HD and Dean's List Full Course Notes

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HD and Dean's List Extensive Complete Course Notes. Covering every topic and lecture for the whole term. Topics covered: Weeks 1 and 2 (Constitutionalism and the Rule of Law): What is constitutionalism (distributing and limiting government power), legal vs political constitutionalism comparison table (Engineers Case vs Plaintiff S157/2002), flexible vs rigid constitutions (Dicey's distinction, UK vs Australian Constitution), formal vs substantive rule of law (Tamanaha), rule of law and access to justice (R (UNISON) v Lord Chancellor : Lord Reed on unimpeded access to courts), rule of law and parliamentary sovereignty (Dicey's complementary view, principle of legality as bridge), Julius Stone on the ethical element of the rule of law, French CJ on rule of law as necessary but insufficient condition for rights protection. Week 2 (Australia as a Constitutional Hybrid): Westminster vs American influences comparison table (responsible government, representative government, parliamentary sovereignty, constitutional conventions, constitutional monarchy vs written constitution, federalism, separation of powers, judicial review, rigid constitution), Leyland on the UK's organic constitution vs the manufactured US Constitution. Westminster features: responsible government theory (Blackham and Williams), chain of accountability (people, Parliament, executive, public servants), s 64 Constitution, collective vs individual ministerial responsibility table, responsible government in practice (Egan v Willis (1998) 195 CLR 424: legislative council's power to scrutinise; Egan v Chadwick (1999) 46 NSWLR 563: legal advice accessible, Cabinet documents excepted). Parliamentary sovereignty: Dicey's three propositions, internal and external limits, critics (Jennings, TRS Allan), R (Jackson) v Attorney-General on legal limits to sovereignty, State Parliaments and parliamentary sovereignty, BLF Case (1986) 7 NSWLR 372 (Street CJ and Kirby P), rejection in Union Steamship v King (1988) 166 CLR 1. Constitutional conventions: definition (Barber), Australian examples, Governor-General and reserve powers (Winterton, Republic Advisory Committee 1993, 1975 constitutional crisis). American features: separation of powers (Gageler, horizontal vs vertical separation table, Commonwealth Constitution Chapters I to III), judicial review (Marbury v Madison 5 US 137 (1803): Marshall CJ, application in Australia, Fullagar J in Communist Party Case). Week 3 (Federation, Popular Sovereignty and Indigenous Sovereignty): Federation: Dicey's two conditions for a federal state, three consequences of a federal constitution, Dicey's characterisation of federalism (weak, conservative, legalistic government with critique), division of legislative power (s 51 specific powers, s 52 exclusive powers, concurrent powers and s 109 inconsistency, s 107 residual State powers), Engineers Case (1920) 28 CLR 129 (implied immunity of instrumentalities and reserved State powers swept away, textual and purposive interpretation, political constitutionalism), federalism debate on a Bill of Rights (Galligan and Walsh: federalism as de facto Bill of Rights; Williams and Hume: inadequacy of common law and political process). Popular sovereignty: Lindell on binding nature of Constitution (1900 vs 1986 answers), Deane J in Theophanous v Herald (1994) on legitimacy through adoption and acquiescence, problems with popular sovereignty claims (Williams: women and Aboriginal exclusion from 1901 referenda, McGinty v Western Australia (1996) on unequal vote value, Irving on federation as broadly participatory for its time). Acquisition of legal independence: Colonial Laws Validity Act 1865, Statute of Westminster 1931 (adopted 1942), Australia Acts 1986 (Cth and UK), full independence timeline table. Indigenous sovereignty and Crown sovereignty: terra nullius and the historical position, Mabo v Queensland (No 2) (1992) 175 CLR 1 (recognition of pre-existing system of law, native title until extinguished), Milirrpum v Nabalco (1971) rejection of land rights, external vs internal Indigenous sovereignty comparison table, Mansell (Treaty and Statehood 2016) on Aboriginal sovereignty existing in 