SCHOOL OF LAW

COURSE OUTLINE

Session 1 2012

PUBLIC LAW

LAWS1140

Undergraduate CoreUnits of Credit: 3

Contact hours per week: 2

Convenor: Sean Brennan

Rm 322 Law Building (F8)Faculty of LawThe University of New WalesUNSW Sydney NSW 2052, AustraliaPh: (02) 9385 2334E: s.brennan@unsw.edu.au

Contents

Page

1 Course Information 2

1.1 Teaching Staff and Classes 2

1.2 The Relationship between Research and Teaching 5

1.3 Course Description 5

1.4 Aims 5

1.5 Expected Learning Outcomes 5

1.6 Learning Outcomes and Graduate Attributes 5

1.7 Teaching rationale 6

2 Assessment 6

2.1 Assessment Scheme 6

2.2 Assessment Criteria and Overall Grading 7

2.3 Assessment Timetable – Links to Learning Outcomes and GAs 9

2.4 Formal Matters 9

3 Course Schedule 9

3.1 Course Materials 9

3.2 Schedule of Topics 10

3.3 Guide to Reading 10

4 Additional Resources for Students 15

5 Continual Course Improvement 18

5.1 CATEI Evaluation Policy 18

5.2 Course Evaluation and Quality Enhancement for this Course 18

Download Course Outline Appendices

Web address is:

http://www.law.unsw.edu.au/file/course-outline-appendices

Appendix 1 UNSW LAW SCHOOL GRADUATE ATTRIBUTESAppendix 2 FORMAL MATTERS RELATING TO ASSESSMENTAppendix 3 ACADEMIC MISCONDUCT AND PLAGIARISMAppendix 4 ADMINISTRATIVE MATTERS AND STUDENT SUPPORT SERVICES

- Notice on Distressing Course Material- Occupation Health and Safety- School of Law Office

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1 COURSE INFORMATION

1.1 Teaching Staff and Classes

Sean BrennanRoom 322, Law School Building, UNSW Kensington campusTelephone 9385 2334E-mail s.brennan@unsw.edu.auConsultation Times by appointment

Sean Brennan is a Senior Lecturer in the UNSW Faculty of Law and Director of the Indigenous Legal Issues Project in the Gilbert + Tobin Centre of Public Law (www.gtcentre.unsw.edu.au). After graduating from the ANU he was an Associate to a Federal Court judge and then moved to Inner City Legal Centre. Between 1994 and 1998 he worked with Cape York Land Council and other Aboriginal organisations. From 1999 to 2002 he was a Research Specialist in the Commonwealth Parliament’s research service, advising mainly on Indigenous legal issues and public law. Between 2002 and 2005 he was the Director of the Treaty Project in the Gilbert + Tobin Centre of Public Law and is the co-author (with Larissa Behrendt, Lisa Strelein and George Williams) of Treaty (Federation Press, 2005). He is also a co-author of McRae et al, Indigenous Legal Issues: Commentary and Materials (Thomson Reuters, 4th ed, 2009). His primary areas of teaching and research are constitutional law, native title and Indigenous legal issues.

Keiran HardyEmail k.a.hardy@unsw.edu.auConsultation Times by appointment

Keiran Hardy began his PhD in March 2011 under Professor George Williams’ ARC Laureate Fellowship on Anti-Terrorism Laws: Anti-Terror Laws and the Democratic Challenge. Prior to starting his PhD he worked as a Research Assistant for the Gilbert + Tobin Centre of Public Law and as Editor of the Australian Indigenous Law Review. He completed his Bachelor of Arts (Politics and International Relations) and Bachelor of Laws (Hons 1) at the University of New South Wales in 2010.

Zsofia KorosyE-mail  z.korosy@unsw.edu.auConsultation Times  by appointment

Zsofia Korosy holds a Bachelor of Arts (Hons) and a Bachelor of Laws (Hons) from UNSW. She has worked as a Judge's Associate at the Federal Court of Australia, as an intern at the International Criminal Court and as a solicitor at a commercial law firm in Sydney. She is currently a policy lawyer at the Environmental Defender's Office.

