Constitutional Law 2021
Essay Question
Evaluate the suitability of Australia's constitutional system for meeting the challenges of COVID-19. You are welcome to address any issue that fits within the lens of constitutional law, but you must consider:
• Commonwealth-State relations (federalism)
• implied freedoms such as political communication and association/movement
• section 92
You need not consider legislative heads of power in any detail, including the so-called ‘nationhood power’.
See the unit outline for other details.
General comments on essay writing
Writing 1
Argument 1
Structure 1
Example essay with commentary 3
Examiner’s notes 3
HD Answer 3
CR Answer 6
Writing
See tips here on how to write well:
• https://mnemolibrary.com/discover/topic/Mnemo's%20Writing%20Lessons
• https://mnemolibrary.com/discover/topic/Australian%20Guide%20to%20Legal%20Citation
Argument
First, you need a contention, the main point being advanced, often called the thesis or a conclusion. A thesis gives an essay purpose and direction. If you are given a specific research question, the thesis is the answer to this question. In this essay, you will need to make a normative contention, for example ‘Australia should have a bill of rights’ (not the actual question). This can be contrasted with a factual contention (eg ‘Countries with bills of rights are in the majority’) and an interpretive contention (eg ‘Countries with a bill of rights have a better record of rights compliance’). Second, you need premises to support your conclusion and you should be clear about how they support the conclusion. Premises may be factual, interpretive, or normative. Just as premises support the conclusion, you need to support your premises. Typically, a normative statement rests on good consequences (eg many lives saved, economically efficient, convenient, etc) or being inherently right (eg respects inherent dignity of the person, complies with shared values etc.). A factual statement rests on the ability to demonstrate truth through observation (evidence/data) or logic. An interpretive statement in law tends to involve interpreting the meaning of primary texts through case analysis or statutory interpretation.
Structure
Generally your structure should be based on sections containing your individual premises. We recommend the ‘pro and con approach’. This is a balance of considerations or ‘dialectic’ approach. Typically, the format consists of the confirmation of an idea, the objection to the idea, and the ‘thesis’ as a compromise arrived at by balancing considerations. For example, ‘the market is efficient, but the market is unjust, therefore the market should be partially regulated.’ Another approach is the analysis of alternatives approach. On this approach, the essay lists and analyses a number of options in an attempt to persuade the audience to accept one is preferable, or the lesser of the evils.
• The best way to ensure logical relationships in your ordering of ideas is to use an outline. The thesis itself may have components that can be divided into sections. In addition, the organisational structure will determine the order of ideas. In a pro and con essay, confirmation is followed by objection and then balanced view (but use more descriptive headings than these). In an analysis of the alternatives essay, alternatives are presented in the order of best known or most popular first.
• Put information in chronological order and group main ideas together
• You should use signal words and phrases such as ‘nevertheless’, ‘however’, ‘therefore’, ‘There are two factors…’ ‘first’, ‘second’, ‘For these reasons’ etc.
• Use headings descriptive of the content that follows.
• Discrete sections in the essay should be connected: e.g. ‘The next section explores how this issue is relevant to...’
• Put your strongest arguments first
• Include an introduction and conclusion
o An introduction should contain (1) something to draw in your reader, (2) some basic background info, (3) the argument you seek to make and (4) a brief explanation of how you will make the argument (e.g. ‘section 3 argues that.. by using evidence from ...’ ‘Section 5 concludes that...’). Therefore, it is wise to rewrite the introduction after you have finished the rest.
? There are a number of strategies to drawing your reader in the essay: for example, relating your topic to something current or well-known, challenging a generally held assumption about your topic, showing something puzzling or paradoxical about your topic, or stating some striking facts or statistics related to your topic.
o The conclusion should reinforce your thesis and tie the essay together. You should encapsulate your argument: succinctly capture the substance and complexity of the argument and how it was developed and demonstrated. The conclusion should not introduce new material, but it may help to put the thesis in perspective or put a new spin on the thesis. For example you can point out an implication of the thesis for the reader to ‘take away’, something for the reader to act on, for example ‘the challenge that lies ahead is...’
• Divide your work into logical paragraphs (150–200 words) that contain a unifying idea, encapsulated in an initial ‘topic sentence’ announcing what the paragraph is about. some useful ways to build bridges between paragraphs include:
o ‘Pointing’ words back to the point made in the previous paragraph: this, that, these, those, the (eg -This inability to achieve reform ...-
o Echo links: words of phrases taken from the previous paragraph (eg -There are therefore compelling reasons to support republicanism.- [new paragraph: -Republicanism is not the only ideology that...-]
o Explicit connectives: further, also, therefore (eg -Further to these well-known arguments, there are three other reasons...-)
Example essay with commentary
Question: Agree or disagree? The High Court’s approach to the protection of rights such as free speech and property strikes the best balance between society and the individual.