1788, Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (continuity of laws and customs required; Crown sovereignty prevents new rights), Walker v New South Wales (1994) 182 CLR 45 (Australian law does not accommodate parallel legal system), comparative US approach (Worcester v Georgia 31 US 515 (1832): residual sovereignty; Oliphant v Suquamish Indian Tribe 435 US 191 (1978)), treaty approaches (Brennan, Behrendt, Strelein and Williams; French CJ 2009). The Uluru Statement from the Heart (2017): twelve regional dialogues, 1,200 Indigenous participants, co-existing sovereignty, Voice to Parliament, Makarrata Commission, relationship to sovereignty theory and Yorta Yorta. Weeks 3 and 4 (Indigenous Voting and the Legislature): Historical exclusion of Aboriginal people from the franchise, two interpretations of s 41 comparison table (wide progressive vs narrow transitional: adopted in R v Pearson; Ex parte Sipka (1983)), history of Aboriginal voting rights to 1962 amendment. The 1967 referendum ( percent yes vote, repeal of s 127, extension of s 51(xxvi), what the referendum did NOT do: s 25 untouched, no positive recognition, dual-use power). Expert Panel Report (January 2012) and contemporary recognition process. Parliamentary structure (ss 1, 7, 24 Constitution). Disqualification from Parliament under s 44: five grounds, Sykes v Cleary (1992) 176 CLR 77 (office of profit under the Crown, leave without pay insufficient, 'being chosen' covers whole electoral process), Re Canavan and others HCA 45 (s 44(i) foreign citizenship, knowledge not required, citizenship determined by foreign law, reasonable steps requirement, Re Gallagher: procedural diligence insufficient). Voting and elections: constitutional basis ss 7 and 24, Commonwealth Electoral Act 1918 (Cth) s 93, implied right to vote (Roach v Electoral Commissioner (2007) 233 CLR 162: Gleeson CJ and Gummow, Kirby and Crennan JJ, substantial reason or rational connection test, Twomey's critique of Rowe). Purpose and proportionality test (3-step framework). Parliamentary privilege: Article 9 Bill of Rights 1688, Parliamentary Privileges Act 1987 (Cth) s 16(3). Week 7 (Statutory Interpretation): What is statutory interpretation and why it matters for constitutional law. Text, context and purpose: French CJ in Alcan (NT) Alumina (2009) 239 CLR 27, simultaneous not sequential approach, element table (text, context, purpose with sources), Project Blue Sky (1998) on consistent construction, Acts Interpretation Act 1901 (Cth) s 15AA (purposive approach). Principle of legality: Meagher (2011) 35 MULR 449 on Parliament and political cost, default rule of statutory construction, rights protected (access to courts, legal representation, privilege against self-incrimination, natural justice, retrospective liability, property rights), not a veto but a constructional rule imposing political cost, interaction with parliamentary sovereignty. Constitutional interpretation: judicial parsimony, reading down vs severance comparison table. Extrinsic materials: s 15AB Acts Interpretation Act 1901 (Cth), three conditions for use, limits (executive vs parliamentary intention). Weeks 7 and 8 (The Executive): The Crown (Lord Simon in Town Investments v Department of the Environment AC 359, federal executive structure). The Governor-General: s 2 Constitution, Letters Patent, convention of appointment on PM advice since 1930, reserve powers (established conventions and grey areas, 1975 Whitlam dismissal). Executive power (s 61 Constitution): three types. Prerogative power: Tomkins on closed list, Evatt's three categories (executive prerogatives, immunities and preferences, property rights). Nationhood power and the Williams cases. Statutory executive power: express and implied limits, Parliament cannot review merits. Contracting and spending: capacities doctrine, Pape and Williams cases requirement for connection to constitutional head of power. Control of the executive: conventions of responsible government, four challenges to responsible government in practice. Constitutional writs (s 75(v)): mandamus, prohibition, injunction, unamendable by Parliament. Executive accountability mechanisms table (parliamentary scrutiny, AAT, courts, Ombudsman, Auditor-General, FOI with type, strengths and weaknesses for each). Judicial