85] Conclusion on nationhood power  [5.90] CROWN IMMUNITY  [5.95] PRIVATISATION AND EXECUTIVE POWER  [5.100] CONCLUSION

Week VI. Separation of Judicial Power

Online Lecture.

[6.10] JUDICIAL POWER  [6.15] Enforceability  [6.20] Binding and conclusive decisions  [6.25] Need for a controversy  [6.30] Breadth or nature of discretion to be exercised  [6.35] Decisions regarding existing rights and duties  [6.40] Historical considerations  [6.45] Conclusion on judicial power and the “chameleon principle”  [6.50] JUDICIAL POWER OF THE COMMONWEALTH  [6.55] SEPARATION OF JUDICIAL POWERS – COMMONWEALTH  [6.60] Principle 1: Judicial power may only be exercised by Chapter III courts  [6.65] Principle 2: Federal courts may not exercise non-judicial power  [6.70] Wakim: Extension of the Boilermakers doctrine  [6.75] EXCEPTIONS TO THE TWO PRINCIPLES  [6.80] Exceptions to principle 1  [6.80] Delegation of judicial power  [6.85] Discrete exceptions  [6.90] Exceptions to principle 2  [6.95] Incidental powers  [6.100] Persona designata exception 

Live Lecture. Federal and State Separation of Powers

Separation of powers at federal level  [6.105] SEPARATION OF JUDICIAL POWERS – STATE  [6.110] The Kable principle and its subsequent application  [6.112] The revival of the Kable principle  [6.115] Persona designata and State judges  [6.120] Required characteristics of State courts  [6.125] The investiture of judicial power in non-judicial bodies at the State level  [6.130] Summary of the Kable doctrine at the State level  [6.135] CHAPTER III AS A SOURCE OF INDIVIDUAL RIGHTS  [6.140] The broader scope of the incompatibility doctrine  [6.145] Legislative usurpation of judicial power  [6.150] Powers to detain  [6.155] Powers of sentencing  [6.160] Retrospective criminal laws  [6.165] Implied right of legal equality  [6.170] Right to a fair trial  [6.175] SEPARATION OF JUDICIAL POWER IN THE TERRITORIES  [6.180] CONCLUSION

Week VII. Inconsistency

Online Lecture.

[7.10] WHAT IS A “LAW” FOR THE PURPOSES OF SECTION 109?  [7.15] MEANING OF “INVALIDITY”  [7.20] TESTS FOR INCONSISTENCY  [7.25] IMPOSSIBILITY OF SIMULTANEOUS OBEDIENCE  [7.30] CONFERRAL OF RIGHTS  [7.35] INDIRECT INCONSISTENCY/COVERING THE FIELD  [7.40] Identification of the “field”  [7.45] Overlapping fields: The subject matter approach  [7.50] Commonwealth intention to cover the field  [7.55] Express intention  [7.60] Implied intention  [7.65] INCONSISTENT CRIMINAL LAWS  [7.70] REASSESSING THE TESTS FOR INCONSISTENCY  [7.75] CONCLUSION

Live Lecture. Leading Cases I.

Week VIII. Intergovernmental Immunities

Online Lecture [8.10] PRELIMINARY ISSUE: CROWN IMMUNITY  [8.15] THE EARLY LAW: THE DOCTRINE OF IMPLIED IMMUNITIES  [8.20] THE ENGINEERS CASE: ABANDONMENT OF IMPLIED IMMUNITIES  [8.25] COMMONWEALTH LEGISLATIVE POWER OVER THE STATES  [8.30] The State Banking case  [8.35] Discriminatory laws  [8.40] Indirect discrimination  [8.45] “Rational” discrimination  [8.50] Prohibition on the impairment or curtailment of a State’s capacity to function as a government  [8.55] Austin v Commonwealth: A reformulation of the test for State immunity?  [8.60] STATE LEGISLATIVE POWER OVER THE COMMONWEALTH  [8.60] Reciprocity  [8.65] The folly of Cigamatic: Reciprocity abandoned  [8.70] The “affected by” doctrine  [8.75] Section 64 of the Judiciary Act  [8.80] The criminal law exception  [8.85] A reformulation of Cigamatic: The Residential Tenancies Tribunal case  [8.90] CONCLUSION 

Live Lecture: Leading Cases II.

