Overview

This unit of study examines the origins and development of the Australian state and its legal system. Starting from a selection of pivotal judgments, we will examine a series of historical debates about moral and political economy under themes of empire, state and nation, persons and markets. We will do so through a close reading of major thinkers on law and social theory, including Harold Laski, Judith Shklar, Robert Nozick and Amartya Sen. Students will use legal theory to reflect on Australian constitutional and private law, and so build on their existing doctrinal knowledge to further develop their critical reading and writing skills in relation to significant contemporary problems.

Unit details and rules

Unit code	LAWS5228
Academic unit	Law
Credit points	6
Prohibitions ?	None
Prerequisites ?	None
Corequisites ?	None
Assumed knowledge ?	None
Available to study abroad and exchange students	Yes

Teaching staff

Coordinator	Coel Kirkby, coel.kirkby@sydney.edu.au

Type	Description	Weight	Due	Length
Assignment	Reflective essay Short reflective essay on required readings.	20%	Week 06 Due date: 29 Mar 2024 at 17:00 Closing date: 19 Apr 2024	1500 words/ 3 weeks
Outcomes assessed:
Assignment	Essay Outline and Review Essay outline and review of another student's outline.	15%	Week 08 Due date: 19 Apr 2024 at 17:00 Closing date: 10 May 2024	500 words/ 3 weeks
Outcomes assessed:
Assignment	Research Essay Research essay.	65%	Week 13 Due date: 24 May 2024 at 17:00 Closing date: 24 Jun 2024	4500 words/ 5 weeks
Outcomes assessed:

Assessment summary

Reflective essay (20%): This assessment will evaluate the student’s capacity to critique a reading selected from the first half of the unit of study. It is 1500 words and the readings will be released prior to the commencement of the class in Week 1.

Questions will be released at 5.00pm on 8 March 2024 Sydney, Australia time. The reflective essay is due at at 5.00pm on 29 March 2024 Sydney, Australia time.

Essay Outline and Review (15%): In preparation for the research essay, students will be asked to create a 500-word (approx. one page) essay outline. The outline will summarise their response to the research question, their basic argument and structure) and provide an indication of the primary and secondary sources they will use to support their argument. The outline does not require full sentences or paragraphs, and can use dot points and lists. However, it should contain accurate citations. Footnote citations will not count towards the 500-word limit.

The outline will be marked against a short set of criteria provided in Canvas and should be submitted through Canvas by 4pm on 19 April 2024 Sydney, Australia time.

Students will then be assigned a classmate’s essay outline and provide feedback on it via Canvas by 4pm on 24 April 2024 Sydney, Australia time. Feedback must be constructive as we will discuss in class. Feedback should not exceed 100 words (no citations needed).
This assessment will give 10 marks for the outline and 5 marks for the peer review.

Research essay (65%): This assessment will evaluate the student’s ability to analyse, evaluate, and critique a particular debate, or aspect of a debate, in the context of one of the central themes of the unit.
It is 4500 words and the questions will be released at 5.00pm on 5th April 2024 Sydney, Australia time. The research essay is due at 5.00pm on 24 May 2024 Sydney, Australia time.

Detailed information for each assessment can be found on Canvas.

Special consideration: Successful grants of Special Consideration may involve alternative tasks, as appropriate.

Word limit penalty: A piece of assessment which exceeds the prescribed word limit will attract a penalty of 10% of the total marks available for the piece of assessment for every 100 words, or part thereof. The total word count for essay and other written assessments will include/exclude all footnotes and any bibliography (if required).

Use of editors or proof-readers: The use of assistance in preparing and editing assessment tasks in this unit of study is strictly prohibited. Assistance includes human and automated writing tools (not including spell checking).

Assessment requirements to pass a unit of study: A student must make a genuine attempt at all assessment tasks set out in this Unit of Study in order to obtain a Pass mark and grade (or above); otherwise an Absent Fail grade will be recorded as the student’s result for this Unit of Study.

Assessment criteria

The University awards common result grades, set out in the Coursework Policy 2021 (Schedule 1).

As a general guide, a high distinction indicates work of an exceptional standard, a distinction a very high standard, a credit a good standard, and a pass an acceptable standard.