Nicola McGarrityRoom 313, Law School Building, UNSW Kensington campusTelephone 9385 3445Email n.mcgarrity@unsw.edu.au (preferred form of contact)Consultation Times by appointment

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Nicola McGarrity is a Lecturer with the Australian Research Council Terrorism Law Project at the Gilbert + Tobin Centre of Public Law, UNSW. Nicola holds a Bachelor of Arts and Laws (Hons 1, University Medal) from Macquarie University. She has taught a range of subjects, including Constitutional Law, Administrative Law, Ethics, Foundation of Law, and Intellectual Property Law, at Macquarie University, Sydney University and UNSW. Nicola has published extensively on Australia’s anti-terrorism laws, including co-editing Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 (Routledge, 2010), and has practised as a barrister in this field. She is currently undertaking PhD studies at UNSW examining the role of the terrorism trial as a check on executive power.

Sangeetha PillaiE-mail  sangeetha.pillai@unsw.edu.auConsultation Times  by appointment

Sangeetha holds a Bachelor of Arts (Politics & International Relations)/Bachelor of Laws (Hons Class 1) from UNSW, and a Master of Laws from the University of Sydney. She spent a year travelling and volunteering overseas, before returning to Sydney to practise in the Litigation & Dispute Resolution department of Allens Arthur Robinson. In 2011, Sangeetha joined the Gilbert + Tobin Centre for Public Law at UNSW, to work on its Laureate Fellowship Project Anti-Terror Laws and the Democratic Challenge. She is currently undertaking a PhD focusing on the operation of Australian citizenship in the context of anti-terror legislation.

Charlotte SteerE-mail  charlotte.steer@unsw.edu.auConsultation Times  by appointment

Charlotte Steer has lectured in Administrative Law, Public Law, Social Security Law, Torts, Legal Ethics, Legal Research and Writing, and Foundations of Law. Ms Steer has worked as a Tribunal Member at the Consumer, Trader and Tenancy Tribunal, a Conference Registrar at the Administrative Appeals Tribunal, a solicitor at the Legal Aid Commission of NSW and the NSW Anti-Discrimination Board, and as Associate to Justice McHugh AC on the High Court.

Tamara Tulich Telephone 0414 869 268E-mail  t.tulich@unsw.edu.auConsultation Times  by appointment

Tamara is a PhD candidate at the Gilbert + Tobin Centre for Public Law at UNSW, and a member of the ARC Laureate Fellowship project ‘Anti-Terror Laws and the Democratic Challenge’. Tamara’s research relates to how pre-emptive anti-terror laws engage and affect the judiciary. Tamara has practiced as a solicitor at the Mental Health Advocacy Service at NSW Legal Aid and served as associate to Chief Justice Higgins AO of the ACT Supreme Court. Since joining UNSW, Tamara has also taught Public Law.

Rebecca WelshTelephone                  0404 818 411E-mail                        r.welsh@unsw.edu.auConsultation Times     by appointment

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A graduate of the University of Wollongong, Rebecca has held positions as a Clerk to Senior Counsel in personal injury litigation, as a legal officer with the Commonwealth Attorney-General’s Department in the areas of National Security Litigation and Native Title and with DLA Phillips Fox in the Insurance Litigation & Dispute Management division. Following this experience Rebecca joined the Gilbert + Tobin Centre for Public Law Terrorism Law Project and is presently undertaking PhD research on counter-terrorism control and preventative detention orders and the separation of judicial power, this research being part of the Australian Laureate Fellowship Project Anti-Terror Laws and the Democratic Challenge. Rebecca has published articles and spoken at a number of international conferences on Australian and comparative counter-terrorism and constitutional law.

Your Classes

Class Day Time Room Lecturer3511 Mon 9 to 11 Law 202 McGarrity3521 Mon 9 to 11 Law 275 Welsh3506 Mon 11 to 1 ASB 219 Welsh3507 Mon 11 to 1 ASB 107 McGarrity3508 Mon 2 to 4 ASB 107 Brennan3509 Mon 2 to 4 Law 388 Pillai3510 Mon 4 to 6 Law 388 Pillai3520 Mon 4 to 6 Law 301 Welsh3513 Tues 9 to 11 Law 163 Steer3514 Tues 9 to 11 Law 276 Tulich3515 Tues 11 to 1 Law 276 Tulich3512 Tues 11 to 1 ASB 107 Steer3516 Tues 2 to 4 Law 276 Korosy3517 Tues 2 to 4 Law 389 Hardy3518 Tues 4 to 6 Law 389 Hardy3519 Tues 4 to 6 Law 163 Korosy

BlackboardAs a student in this program you will also have access to the Blackboard course page. Blackboard is an online materials and support site designed to complement your learning. Students are provided with personalised usernames (z plus your Student ID number) and passwords (zPass) to log on to the site to access information and resources specifically related to the courses in which they are enrolled. Typically, a Blackboard site includes course outlines, course handouts, information from lecturers and email facilities. Students should ensure that they log into their Blackboard courses at least once a week as it is where lecturers will provide information and materials to supplement your studies.