Examiner’s notes
You are required to think critically about the current state of constitutional law. For example, it would perfectly acceptable in answering the above question to contend that the Australian High Court has struck the right balance in protecting expression and property rights. However, this should be based upon a rigorous evaluation of the doctrinal and normative counter arguments. Some of these can be found in the case law. Look for disputes between majority and dissenters, for example. Some are in secondary sources, such as journal articles. Ideally, you will also come up with some original analysis/evaluation/argumentation.
Be careful not to slip into the trap of accepting the law ‘as it is’ when you are engaging in a normative debate. Indeed, even for problem-style questions, it is rare for the law itself to have only one correct interpretation. Try not to be too descriptive at the expense of critique/evaluation. Some submissions lead towards very high marks and stop short at the point of critique. Critique can be presented in various places. One approach is to include a ‘discussion’ section towards the end, which should comprise at least a third of the essay. Another approach is to intersperse critique throughout the essay, typically at the end of each paragraph/section. The conclusion in either case summarizes the critique, but a conclusion is not the appropriate place to first begin critical and normative statements. It is the place to restate your premises/evidence and conclusion and show how they are connected.
We also often see very good submissions in all aspects except answering the precise question posed. For example, a number of submissions answering the question above completely ignored the case law on appropriation of property. The question specifically referred to property so this should have been addressed.
The HD answer below is unusually good given that the author has declined to use secondary sources such as books and journal articles. It received an HD in spite of this, which demonstrates the originality and clarity of its critique. We would not recommend this risky strategy though. Note how the correct formatting and logical structure (albeit poor introduction) enhances the clarity of the text. Note how there is a narrative thread that leads inexorably to a compelling argument. The Credit example is deficient in these and other areas and only scraped by as a Credit for being a fairly solid attempt at answering the question.
HD Answer
Several rights protected by the Constitution, such as the implied right to freedom of political communication and to vote, and property rights, can be viewed as protecting private or individual interests that need to be, or are, balanced with public purposes. While the basis underpinning the political freedoms is not to provide individual rights but ensure the functioning of representative government, it has protected individual rights through its operation on occasions. In contrast, the guarantee of just compensation for compulsory acquisition of property under s 51(xxxi) is directly adapted to private property rights, but has been very narrowly interpreted in cases relating to government regulatory functions. While this appears ironic, given the need to prevent environmental and communal harm, the narrower compensation rights for compulsory acquisition is more appropriate. Although they are better protected, political rights could be strengthened with little detriment to group interests.
Australia lacks a general right to free speech, and protection is limited to political communication. This was implied from the constitutionally mandated system of representative government, and is therefore not a free-standing individual right, existing only to the extent required to maintain representative government. Nevertheless, this has incidentally developed private-type rights such as expanded defences against defamation related to political matters, and rights to physical protest, although this can be circumscribed by proportional public interest measures such as safety. A notable rights increment occurred in Coleman, which held the implied right covered communications that were insulting and incivil, and a statute restricting insulting language was read down to apply where a violent reaction was intended or likely. While the test of balancing the burden on political communication with whether the legitimate social end was implemented in a ‘reasonably appropriate and adapted manner’ is necessary, some recent cases show a factual imbalance towards overburdening group interests. In the Street Preachers Case, permit restrictions on activists in a pedestrian mall were deemed justifiable on safety grounds, but this appears too broad. Political communication and discourse is required for effective representative government and it is unreasonable to not expect canvassing and general debate in public places, subject to restrictions on incessant behaviour that is actually abusive, physically dangerous or harassment. This is distinguishable from Monis, where harassing letters were sent to relatives’ houses, causing unavoidable disruption. The relatives were not in a public place where political debate can be expected.
The implied right to vote, also derived from the requirements of representative government, has strengthened suffrage protections. In Roach, a law disenfranchising all prisoners was struck down. The High Court held that ‘directly chosen by the people’ had an evolving meaning but in modern times would not allow historical restrictions such as racial or property bars. The legislative removal of voting rights required substantial reasons, such as serious offending taken to imply a rejection of civil society. As such, only prisoners with sentences of three years or more could be disenfranchised and the blanket ban was not ‘reasonably appropriate and adapted’. In Rowe, changes to electoral procedure were made to close the rolls the night an election was called, instead of seven days later, having a disproportionate disenfranchising effect on disorganised younger voters who had not enrolled yet. The justification advanced was a glut of last-minute enrolments would overburden the Australian Electoral Commission’s ability to screen for registration fraud. The law was struck down as disproportionate to the alleged problem of electoral fraud. However, the textual basis of the implications restricts the scope of the right, even absent any competing social interest. McGinty concluded that the Constitution does not require voter equality, meaning electoral boundaries with vastly unequal populations giving those in less-populated electorates disproportionately more weight, were constitutional. While the plaintiffs in Roach and Rowe contributed to their detriment, this was not so in McGinty, and there was no remedy due to the restricted basis of the implied right, despite the lack of a competing imperative.