Result name	Mark range	Description
High distinction	85 - 100	Completely answers the question. Contains striking originality of approach or analysis. Demonstrates exhaustive or innovative research (where independent research required). Exceptionally well written, structured and expressed. Is otherwise exceptional in some way.
Distinction	75 - 84	Completely answers the question. Achieves a critical and evaluative approach to the issues. Content and structure is well organised in support of the argument. Demonstrates extensive research and analysis to support a well-documented argument. Generally well expressed and free from errors. Has a clear structure and is well articulated.
Credit	65 - 74	Covers main issues fairly well in answering the question. Contains no significant errors. Demonstrates an attempted critical approach to the issues. Demonstrates reasonably sound research and analysis in addressing the key issues. Has a clear structure and reasonably clear expression.
Pass	50 - 64	Identifies the key issues, but does not follow through with a reasoned argument. Contains some significant errors. Displays satisfactory engagement with the key issues. Offers a descriptive summary of material relevant to the question. Superficial use of material, and may display a tendency to paraphrase. Demonstrates little evidence of in-depth research or analysis. Adequate expression. Overall, demonstrates the minimum level of competence in the assessment and satisfies the requirements to proceed to higher-level studies in the degree or subject area.
Fail	0 - 49	Does not answer the question. Contains significant or numerous errors. Few or no identifiable arguments. Content that is inappropriate or irrelevant. Lack of research or analysis. Difficult or impossible to understand through poor grammar, expression or structure. Overall, does not demonstrate the minimum level of competence in the assessment.

For more information see guide to grades.

Late submission

In accordance with University policy, these penalties apply when written work is submitted after 11:59pm on the due date:

Deduction of 5% of the maximum mark for each calendar day after the due date.
After ten calendar days late, a mark of zero will be awarded.

This unit has an exception to the standard University policy or supplementary information has been provided by the unit coordinator. This information is displayed below:

The late submission of a piece of assessment, without an approved extension, will attract a penalty of 10% of the total marks available for the piece of assessment per 24 hours or part thereof, after the due time on the due date. For example, a submission after the due time but before the same time the following day will attract a 10% penalty. Late penalties do not apply to exams and tests and any late submission will not be accepted.

Academic integrity

The Current Student website provides information on academic integrity and the resources available to all students. The University expects students and staff to act ethically and honestly and will treat all allegations of academic integrity breaches seriously.

We use similarity detection software to detect potential instances of plagiarism or other forms of academic integrity breach. If such matches indicate evidence of plagiarism or other forms of academic integrity breaches, your teacher is required to report your work for further investigation.

You may only use artificial intelligence and writing assistance tools in assessment tasks if you are permitted to by your unit coordinator, and if you do use them, you must also acknowledge this in your work, either in a footnote or an acknowledgement section.

Studiosity is permitted for postgraduate units unless otherwise indicated by the unit coordinator. The use of this service must be acknowledged in your submission.

Learning support

Simple extensions

If you encounter a problem submitting your work on time, you may be able to apply for an extension of five calendar days through a simple extension.  The application process will be different depending on the type of assessment and extensions cannot be granted for some assessment types like exams.

Special consideration

If exceptional circumstances mean you can’t complete an assessment, you need consideration for a longer period of time, or if you have essential commitments which impact your performance in an assessment, you may be eligible for special consideration or special arrangements.

Special consideration applications will not be affected by a simple extension application.

Using AI responsibly

Co-created with students, AI in Education includes lots of helpful examples of how students use generative AI tools to support their learning. It explains how generative AI works, the different tools available and how to use them responsibly and productively.

Support for students

The Support for Students Policy 2023 reflects the University’s commitment to supporting students in their academic journey and making the University safe for students. It is important that you read and understand this policy so that you are familiar with the range of support services available to you and understand how to engage with them.

The University uses email as its primary source of communication with students who need support under the Support for Students Policy 2023. Make sure you check your University email regularly and respond to any communications received from the University.

Learning resources and detailed information about weekly assessment and learning activities can be accessed via Canvas. It is essential that you visit your unit of study Canvas site to ensure you are up to date with all of your tasks.