UNSW Blackboard supports the following web browsers for Windows XP or VISTA:· Internet Explorer (IE) version 7 or 8· Firefox 3.0.x (must run version 3.0.3 and above)

UNSW Blackboard supports the following web browsers for Mac 10.4 or 10.5,· Firefox 3.0.x (must run version 3.0.3 and above)· Safari 2 or 3

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Note: Mac OS 10.3 is not supported. To log on to your Blackboard site, you will need to follow these steps:1.     Go to the TELT gateway and click the link to log into Blackboard. 2.     Enter your Student ID and your zPass to login. 3.     Choose from the courses that you are enrolled in.

Information and Blackboard support can also be found on the TELT gateway. For information on the zPass or how to create your zPass, visit Zpass information.

1.2 The Relationship between Research and TeachingIt is the policy of the Law School as far as possible to allow teachers to teach in their area of research and expertise. This means that students are exposed to academics and researchers who are experts in their fields. The biographical details given above indicate the research and professional experience in public law and other fields that your teacher brings to class.

1.3 Course Description This course introduces students to public law concepts that are important in themselves and also crucial to the study of Administrative Law and Federal Constitutional Law, and associated electives. It picks up some of the public law themes encountered in Foundations of Law and examines them in more detail.

1.4 Aims This course aims to introduce students to the study of public law, including its methods of reasoning, history and fundamental principles. It asks students to engage with introductory principles and theories of constitutional and administrative law as they apply to the essential features of our system of government. Specific topics that students will learn about and analyse include the Westminster System, Federation, Indigenous Peoples and the Question of Sovereignty, the Federal Parliament, Human Rights and Bills of Rights and the Separation of Powers.

1.5 Expected Learning OutcomesConsistent with the aims of the course as above, the learning outcomes expected on the completion of this course include:

an understanding of core public law principles; greater knowledge of the Australian system of government; a preliminary grasp of constitutional and administrative law frameworks; an appreciation of topical arguments in favour of and against various proposals for public

law reform; and an ability to cogently discuss these concepts in a scholarly and persuasive manner.

1.6 Learning Outcomes and Graduate AttributesThe UNSW Law School also aims to develop specific attributes (or capabilities) in all of its law graduates. The particular Graduate Attributes (GAs) developed in this course are:

1. core disciplinary knowledge: you will have a functioning and contextual knowledge of public law theory, institutions and doctrines;2. transferable intellectual skills: you will gain intellectual skills of public law problem-solving, critical reflection about public law institutions and concepts, analysis of public law texts and

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documents, and an ability to make informed judgments about current events and legal issues involving government;4. communication skills: you will develop written and oral skills through class participation and the written assessment tasks assigned during the course (see “Assessment” below); and5. personal and professional skills: you will develop a heightened understanding of the role and potential for law in regulating legal, executive and judicial power and reflect on the position of individual citizens in a liberal democracy.

Each assessment item (Class Participation, Mid-Semester Progress Exercise and Final Exam) relates to GAs 1, 2, 4 and 5.

These attributes are described more fully in the Course Outline Appendix 1 at

http://www.law.unsw.edu.au/file/course-outline-appendices

1.7 Teaching RationaleThe teaching philosophy in this subject is one focused on student-centred learning. The success of the classes will depend upon students rejecting passivity to embrace (and, we hope, enjoy!) their learning experience. Students are encouraged and supported not just to read and comprehend the material under examination – but to engage with it through their own experiences, thoughts and reactions and to exchange these with others in class discussion.

Groups will meet for two hours each week. Each class will require effort and commitment from you, a major and essential part of which is that you do the required reading in advance of the class (and re-read after class if needed). The reading has been set at a reasonable amount to allow you to complete it. The teaching strategy is based upon fostering class discussion and interaction. You will be expected to participate in class – and indeed this forms a significant part of the assessment in the subject. If this causes you any difficulty, you should see your lecturer to discuss how to maximise your participation.

The adoption of these strategies will best assist students to meet the expected learning outcomes listed above.

2 ASSESSMENT

2.1 Assessment SchemeAssessment for this course comprises three components:

Class Participation 20Mid-Session Progress Exercise (available Week 8, due Week 9) 0Final Exam (open book) 80

100

The assessment tasks for this course are designed to ensure that the objectives listed above in the Course Information are attained by students who successfully complete it.