Week IX. Excise Duties, Spending Government Revenue – The Grants and Appropriations Powers

Online Lecture. Excice Duties

[9.10] DEFINITION OF A “TAX”  [9.15] THE BROAD AND NARROW DEFINITIONS OF “EXCISE”  [9.20] The differing views regarding the purpose of s 90  [9.25] History of the definition of “excise”: From Peterswald to Parton  [9.30] Exceptions to the broad view  [9.35] The “criterion of liability” approach  [9.40] Consumption taxes  [9.45] THE MODERN CASES  [9.45] The demise of the criterion of liability and the triumph of the broad view  [9.50] Hematite Petroleum  [9.55] Philip Morris  [9.60] Capital Duplicators  [9.65] Ngo Ngo Ha  [9.70] The minority: Reviving the narrow view of excise  [9.75] CONCLUSIONS: THE FUTURE FOR SECTION 90?

Live Lecture. Grants and Appropriation and Expenditure

[10.10] SECTION 96 GRANTS  [10.15] Background to s 96  [10.20] Types of grants  [10.25] The scope of the grants power  [10.30] The Uniform Tax cases  [10.35] Are there any limits to s 96?  [10.40] Conclusion on s 96  [10.45] APPROPRIATION AND EXPENDITURE  [10.50] Appropriations power  [10.55] Power to spend appropriated moneys  [10.60] Conclusion on appropriations and spending

Week X. Freedom of Interstate Trade, Commerce, and Intercourse

Online Lecture.

[11.10] A BRIEF HISTORY OF SECTION 92  [11.15] “Trade and commerce”  [11.20] Early interpretations of s 92  [11.25] The “individual rights” approach and consequent confusion  [11.30] A FRESH START FOR SECTION 92  [11.35] The triumph of the “free trade” theory  [11.40] What is “discrimination”?  [11.45] What is “protectionism”?  [11.50] Export restrictions and s 92  [11.55] Proportionate regulation as an exception  [11.60] A new direction for s 92? Betfair 1  [11.65] Betfair 2: Discrimination against who or what?  [11.70] Conclusion  [11.75] FREEDOM OF INTERSTATE INTERCOURSE  [11.80] SECTION 92 AND THE TERRITORIES

Live Lecture. Leading Cases III.

Week XI. Express Rights

Online Lecture.

[12.10] ACQUISITION OF PROPERTY ON JUST TERMS – SECTION 51(XXXI) [12.15] “Property” for the purposes of s 51(xxxi) [12.20] “Acquisition of property”: A compound conception [12.25] Acquisition vs deprivation: What needs to be acquired? [12.30] Common law choses in action [12.35] Statutory proprietary rights [12.40] Exceptions to s 51(xxxi) [12.45] “Just terms” [12.50] Acquisition for the purposes of the Commonwealth [12.55] Application of s 51(xxxi) within the Territories [12.60] Conclusion on s 51(xxxi)

Live Lecture. 

[12.65] THE RIGHT TO TRIAL BY JURY – SECTION 80 [12.70] FREEDOM OF RELIGION – SECTION 116 [12.75] Definition of “religion” [12.80] Establishment of a religion [12.85] Laws “for” prohibiting the free exercise of any religion [12.90] Requirement of religious tests a qualification for any office or public trust under the Commonwealth [12.95] DISCRIMINATION ON THE BASIS OF INTERSTATE RESIDENCE – SECTION 117 [12.100] Exceptions to s 117 [12.105] NO EXPRESS RIGHT TO VOTE [12.110] CONCLUSION

Week XII. Implied Political Rights and Freedoms

Online Lecture. [13.10] THE COMMUNIST PARTY CASE   [13.60] VOTING EQUALITY AND VOTING RIGHTS  [13.65] Voting equality  [13.70] Voting rights  [13.75] CONCLUSION

Live Lecture. 

[13.15] FREEDOM OF POLITICAL COMMUNICATION  [13.20] The source of the freedom  [13.25] The scope of the freedom  [13.30] The first stage of the Lange test: What is “political communication”?  [13.35] The second stage of the Lange test: Limits to the implied freedom  [13.40] Revisiting the second stage of Lange; the cases of McCloy and Brown  [13.45] Operation of the freedom  [13.50] The nature of the freedom  [13.55] FREEDOMS OF MOVEMENT, ASSOCIATION AND PARTICIPATION 

[14.40] CONSTITUTIONAL PROHIBITIONS ON DISCRIMINATION  [14.45] Direct and indirect discrimination  [14.50] “Reasonable” discrimination  [14.55] The limited nature of constitutional prohibitions on discrimination.

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Unit information based on version 2023.01R of the Handbook