If you are having difficulties completing your studies, or are feeling unsure about your progress, we are here to help. You can access the support services offered by the University at any time:

Support and Services (including health and wellbeing services, financial support and learning support)
Course planning and administration
Meet with an Academic Adviser

Weekly schedule

WK	Topic	Learning activity
Week 02	Out of Empire	Lecture (4 hr)
	The States and the Nation	Lecture (4 hr)
	Capital and Labour	Lecture (4 hr)
	Neighbours and Labourers	Lecture (4 hr)
	Individuals and Families	Lecture (4 hr)
	Corporations	Lecture (4 hr)
	Democracy and Rights	Lecture (4 hr)
	Freeing Trade	Lecture (4 hr)
	Commerce and Contract	Lecture (4 hr)
	The Future of the Commonwealth	Lecture (4 hr)

Attendance and class requirements

Attendance: All students are required to attend 70% of classes (or as otherwise specified by the Unit Coordinator) to satisfy the pass requirements for each unit of study. Attendance requirements may be satisfied by in person attendance as specified by the Unit Coordinator. Failure to meet this requirement may result in a student being precluded from undertaking the final assessment. 

For units offered in Intensive mode, participation in all scheduled sessions may be expected by a Unit Coordinator in order to satisfy the requirements of the unit.

Referencing: The Sydney Law School expects you to use the Australian Guide to Legal Citation (4th edition, 2018) for your footnoting style, although you should confirm this with your lecturer, and a link to the library website where this is set out comprehensively is available at Referencing and Citation Styles: AGLC4 

Study commitment

Typically, there is a minimum expectation of 1.5-2 hours of student effort per week per credit point for units of study offered over a full semester. For a 6 credit point unit, this equates to roughly 120-150 hours of student effort in total.

Required readings

Part A – The Commonwealth (3 weeks)

Week 2 Out of Empire

Cooper v Stuart (1889) 14 App Cas 286 (Judicial Committee of the Privy Council).

Commonwealth of Australia Constitution Act 1900 (UK), s. 9.

Parkes, Henry, ‘The Crimson Thread of Kinship Runs Through Us All’ in Sally Warhaft (ed), Well May We Say: The Speeches That Made Australia (Black Inc., 2004) 3-10.

Week 3 The States and the Nation

Amalgamated Society of Engineers v Adelaide Steamship Company (1920) 28 CLR 129 (Engineers’ Case), 144-152.

Victoria v The Commonwealth (1971) 122 CLR 353, only 393-405 (Windeyer J).

Week 4 Capital and Labour

Australian Communist Party v The Commonwealth [1951] HCA 5 (Communist Party Case).

R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10 (Boilermakers’ Case).

‘Australian Strike Leaders Get Gaol,’ 25 July 1949, Associated Press.

Santamaria, BA, B.A. Santamaria: Running the Show: Selected Documents: 1939-1996, ed Patrick Morgan (Miegunyah Press in association with the State Library of Victoria, 2008) [excerpt].

Part B – Persons (4 weeks)

Week 5 Neighbours and Labourers

Ex parte H.V. McKay (1907) 2 CAR 1 (Harvester Case).

Donoghue v Stevenson [1932] AC 562, only 578-599 [speech of Lord Atkin].

Fitzpatrick, Brian, The Australian People, 1788-1945 (Melbourne University Press, 1946) [excerpt].

Week 7 Individuals and Families

Family Law Act 1975.

Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Marion’s Case).

‘Germaine Greer Brings Feminism to Australia’, ABC News In-Depth (1972).

Greer, Germaine, The Female Eunuch (MacGibbon & Kee, 1970) [excerpt].

Week 8 Corporations

Huddart, Parker & Co v Moorehead (1909) 8 CLR 330, 409-410 (Higgins J).

Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468, 484-491 (Barwick CJ).

Ward, Russell, The Australian Legend (1957) [excerpts].

Week 10 Democracy and Rights

Australian Capital Television v Commonwealth (1992) 177 CLR 106.

Finnis, John M, ‘Is Natural Law Theory Compatible with Limited Government?’ in Robert P George (ed), Natural Law, Liberalism, and Morality: Contemporary Essays (Clarendon Press, 1996), ch. 1.

Part C – Markets (2 weeks)

Week 11 Freeing Trade

Cole v Whitfield (1988) 165 CLR 360, only 383-409.

‘Bar News Interviews Sir Garfield Barwick’ [1989] Bar News 9-17.

C.M.H Clark, A History of Australia. Volume 1, From the Earliest Times to the Age of Macquarie (Melbourne University Press, 1962) [excerpt].