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You are reminded of the Faculty’s requirement that you attend at least 80% of classes. This means that if you miss more than two classes you may be refused final assessment. The final grade for the course for every student will be based upon a combination of the following:

a. Class Participation 20%Students will be awarded 20% of the final grade for their participation in class discussion – not merely for classroom attendance. This component of the assessment scheme is designed to encourage student preparedness for classes, to provide opportunities for students to express their understanding in oral discussion, to develop skills and to make the course more interesting. Students will be regularly required to present their own points of view on the issues that arise, supporting and defending them appropriately, and will be required to analyse and critique differing points of view.

The mark for class participation will be influenced by the general contribution students make across the course to class discussion. That may include, for example, a comment based on the current week’s readings, a thoughtful response to someone else’s contribution, or a pertinent question. If a serious and genuine attempt is not made to complete the mid-semester progress exercise, this will be taken into account in arriving at a final mark for class participation.

b. Mid-Semester Progress Exercise 0%This non-weighted exercise will test your understanding of key public law concepts and your ability to explain them in a short answer format. It will be distributed via Blackboard in Week 8 and is to be handed in to your teacher at the start of class in Week 9. The exercise will be discussed in class. The discussion of each answer in class is designed to assist you in identifying how well your understanding of the subject is progressing in the lead-up to the exam. Your relative performance in that exercise is not assessed in the way it would be in a weighted exercise. If, however, you do not submit a serious and genuine attempt to answer all the questions at the commencement of the class in Week 9 then that will be taken into account in arriving at a final mark for class participation. The assignment will not be accepted later than the start of class in Week 9.

c. Final Exam 80%The exam, worth 80% of the final grade, will be based upon work covered throughout the semester. It will consist of different sections to be answered, including problem and essay style questions. The best way to prepare for the exam is to keep up with the reading for every class and to participate in class.

The exam will be held in the University’s formal examination period and will be open book. The rationale behind offering an examination at the end of semester is to enable students to develop their understanding of the subject matter over the course without having to focus upon immediately pressing assessment tasks. The exam is open book because it is not simply a memory test but an opportunity for students to demonstrate a deeper analysis of the issues.

2.2 Assessment Criteria and Overall Grading

CriteriaMarking criteria for class participation: These criteria are indicative rather than prescriptive and intended in a general way to illustrate the standard of participation required to achieve a given grade.

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HD Exceptional standard of participation. D Attends class, engages in group work, shows interest, always well prepared for class,

contributes very constructively to class discussion, and demonstrates analytical/critical thought.

C Attends class, engages in group work, shows interest, prepared for class, contributes positively to class discussion.

P Attends class, engages in group work, evidence of preparation for class, reasonable contribution to class discussion.

F Lower standard than above.

Marking criteria for final exam:The criteria by which the exam will be assessed will, of course, relate to the specific questions, but in general we are looking for students to demonstrate:

understanding of the course content and ability to apply it appropriately to the assessment task at hand;

ability to critically appraise the frameworks and assumptions that underpin the course; intelligent and thoughtful analysis of the questions asked; succinctness, clarity, relevance and insight; ability to discuss materials beyond merely describing them and their contents.

GradingThis is consistent with the criteria as set out above.

High Distinction [85% and over]: demonstrates an extensive understanding of the concepts studied and the commensurate high order ability to analyse and evaluate the law, policy goals and the broader legal, economic and social context in which public law operates.

Distinction [75% to 84%]: demonstrates a thorough understanding of the concepts studied and a strong ability to analyse and evaluate the law and policy goals in the public law context.

Credit [65% to 74%]: demonstrates a sound understanding of the concepts studied and the unambiguous ability to analyse and evaluate the law and policy goals in the public law context.

Pass [50% to 64%]: demonstrates a basic understanding of the concepts studied and has some demonstrated ability to analyse and evaluate the law and policy goals in the public law context.

Fail [less than 50%]: demonstrates insufficient understanding of the concepts studied AND/OR fails adequately to demonstrate ability to analyse and evaluate the law and policy goals in the public law context.

Request for special consideration:If you are asking for Special Consideration, please follow the procedure as outlined on the UNSW website at my.unsw.edu.au/student/atoz/consideration.pdf.

