How to Answer a Constitutional Law Exam in Three Steps

A step-by-step framework for answering Australian constitutional law exams.

Most students struggle with constitutional law.

Not because they are incapable of understanding it, but because the subject can feel abstract, technical and overwhelming. There are heads of power, implied freedoms, express rights, constitutional limits, inconsistency, characterisation, proportionality, separation of powers and federalism.

It can feel like a pile of disconnected doctrines.

Lecturers and textbooks provide dense detail on case after case, but never explain how they expect you to answer an exam question.

After reading dozens of constitutional law exams from universities all over Australia I was surprised by how similar they all are.

All constitutional law exams are concerned with one thing – whether a new piece of legislation is valid under the Constitution. Questions typically look like this:

1.     A set of facts providing background information regarding why the Commonwealth or State government has enacted a new piece of legislation (e.g. the government has just signed a treaty or there is some new social problem that requires legislation).

2.     You will be provided with several sections of the new legislation

3.     You will be told about some person or company that is potentially in breach of the new legislation, and will be asked to advise them on whether the new legislation is valid under the Constitution. Alternatively, you may be asked by someone in the Government to provide advice whether the newly enacted legislation is constitutionally valid.

That means most constitutional law problem questions can be approached in three steps:

1. Is the law supported by a head of power?

2. Does the law breach a constitutional limitation, right, freedom or duty?

3. Is there any inconsistency between Commonwealth and State law?

Once you understand that structure, constitutional law becomes far less mysterious.

Step 1. Characterisation: is the legislation supported by a head of power?

The first question is whether each section of the new legislation is supported by a constitutional head of power.

The Commonwealth Parliament cannot simply make laws about anything it likes. Each section of the new legislation must be connected to a head of power listed in s 51. Most courses focus on a few like external affairs, corporations, defence and the grants power.

Your task will be to identify which heads of power you have focused on in your course could be used to validate the new legislation.

This usually requires you to:

• identify the relevant head of power;

• state the legal test for that head of power;

• explain the scope of the power using relevant case authority;

• apply the test to each section of the legislation with some link to this head of power; and

• reach a conclusion about whether the section is validly supported by that power.

Once you have completed this for all the relevant heads of power you should conclude by stating which sections of the new legislation are valid due to being supported by a head of power, and which are invalid for not.

Step 2. Constitutional limits: does the legislation breach a constitutional right or limitation?

Even if a section of the legislation is supported by a head of power, that does not automatically mean it is valid.

The next question is whether any of the sections breaches a constitutional right.

For example, a section may raise issues involving:

• freedom of religion;

• the implied freedom of political communication;

• acquisition of property on unjust terms;

• freedom of interstate trade and commerce;

• intergovernmental immunities (Melbourne Corporation Principle)

For example, if a Commonwealth law prohibits a particular form of political protest, you would consider whether it burdens the implied freedom of political communication.

If a section of the new legislation requires the transfer of property or valuable rights to the Commonwealth or another person, you may need to consider whether it involves an acquisition of property otherwise than on just terms.

The key point is this:

A law can be supported by a head of power and still be invalid if it breaches a constitutional limitation.

Step 3. Inconsistency: is there a conflict between Commonwealth and State law?

The third step is to consider inconsistency.

This issue arises where there is both Commonwealth legislation and State legislation dealing with the same or overlapping subject matter.

Under s 109 of the Constitution, where a State law is inconsistent with a valid Commonwealth law, the Commonwealth law prevails and the State law is invalid to the extent of the inconsistency.

This does not mean the entire State Act is invalid.

It means the State law is inoperative to the extent that it is inconsistent with the Commonwealth law.

In an exam, you should consider whether:

• it is impossible to obey both laws;

• one law takes away a right or permission granted by the other; or

• the Commonwealth law appears to cover the field, leaving no room for the State law to operate.

If inconsistency is established, the State law will give way to the Commonwealth law to the extent of the inconsistency.

Putting the three steps together

Most constitutional law problem questions can therefore be answered using this structure:

First, ask whether the Commonwealth law is supported by a head of power.

Second, ask whether the law breaches any constitutional right, freedom, duty or limitation.

Third, ask whether there is any inconsistency between Commonwealth and State law.

This does not mean constitutional law is easy.

Each step may involve detailed case law, complex tests and difficult application.

But it does mean constitutional law problem questions are more structured than they first appear.

When students struggle with constitutional law, it is often because they try to remember every doctrine separately.

A better approach is to see how those doctrines fit into the same exam framework.

Most constitutional law exams are not asking you to recite everything you know.

They are asking you to answer one central question:

Is every section of the new Commonwealth legislation constitutionally valid?

Once you understand that, your answer becomes much easier to organise.

You are no longer wandering through the subject hoping to find the right issue.

You have a map.

You identify the head of power.

You test the constitutional limits.

You consider inconsistency.

That is the three-step method for answering constitutional law problem questions.

If you want to go deeper, our How to Answer Assessment Questions on Constitutional Law study guide walks you through this process in far more detail.

It explains the key constitutional law tests, shows you how to apply them to problem questions, and provides simple, structured answer templates so you are not trying to build your response from scratch in the exam or assessment.

Learn more about the Constitutional Law Study Guide