review vs merits review comparison table (4 dimensions). Grounds for judicial review under AD(JR) Act 1977 (Cth) s 5 (7 grounds). Administrative tribunals: features, issues (Drake No 2, independence, formality). Commonwealth Ombudsman: reactive and proactive roles, 6 key features, jurisdictional limit of 'matter of administration'. FOI and transparency: Freedom of Information Act 1982 (Cth), single public interest test, right to reasons under AD(JR) Act. Whistleblowing: Public Interest Disclosure Act 2013 (Cth), conditions for protected external disclosure. Weeks 8 and 9 (The Judiciary): High Court as constitutional essential (Hannah v Dalgarno (1903) 1 CLR 1: Griffith CJ). Appointment (s 72(i) Constitution, High Court of Australia Act 1979 (Cth) ss 6 and 7, Williams (2008) 30 Syd LR 163 on opacity). Removal (s 72 double protection: good behaviour tenure, protected remuneration, retirement at 70, both Houses address, Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth)). What is judicial power: Huddart Parker v Moorehead (1909) 8 CLR 330 (Griffith CJ: 4 key elements), R v Trade Practices Tribunal; Ex parte Tasmanian Breweries (1970) 123 CLR 361 (Kitto J), Brandy v HREOC (1995) 183 CLR 245 (three distinguishing elements). Boilermakers Case (1956) 94 CLR 254: Limb 1 (non-judicial bodies cannot exercise federal judicial power) and Limb 2 (Chapter III courts restricted to judicial power and incidentals), rationale (federal distribution and individual liberty). Persona designata exception: Grollo v Palmer (1995) 184 CLR 348 (Brennan CJ: two conditions, consent and incompatibility; three sources of incompatibility). Judicial power and administrative tribunals: quasi-judicial functions permissible if unenforceable (Munro (1926)), Brandy v HREOC (registered determination would be judicial power). Separation of State judicial power: Kable v DPP (NSW) (1996) 189 CLR 51 (no formal separation at State level, but State laws cannot vest functions incompatible with Chapter III institutional integrity in State courts). Weeks 9 and 10 (Rights Protection and Constitutional Change): Human rights: Henkin's definition (Age of Rights 1990), negative vs positive rights comparison table (ICCPR vs ICESCR). Australian rights protection through multiple mechanisms list (international law, Commonwealth discrimination legislation, express constitutional provisions, implied rights, State and Territory bills of rights, principle of legality, integrity institutions). Failed attempts at a national bill of rights (1944, 1973, 1988, 2009 National Human Rights Consultation). ACT and Victorian human rights acts: dialogue model, parliamentary and judicial stages comparison table (compatibility statements, committee scrutiny, interpretation obligations, declarations of incompatibility). Federal Human Rights (Parliamentary Scrutiny) Act 2011 (Cth): ss 8 and 9, political not legal enforcement. Express constitutional rights: s 51(xxxi) just terms (acquisition, property, just terms, limit not source), s 80 trial by jury (narrow interpretation, Parliament controls mode of trial), s 116 freedom of religion (narrow scope, Commonwealth only, DOGS Case (1981), Kruger v Commonwealth (1997)). Implied freedom of political communication: structural implication from ss 7 and 24, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (two-step Lange test), refined in McCloy (2015), not an individual right but a limit on legislative power, examples of laws challenged. Constitutional change under s 128: referendum mechanism (two steps, double majority, additional requirements), referendum record (44 attempts, 8 successes, Labor not succeeded since 1946, bipartisan support rule), Williams and Hume on why referendums fail (don't know vote no, status quo bias, distrust of politicians). State constitutional amendment: McCawley principle (McCawley v The King AC 691 and Taylor v AG (Qld) (1917): State constitutions flexible, altered by ordinary legislation absent manner and form requirements), manner and form requirements (definition, binding successors, Attorney-General (NSW) v Trethowan (1931) 44 CLR 394: double entrenchment upheld), s 5 Colonial Laws Validity Act 1865 and manner and form proviso, Goldsworthy (Sovereignty of Parliament 1999) on ultimate institutional authority.