2.3 Assessment Timetable - Links to Learning Outcomes & GAs

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Assessment Type Date Due Marks Link to Learning Outcomes and GAs

Class Participation Each class 20 Analytical and oral skills.GAs 1, 2, 4, 5

Mid-Semester Progress Exercise

Start of class, Wk 9 0 GAs 1, 2, 4, 5

Final Exam Date to be set by examination centre

80 Analytical, problem-solving and writing skills.GAs 1, 2, 4, 5

2.4 Formal Matters

UNIVERSITY POLICIES ON ASSESSMENTSInformation produced by the UNSW Law School regarding assessments can be found through the Law School website (www.law.unsw.edu.au).

Further information about Formal Matters relating to Assessment can be found in the Course Outline Appendix 2 at:

http://www.law.unsw.edu.au/file/course-outline-appendices

ACADEMIC MISCONDUCT AND PLAGIARISMNo essays or assignments can be accepted unless you sign the academic misconduct declaration that is included on the Law School assignment cover sheet.

It will be assumed that you are thoroughly familiar with the policies of the Law School and UNSW regarding academic misconduct and plagiarism.

See the Course Outline Appendix 3 at:

http://www.law.unsw.edu.au/file/course-outline-appendices

3 COURSE SCHEDULE

3.1 Course MaterialsThe only required book for the course is:

Tony Blackshield and George Williams, Australian Constitutional Law & Theory: Commentary and Materials (5th ed, Federation Press, 2010)

You will need a copy of this edition of the book and must bring it to every class. The book is available through the UNSW Bookshop. The Abridged version of the fifth edition that is also available from Federation Press does not contain a significant proportion of the prescribed reading for this course. Additional materials may be distributed in class. Should any updates to

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the required text need to be downloaded, as directed during the semester, these are available from the publisher’s website (‘Book Supplements’) at www.federationpress.com.au/supplements.

3.2 Schedule of Topics

Week 1 (beginning 27 Feb) Introduction and Constitution Exercise

Week 2 (beginning 5 March) Constitutionalism, Coups and Judicial Review

Week 3 (beginning 12 March) Evolution of the Westminster System: a Power Struggle amongst Institutions

Week 4 (beginning 19 March) Dicey, Parliamentary Sovereignty and the Rule of Law

Week 5 (beginning 26 March) Federation to Popular Sovereignty

Week 6 (beginning 2 April) Indigenous Peoples and the Question of Sovereignty

Mid-semester break – Easter/Recess

Week 7 (beginning 16 April) READING WEEK – no scheduled class

Week 8 (beginning 23 April) State Constitutions

Unweighted Mid-Semester Progress Exercise to be completed

Week 9 (beginning 30 April) Discussion of Progress Exercise, Catch-up and Recap

Week 10 (beginning 7 May) Voting and Election to the Federal Parliament

Week 11 (beginning 14 May) The Executive

Week 12 (beginning 21 May) The Separation of Judicial Power

Week 13 (beginning 28 May) Human Rights and Charters of Rights

End of Teaching – Final Exam

3.3 Guide to ReadingThe point of the questions asked below is to assist you in your preparation before class. They give you some idea as to the key issues and what to look for in the readings. As such they are a useful starting point for your own study but they do not define the boundaries of class discussion, which may range far wider.

_____________________________________________________________________________

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Week 1 – Introduction and Constitution Exercise

Required reading

None

_____________________________________________________________________________

Week 2 – Constitutionalism, Coups and Judicial Review

Required reading

Casebook 1-12 (Chapter 1, sections 1-3);40 (para commencing ‘In British countries...) - 43 (to 8 lines up from bottom)46-52 (section 10).

Questions

Is the power of judicial review consistent with a democratic system of government? What is the source of authority of the Australian Constitution? Why do Australians

obey it as their basic law? Was the Fiji Court of Appeal correct in its decision in Prasad?

_____________________________________________________________________________

Week 3 – Evolution of the Westminster System: a Power Struggle amongst Institutions

Required reading

Casebook 54-77 (Chapter 2, sections 1 and 2).

Questions

How did the relationship between the Crown, Parliament and the judiciary evolve in England?

Why is this long period of British political history relevant to Australia?

_____________________________________________________________________________

Week 4 – Dicey, Parliamentary Sovereignty and the Rule of Law

Required reading

Casebook 83-105 (Chapter 2, section 4 to the end of 4(c)).

Questions

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What does parliamentary sovereignty mean and is it relevant in contemporary Australia?

What is the rule of law? Is it always applied in Australia? Is parliamentary sovereignty compatible with the rule of law?