In contrast, s 51(xxxi) regarding compulsory acquisition has been read extremely narrowly against seekers of property rights. Section 51(xxxi) jurisprudence requires, among other criteria, property rights, and ‘acquisition of property rather than a mere deprivation, extinguishment or modification’. The first criteria has been interpreted broadly beyond traditional property rights and includes matters such as temporarily taking control of land without a formal legal estate, or the compulsory removal of directors and transfer of shares. Property is often characterised by the existence of a correlative obligation for others to not interfere. The mentioned cases occurred where the interests being balanced were of a material nature and show that where losses and benefits are primarily economic, the private interest will be eligible for appropriate compensation.
However, the distinction between acquisition and mere derogation of property rights, has been applied much more narrowly to restrict private interests that conflict with social imperatives, although this is not part of the test. Such jurisprudence typically occurs when the government has restricted some land or water use for environmental reasons. In Tasmanian Dams, Deane J dissented in holding that constraints placed by the government, granting itself a veto over types of land use, without possession or access rights, conferred a benefit, but the majority held that a restriction of enjoyment of land was merely modification, not acquisition.
In contrast, in Georgiadis, an injured worker’s right to legal action was statutorily extinguished, and this was deemed a property acquisition not extinguishment. Although there was no possession or control, the Commonwealth gained a ‘correlative benefit’ from the worker’s loss by not having to pay damages. McHugh J dissented, finding the right to sue had a statutory basis and could be revoked or modified at any time. However, in Bienke and Davey, the cancellation of fishing quotas for environmental reasons was not acquisition, but a mere deprivation where no party gained a benefit correlative to the fishermen’s loss. In Newcrest, increased mining restrictions increased the government interest correlative to the loss of the company; the minerals remained underground and the government could use them later. In contrast, an international treaty prompting a virtual government ban on offshore exploration was not an acquisition as the government had no proprietary interest in the minerals, and water allocation reductions were not acquisitions as the water was common until actually possessed and used. Given the more liberal conception of property in Georgiadis and Dalziell where personal losses were reimbursed, the overly procedural restriction in ICM appears to betray a narrower policy where environmental regulation is involved.
Most recently, mandatory plain packaging of tobacco was held not to be property acquisition. Although the nature of the property in the packaging is more indirect, the government does gain space for anti-smoking messages. While arguments that any benefit was sufficiently correlative would be tenuous, the emphatic nature of the judgements indicate a harsher line on private interests where competing social regulatory interests exist.
The balancing of private interests and social policy imperatives differs for different rights. While the political freedoms were designed to support democratic institutions rather than accord individual rights, they have helped protect political speech and voting rights, although some cases are unduly restrictive on rights despite the competing group rights being tangentially impeded at best. In contrast, compensation for property rights are thinly protected despite being a direct target for protection. While the poor success rate in property cases appears legalistically harsh, these have invariably involved pressing large-scale health or environmental issues, and whether or not any differential treatment is implicitly due to the nature of the subject matter, it has had the effect of appropriately protecting social imperatives while also assisting those whose property has been acquired by others, rather than simply being constrained.
CR Answer
Introduction
The decisions that the High Court make and uphold often require an intricate and somewhat very involved balancing act. It is a tedious task to weigh up the impacts of the decisions handed down knowing the effects these decisions could have on society and the individual. The High Courts approach to the protection of rights in regards to free speech does not strike the best balance as the rights are there to protect the function of representative government, not the individual, and the same can be said for property rights. Firstly, there is opinion that the latest decisions seem to narrow the individual’s rights and protection of free speech, unless the individual can prove that they are doing so legitimately and within reason. Secondly, even though it is debatable whether or not the protection of rights in regards to the Commonwealths power to acquire property is proportionally balanced, there is need to consider and address unsustainable patterns of resource exploitation and the health/safety for society as a whole and property owners feeling as if they are not being compensated justly.
Free Speech
Firstly, according to Michael Heads, the High Courts recent decisions have contributed to narrowing the scope for ‘political freedom of speech.’ The imbalance between society and the individual rights is apparent in these rulings, and it is clear that there is certainly less freedom to speak. The recent ruling in the City of Adelaide case where, two-evangelist preachers were convicted for preaching, canvassing and haranguing, was backed by the Adelaide City Council by banning the distribution of flyers and leaflets in a city pedestrian shopping mall without a permit. The South Australian Government also conceded the by-laws prohibits activities that may be linked or relevant to politics or government. Chief Justice French states:
“Plainly enough, preaching, canvassing, haranguing and the distribution of literature are all activities which may be undertaken in order to communicate to members of the public matters which may be directly or indirectly relevant to politics or government at the Commonwealth level.”
