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Constitutional Law Explained in Three Steps

This post explains how to approach answering any exam or assignment problem question in Constitutional Law in three steps.



Many students struggle with constitutional law. There is so much content that it can be difficult to know how to start answering an exam question. Most students fail to see the bigger picture and how all of the course content actually fits into three neat steps to determine whether legislation is valid under the Constitution. Before explaining these three steps, let me first outline how most constitutional law exams are structured.


All constitutional law hypothetical problem questions, whether they are assignments or 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. implementing a treaty, responding to some social problem etc.).

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.

 


In short, therefore, your task will be to determine whether the new legislation can be challenged due to it being unconstitutional. There are three ways that law can be invalid under the Constitution:

 

1.     Characterisation

The new legislation will be unconstitutional if it is not supported by a head of power. Remember, the Federal Government can only make laws on the topics listed in s 51 of the Constitution. These topics, like trade and commerce, corporations, or defence, are called ‘heads of power.’ A section of any legislation made by the federal government will be invalid if it is not sufficiently connected to one of the heads of power. This step requires you to examine the subject matter of each section of the new act, and ask whether each section is sufficiently connected to a head of power. Each head of power has its own test, and so you will need to first explain the test and then apply it to each section of the new legislation.

 

2.     Rights and Duties

A section of the newly enacted fictitious legislation will be unconstitutional if it breaches a right or duty in the Constitution. For example, a law banning the practicing of a particular religion breaches freedom of religion and is unconstitutional. To complete this step consider each section of the new piece of legislation and consider whether any sections contravene a right or duty in the Constitution.

 

3.     Inconsistency

If there is state law on the same topic as the new federal law, the state law may be invalid to th extent of any inconsistency with the federal law. In other words, federal law trumps state law if it is on the same topic, or if it takes away a right granted by federal legislation.

 

That is it – that is all of constitutional law. That means answering any problem question requires you to consider the three steps just outlined. If you follow this structure you will find your exam to be far less stressful and complicated.


 

A summary of all of the legal tests needed to complete the three steps to answer constitutional law problems is contained in the document below.







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