_____________________________________________________________________________

Week 5 – Federation to Popular Sovereignty

Required reading

Casebook 122-127 (Chapter 3, section 3);206-211 (Chapter 5, section 2)127-131 (Chapter 3, sections 4 and 5 to ten lines from bottom of 131)141-150 (Chapter 3, sections 7 and 8).

Questions

Is the Australian Constitution a people’s document? What does federalism have to do with human rights? Is Australia now a fully independent nation? Is popular sovereignty an adequate explanation of the underpinnings of the

Constitution?

_____________________________________________________________________________

Week 6 – Indigenous Peoples and the Question of Sovereignty

Required reading

Casebook 152-160 (Chapter 4, sections 1-3 to end of long extract on 160); 168 (eight lines from bottom) - 173 (end of extract in middle of page);178-198 (section 4);

Questions

What mention does the Constitution make of Indigenous peoples? Did Mabo recognise the ‘sovereignty’ of Indigenous peoples? Should there be a treaty between Australia’s Indigenous and non-Indigenous

peoples? Can Indigenous peoples achieve self-determination without fracturing Australia’s

constitutional structure?

_____________________________________________________________________________

Mid-semester break – 6 to 15 April

Reading Week – 16 to 22 April

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_____________________________________________________________________________

Week 8 – State Constitutions

Required reading

Casebook 426-445 (Chapter 10, sections 1, 2 and 3 to para in middle of 445 ending ‘... the Colonial Laws Validity Act’).

Questions

Are there any limits to the legislative power of the NSW Parliament? How easy is it to amend State Constitutions? What is a manner and form provision? Why do such provisions bind the States

today?

_____________________________________________________________________________

Week 9 – Discussion of Progress Exercise, Catch-up and Recap

Required reading

None (you must complete the Progress Exercise and hand it in at the start of class)

_____________________________________________________________________________

Week 10 – Voting and Election to the Federal Parliament

Required reading

Casebook 367-381 (Chapter 9, sections 3(a)-3(c));402-410 (Chapter 9, section 4).

Book supplement (www.federationpress.com.au/supplements): Rowe v Electoral Commissioner [2010] HCA 46 (15 December 2010), pp 1-9 – please ensure you access and read in advance of your class.

Questions

What system of government do ss 7 and 24 create? Do they imply any fundamental rights on the part of the Australian people?

Do Australians possess a right to vote? Should s 44 be amended to allow dual citizens to become members of Parliament? How could the United Kingdom be a ‘foreign power’ in 1999, but not in 1901?

_____________________________________________________________________________

Week 11 – The Executive

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Required reading

Casebook 105-109 (Chapter 2, section 4(d)); 466 (Chapter 11, section 1, first two paras);480 (start of section 3) - 494 (end of section 3(a)); 521 (start of section 4) - 528 (end of section 4(a)).

Questions

Why are conventions followed? What are the prerogatives? Could parliament legislate to abolish the prerogatives? Do you agree with the majority or the minority in the Tampa Case? Is responsible government still alive?

_____________________________________________________________________________

Week 12 – The Separation of Judicial Power

Required reading

Casebook 8-12 (Chapter 1, section 3) (recap); 598 (last para) - 604 (to end of Chapter 13, section 1); 606-610 (Chapter 13, section 3);622-630 (Chapter 13, section 5(b)).

Questions

Does Australia have a complete separation of powers? Should there be a strict separation between the judiciary and the other branches of

government? What is judicial power? Can it be defined? Do you agree with the majority or the dissenters in Hilton v Wells and Grollo?

_____________________________________________________________________________

Week 13 – Human Rights and Bills of Rights

Required reading

Casebook 1150-1155 (Chapter 26, section 1);1356-1368 (Chapter 30, section 4).

Book supplement (www.federationpress.com.au/supplements): Momcilovic v The Queen [2011] HCA 34 (8 September 2011) pp 1-2 (to end of commentary); p 6 (para commencing ‘The power conferred upon...’) to the end of p 7 – please ensure you access and read in advance of your class.

Questions

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The ACT and Victoria now have statutory Charters of Rights in operation. What arguments exist for and against similar instruments being adopted nationally or in other jurisdictions?

Would a Bill of Rights transfer too much power to the judiciary? What rights should be in an Australian Bill of Rights? Should a right to ‘equality’ be

included?

_____________________________________________________________________________

4 ADDITIONAL RESOURCES FOR STUDENTS

If you need to improve or brush up on your general knowledge of Australia’s legal and political system we suggest:

Saunders, C, It’s Your Constitution: Governing Australia Today (Federation Press, 2nd ed, 2003); or

Singleton, G, Aitkin, D, Jinks, B, and Warhurst, J (eds), Australian Political Institutions (Pearson, 9th ed, 2009).