The majority asserted that these by-laws served as a shield to protect the public from disturbance and to prohibit such expression of opinions on the grounds that there is risk of offence to a ‘reasonable’ person or a threat to business or public convenience.
The second decision ‘approved the federal prosecution of an Islamic man (Monis) for sending allegedly ‘offensive’ anti-war letters to the families of Australian soldiers killed in Afghanistan.’ All six judges were in agreement that the legislation restricted political communication. However, the three dissenting judges in this case disagreed that the postal legislation only affected “the outer fringes of political discussion,” and that this could apply to a wide range of material that is posted on the internet that certain individuals may find unreasonable, highly offensive and hurtful. Justice Heydon, one of the dissenting judges called into question the implied freedom of communication, saying that Monis’s letter fell within that scope as ‘defined by precedent and it indicates how flawed the laws are and that all the case law dating back to the 90’s should be reviewed.’
In the article ‘Freedom of Speech and Australian Political Culture’ Katherine Gerber discusses whether or not the Australian public actually understands what free speech is and refers to survey results that show that people in Australia take free speech for granted and that they also believe that it is important and exists in society and should be included in the Australian Constitution. People surveyed were of the opinion that ‘free speech gives you dignity’ and another person states ‘I could not live in a society without free speech.’ A statement made by former Prime Minister John Howard that free speech should be exercised in a ‘tolerant and moderate fashion’ and ‘it is a cardinal principal, given of our free and open society,’ which, has quite a stark contrast to the opinions of free speech in other countries such as Egypt where a person surveyed was quoted as saying ‘you can’t say anything. You can’t say your opinions about any political party.’
Economical Rights
Secondly, section 51 (xxxi) of the Constitution gives the Commonwealth the power to acquire property and to make laws in regards to the acquisition of property, but it must be acquired under ‘just terms,’ and is only an ‘acquisition’ if it is of benefit to the Commonwealth. The court takes all circumstances of the cases into account when determining compensation on ‘just terms.’ This includes taking into consideration all prevailing economic conditions and societies needs. In the Tobacco Plain Packaging Case the Australian Government wanted to reduce the appeal of cigarette packaging, increase the effectiveness of the health warnings on packaging and to reduce the ability of the packaging to mislead consumers about the harmful effects of smoking. The High Courts found the decision in favour of the Australian Government and sought costs from the Tobacco companies. The Tobacco companies defence under section 51(xxxi) was found invalid as the court held that there had been no ‘acquisition’ of property of any kind that would require the provision of ‘just terms,’ and the courts also took into account the gravity of harm to the members of society that is caused by tobacco products. The Commonwealth gains power.
In regard to environmental disputes and unsustainable resource patterns the High Court’s approach does not strike the best balance with case law indicating that the decisions held are done with the greater benefit for society and the Commonwealth. The Tasmanian Dam case was a landmark case for many reasons, and was the first High Court case that s 51(xxxi) was used in the context of environmental disputes. The Commonwealth Government using the external affairs power section 51 (xxix) of the Constitution stopped a large dam from being constructed in Tasmania, as it was an area listed under the World Heritage List. Only one of the seven judges, Deane J, held, that there had been an acquisition of property. The three judges that considered the issue disagreed with Deane J, stating that ‘while the regulations impaired the plaintiffs enjoyment of its proprietary interest, there was no acquisition.’ They continue on to say that the missing element ‘was the fact that the Commonwealth did not obtain title to the land or possession and control.’
In ICM Agriculture Pty Ltd v Commonwealth the courts decision upheld the NSW legislation and was not only important for water reform but future environmental policy making. Even when faced with complaints from resource users, the Governments had to do what was necessary to address the issues of resource exploitation. It was conceded by the Commonwealth, that to make the payments of compensation would not amount to ‘just terms’ within the scope of s51(xxxi) of the Constitution.
Conclusion
In conclusion, taking into consideration the approach of the High Court in regards to ‘free speech’ it is clear the approach is used for the protection for the people of society as a whole, and is there to protect the function of the representative government, not the individual. The narrowing of the scope not only in public places, but also with postal legislation and political communications is a restriction for freedom of speech and expression for the individuals of society. Australia is a country with an increasing multicultural population with different religious and political beliefs. If the scope continues to narrow, oppression will increase and this cannot be a good outcome for a democratic society. Secondly, the High Courts approach to property rights and the decisions of some landmark cases are clearly made with societies needs a prevalent priority over the individuals needs. The approach from the High Court takes into consideration all the economic conditions, societies needs, international treaties, and environmental issues. Through out the decisions of these landmark cases the Commonwealth has gained power.