University : | Griffith University UniLearnO is not sponsored or endorsed by this college or university. |
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Subject Code : | LAW3016 | Country : | Australia |
Question 1:
Critically evaluate the competing legal and policy arguments used to support ‘originalist’ and 'non-originalist' methods of interpreting the Constitution. Discuss the extent to which members of the High Court have favoured these methods of interpretation in deciding actual cases. Give a reasoned explanation for your preferred technique of constitutional interpretation.
Question 2:
In Love and Thoms v Commonwealth [2020] HCA 3 (‘Love’), the High Court of Australia had to decide whether Indigenous Australians could be considered “aliens” for the purposes of s 51(xix) of the Constitution, and therefore subject to a deportation order. A majority of four judges decided that Indigenous Australians cannot be considered aliens for the purposes of s 51(six) and a minority of three judges decided that Indigenous Australians can be considered aliens for that purpose. Decisions such as Love highlight the differences in the interpretation of the Constitution, including its heads of power, amongst the judges.
Consider, compare and contrast the decisions of Gordon J (in the majority) and Keane J (in the minority), focusing on each judge’s reasoning about the nature and extent of the legislative power conferred by s 51(xix). Please give your reasoned explanation of which judgment you prefer and why?
You are required to read the case of Love and Thoms v Commonwealth, and to answer the Assignment Question.
While your answer should focus on the judgements of Keane and Gordon JJ, you could find useful insights in the other judgments so you are advised to read the entire judgment.
You are not required to analyse previous judgments on s 51(xix), except insofar as they are discussed in or are relevant to your assessment of the two judgments, as the question raised in this case was novel. Nor are you required to explain the history of native title. Nor are you required to discuss the personal circumstances of either plaintiff.
NSTRUCTIONS
The Assignment is worth 40% of your assessment, and will receive a mark out of 40. There is a strict maximum word limit of 2000 words: there is no 10% leeway; additional words will not be read. This word limit does not count the footnotes or bilbiography. It does count headings.
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