David Clark, David Bamford and Judith Bannister’s book Principles of Australian Public Law (Butterworths, 3rd ed, 2010) (also known by Clark, D, Principles of Australian Public Law (LexisNexis, 3rd ed, 2010)) is recommended if you want an alternative text that will reinforce a lot of the material covered in class and the prescribed reading.

There is a large collection of books and articles on Australian public law. Some of the more useful books are listed below. Further reading is also listed at the end of each chapter in the required text.

Texts Byrnes, A, Charlesworth, H and McKinnon, G, Bills of Rights in Australia: History, Politics

and Law (UNSW Press, 2008). Carney, G, The Constitutional Systems of the Australian States and Territories (Cambridge

University Press, 2006). Castan, M & Joseph, S, Federal Constitutional Law: A Contemporary View (Law Book Co,

3rd ed, 2009). Clark, D, Principles of Australian Public Law (LexisNexis, 3rd ed, 2010). Hanks, P, Gordon, F and Hill, G, Constitutional Law in Australia (Butterworths, 3rd ed,

2011). Keyser, P, Clarke, J and Stellios, J, Hanks’ Australian Constitutional Law: Materials and

Commentary (LexisNexis, 8th ed, 2009) Lindsay, K, The Australian Constitution in Context (Law Book Co, 1999). Moens, G, and Trone, J, Lumb Moens and Trone The Constitution of the Commonwealth

of Australia Annotated (LexisNexis, 8th ed, 2011). Ratnapala, S, Australian Constitutional Law: Foundations and Theory (Oxford University

Press, 2nd ed, 2007). Stellios, J, The Federal Judicature: Chapter III of the Constitution Commentary and

Cases (LexisNexis, 2010).

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Twomey, A, The Constitution of New South Wales (Federation Press, 2004) Williams, G, Human Rights Under the Australian Constitution (Oxford University Press,

1999). Winterton, G, Parliament, the Executive and the Governor-General: A Constitutional

Analysis (Melbourne University Press, 1983). Winterton, G, Lee, H, Glass, A, Thomson, J and Gerangelos, P, Australian Federal

Constitutional Law: Commentary and Materials (Law Book Co, 2nd ed, 2007). Zines, L, The High Court and the Constitution (Federation Press, 5th ed, 2008).

Collections of essays

Coper, M and Williams, G (eds), Power, Parliament and the People (Federation Press, 1997).

Coper, M and Williams, G (eds), Justice Lionel Murphy: Influential or Merely Prescient? (Federation Press, 1997).

French, R, Lindell, G, and Saunders, C (eds), Reflections on the Australian Constitution (Federation Press, 2003).

Goldsworthy, J (ed), Interpreting Constitutions (Oxford University Press, 2006). Kildea, P, Lynch, A, and Williams, G, (eds), Tomorrow’s Federation: Reforming

Australian Government (Federation Press, 2012). Lee, HP, and Gerangelos, P (eds), Constitutional Advancement in a Frozen Continent:

Essays in Honour of George Winterton (Federation Press, 2009). Lee, HP, and Winterton, G (eds), Australian Constitutional Landmarks (Cambridge

University Press, 2010). Lee, HP, and Winterton, G (eds), Australian Constitutional Perspectives (Law Book Co,

1992). Lindell, GJ (ed), Future Directions in Australian Constitutional Law (Federation Press,

1994). Lindell, GJ and Bennett, R (eds), Parliament: The Vision in Hindsight (Federation Press,

2001). Macintyre, C, and Williams, J (eds), Peace, Order and Good Government: State

Constitutional and Parliamentary Reform (Wakefield Press, 2003). Opeskin, B and Wheeler, F (eds), The Australian Federal Judicial System (Melbourne

University Press, 2000). Sampford, C and Preston, K (eds), Interpreting Constitutions: Theories, Principles and

Institutions (Federation Press, 1996). Sampford, C and Round, T (eds), Meeting the Global Challenges to Constitutionalism

(Federation Press, 2001). Saunders, C, and Le Roy, K (eds), The Rule of Law (Federation Press, 2003). Stone, A and Williams, G (eds), The High Court at the Crossroads: Essays in

Constitutional Law (Federation Press, 2000). Winterton, G (ed), State Constitutional Landmarks (Federation Press, 2007).

Historical

Craven, G (ed), The Convention Debates 1891-1898: Commentaries, Indices and Guide (Legal Books, 1986) (6 volumes).