Week 12 Commerce and Contract

Commercial Bank of Australia v Amadio (1983) 151 CLR 447.

Sir Anthony Mason, ‘Contract, Good Faith and Equitable Standards of Fair Dealing’ (2000) 116 Law Quarterly Review 66-94.

Part D – The Commonwealth Redux (1 weeks)

Week 13 The Future of the Commonwealth

Walker v The State of New South Wales [1994] HCA 64.

Mitchell, Tanya and Amanda Porter, ‘Commentary: Walker v New South Wales’ in Nicole Watson and Heather Douglas (eds), Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision Making (Routledge, 2021) 54-69.

Learning outcomes

Learning outcomes are what students know, understand and are able to do on completion of a unit of study. They are aligned with the University's graduate qualities and are assessed as part of the curriculum.

Outcomes
Graduate qualities

At the completion of this unit, you should be able to:

LO1. Analyse and synthesise theories of the state and legal philosophy.
LO2. Evaluate and apply critiques of the modern capitalist state to the Australian constitution.
LO3. Evaluate and apply different theorists of law and the state, and so further develop critical reading and writing skills to interpret and transmit knowledge in an essay format.
LO4. Critically reflect in groups on the readings through class discussion exercises.

Graduate qualities

The graduate qualities are the qualities and skills that all University of Sydney graduates must demonstrate on successful completion of an award course. As a future Sydney graduate, the set of qualities have been designed to equip you for the contemporary world.

GQ1	Depth of disciplinary expertise Deep disciplinary expertise is the ability to integrate and rigorously apply knowledge, understanding and skills of a recognised discipline defined by scholarly activity, as well as familiarity with evolving practice of the discipline.
GQ2	Critical thinking and problem solving Critical thinking and problem solving are the questioning of ideas, evidence and assumptions in order to propose and evaluate hypotheses or alternative arguments before formulating a conclusion or a solution to an identified problem.
GQ3	Oral and written communication Effective communication, in both oral and written form, is the clear exchange of meaning in a manner that is appropriate to audience and context.
GQ4	Information and digital literacy Information and digital literacy is the ability to locate, interpret, evaluate, manage, adapt, integrate, create and convey information using appropriate resources, tools and strategies.
GQ5	Inventiveness Generating novel ideas and solutions.
GQ6	Cultural competence Cultural Competence is the ability to actively, ethically, respectfully, and successfully engage across and between cultures. In the Australian context, this includes and celebrates Aboriginal and Torres Strait Islander cultures, knowledge systems, and a mature understanding of contemporary issues.
GQ7	Interdisciplinary effectiveness Interdisciplinary effectiveness is the integration and synthesis of multiple viewpoints and practices, working effectively across disciplinary boundaries.
GQ8	Integrated professional, ethical, and personal identity An integrated professional, ethical and personal identity is understanding the interaction between one’s personal and professional selves in an ethical context.
GQ9	Influence Engaging others in a process, idea or vision.

Outcome map

Learning outcomes	Graduate qualities
Learning outcomes

Responding to student feedback

This section outlines changes made to this unit following staff and student reviews.

This is the first time this unit has been offered

Disclaimer

The University reserves the right to amend units of study or no longer offer certain units, including where there are low enrolment numbers.

To help you understand common terms that we use at the University, we offer an online glossary.

Current students

LAWS5228: The Commonwealth and the Common Law

Semester 1, 2024 [Normal day] - Camperdown/Darlington, Sydney

Overview

Overview

Unit details and rules

Teaching staff

Assessment

Assessment

Assessment summary

Assessment criteria

Late submission

Academic integrity

Learning support

Learning support

Simple extensions

Special consideration

Using AI responsibly

Support for students

Weekly schedule

Weekly schedule

Attendance and class requirements

Study commitment

Required readings

Week 2 Out of Empire

Week 3 The States and the Nation

Week 4 Capital and Labour

Week 5 Neighbours and Labourers

Week 7 Individuals and Families

Week 8 Corporations

Week 10 Democracy and Rights

Week 11 Freeing Trade

Week 12 Commerce and Contract

Week 13 The Future of the Commonwealth

Learning outcomes

Learning outcomes

Graduate qualities

Outcome map

Responding to student feedback

Responding to student feedback

Disclaimer

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Useful links

Media

Student links

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