Harrison Moore, W, The Constitution of the Commonwealth of Australia (2nd ed 1910, reprinted by Legal Books 1997).

Inglis Clark, A, Studies in Australian Constitutional Law (1901, reprinted by Legal Books, 1997).

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Irving, H, To Constitute a Nation: A Cultural History of Australia’s Constitution (Cambridge University Press, 1997).

Irving, H (ed), A Woman’s Constitution? Gender and History in the Australian Commonwealth (Hale & Iremonger, 1996).

La Nauze, J, The Making of the Australian Constitution (Melbourne University Press, 1972).

Quick, J and Garran, R, The Annotated Constitution of the Australian Commonwealth (1901, reprinted Legal Books 1976 and 1995).

General

Ayres P, Owen Dixon (Miegunyah Press, 2007). Barwick, G, A Radical Tory (Federation Press, 1995). Blackshield, T, Coper, M, and Williams, G (eds), The Oxford Companion to the High

Court of Australia (Oxford University Press, 2001). Brown, A, Michael Kirby: Paradoxes and Principles (Federation Press, 2011). Coper, M, Encounters with the Australian Constitution (CCH, deluxe ed 1987, pop ed

1988). Cowen, Z, Sir John Latham and Other Papers (Oxford University Press, 1965). Craven, G, Conversations with the Constitution (UNSW Press, 2005). Fricke, G, Judges of the High Court (Hutchinson, 1986). Galligan, B, Politics of the High Court (University of Queensland Press, 1987). Goldsworthy, J, Parliamentary Sovereignty, Contemporary Debates (Cambridge

University Press, 2010) Harris, B, A New Constitution for Australia (Cavendish, 2002). Hocking, J, Lionel Murphy: A Political Biography (Cambridge University Press, 2000). Marr, D, Barwick (Allen & Unwin, 1980). Mason, A, and Lindell, G (eds), The Mason Papers (Federation Press, 2007). Patapan, H, Judging Democracy: The New Politics of the High Court of Australia

(Cambridge University Press, 2000). Patmore, G (ed), The Big Makeover: A New Australian Constitution (Pluto Press, 2001). Patmore, G, Choosing the Republic (UNSW Press, 2010). Pierce, J, Inside the Mason Court Revolution: The High Court of Australia Transformed

(Carolina Academic Press, 2006). Saunders, C, The Constitution of Australia: A Contextual Analysis (Hart, 2010). Sawer, G, Australian Federalism in the Courts (Melbourne University Press, 1967). Solomon, D, The Political High Court (Allen & Unwin, 1999). Spigelman, J, Macpherson Lecture Series Volume 3: On Statutory Interpretation and

Human Rights (University of Queensland Press, 2008). Williams, G, A Charter of Rights for Australia (UNSW Press, 3rd ed, 2007). Williams, G & Hume, D, People Power: The History and Future of the Referendum in

Australia (UNSW Press, 2010).

WebsitesThere are a variety of useful websites including:<www.aph.gov.au><www.apo.org.au><www.gtcentre.unsw.edu.au><www.hcourt.gov.au><cccs.law.unimelb.edu.au>

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Library

Students seeking to obtain the above or further resources should seek assistance from the UNSW Library: <info.library.unsw.edu.au/Welcome.html>.

5 CONTINUAL COURSE IMPROVEMENT

5.1 CATEI Evaluation Policy Student feedback is very important to continual course improvement. This is demonstrated within the School of Law by the implementation of the UNSW Course and Teaching Evaluation and Improvement (CATEI) Process, which allows students to evaluate their learning experiences in an anonymous way. The resulting evaluations are ultimately returned to the course convenor, who uses the feedback to make ongoing improvements to the course.

5.2 Course Evaluation and Quality Enhancement for this CourseThe surveys administered in 2010 as part of the UNSW Course and Teaching Evaluation and Improvement process ('CATEI') revealed that overall students were generally satisfied with the Public Law course (89% strongly agreed, agreed or moderately agreed that they were satisfied with the course). This represented an increase over the previous two years: 2009 (86%) and 2008 (80%) and followed a number of changes to the course including several which took account of student feedback on thematic unity, appropriateness of assessment and volume of reading.

ADMINISTRATIVE MATTERS AND STUDENT SUPPORT SERVICESNotice on Distressing Course MaterialOccupation Health and SafetySchool of Law Office

See Course Outline Appendix 4 at:

http://www.law.unsw.edu.au/file/course-outline-appendices

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