The course is designed to review the ever-changing scope and operation of the executive power inherent in the Australian Constitution. It is set against the background of the UK development of the concept (largely by the courts). But its primary focus is on s 61 of the Constitution and relevant  decisions of the High Court. It draws also on available literature.

Because of the large expansion of executive power in recent years it then moves on to explore current issues. These are associated with powers relating to migration and 'terrorism', the trend towards republicanising the legal system

The course content uses an historical, analytical and topical approach to enable the potential of the concept of executive power in Australia to be appreciated and in particular focuses on:

• the emergence of the concept of an Australian executive power and the consequential progressive reduction in reliance on prerogative power as a useful concept
• the conventions and law governing the exercise of executive power (by Governor-General, Ministers, Cabinet and administrators)
• the constitutional grounding of responsible government and its effectiveness in the 21st century
• the narrowing of the traditional immunities and privileges the common law extends to the Crown and the impact of the practice by the executive of privatising and contracting out
• federal issues relating to executive power, including the issues that arise if there is a conflict between the exercise of Commonwealth and State executive power
• the unique position of the executive in the ACT
• challenges to the protection, through the rule of law, of individuals, using as examples counter-terrorism law and migration law.

Learning Outcomes

Upon successful completion, students will have the knowledge and skills to:

1. Demonstrate mastery of knowledge and understanding of the principles and context of executive power;
2. Explain, distinguish and critically examine the complexity of the law relating to executive power;
3. Demonstrate, through identification and critical evaluation, an understanding of the implications of the sometimes not altogether unanimous views of the judges;
4. Identify, examine and review the facilitation of the exercise of executive functions according to law, demonstrating an understanding of both its scope and its limitations; and
5. Plan, design and execute a research project that identifies, critically examines and communicates complex theoretical issues and practical problems in relation to the exercise of executive power, demonstrating relevant research principles and techniques.

Required Resources

An E-brick will be available on the Wattle site.

Students are required to have read prior to each class. For this reason, the required reading has been kept to a minimum.

Staff Feedback

Students will be given feedback in the following forms in this course:

• written comments
• verbal comments
• feedback to whole class, groups, individuals, focus group etc

Student Feedback

ANU is committed to the demonstration of educational excellence and regularly seeks feedback from students. Students are encouraged to offer feedback directly to their Course Convener or through their College and Course representatives (if applicable). The feedback given in these surveys is anonymous and provides the Colleges, University Education Committee and Academic Board with opportunities to recognise excellent teaching, and opportunities for improvement. The Surveys and Evaluation website provides more information on student surveys at ANU and reports on the feedback provided on ANU courses.

Other Information

Task submission times refer to Canberra time (AEST/AEDT).

Extensions, late submission and penalties: https://law.anu.edu.au/current-students/policies-procedures/extensions-late-submission-and-penalties

Deferred examination: http://www.anu.edu.au/students/program-administration/assessments-exams/deferred-examinations

Special consideration: http://www.anu.edu.au/students/program-administration/assessments-exams/special-assessment-consideration

Word length and excess word penalties: https://law.anu.edu.au/current-students/policies-procedures/word-length-and-excess-word-penalties

Further information about the course: is available from the course WATTLE page. Students are required to access the WATTLE site regularly throughout the course for any announcements relating to the course.

Class Schedule

Week/Session	Summary of Activities	Assessment
1	Why is executive power such a concern?
2	Separation of powers	Class participation
3	Responsible government	Class participation
4	The concept of the Crown and what the Constitution says about the executive	Class participation
5	Non-statutory executive power	Class participation
6	Statutory modification of non-statutory executive power	Class participation
7	What Williams Wrought (Part 1): The law on expenditure before Williams and the Williams decisions	Class participation
8	What Williams Wrought (Part 2): The aftermath of Williams	Class participation
9	Delegated legislation	Class participation
10	Justiciability	Class participation
11	The treaty power and the war power	Class participation
12	The use (or abuse) of the prorogation	Class participation
13	Judicial review remedies	Class participation
14	The integrity branch	Class participation
15	Deference	Class participation

Assessment Summary

Assessment task	Value	Due Date	Return of assessment	Learning Outcomes
Class Participation	10 %	*	04/09/2021	1, 2, 3, 4
Research essays	90 %	24/09/2021	11/10/2021	1, 2, 3, 4, 5

* If the Due Date and Return of Assessment date are blank, see the Assessment Tab for specific Assessment Task details

Policies

ANU has educational policies, procedures and guidelines, which are designed to ensure that staff and students are aware of the University’s academic standards, and implement them. Students are expected to have read the Academic Misconduct Rule before the commencement of their course. Other key policies and guidelines include:

• Student Assessment (Coursework) Policy and Procedure
• Special Assessment Consideration Policy and General Information 
• Student Surveys and Evaluations
• Deferred Examinations
• Student Complaint Resolution Policy and Procedure

Assessment Requirements

The ANU is using Turnitin to enhance student citation and referencing techniques, and to assess assignment submissions as a component of the University's approach to managing Academic Integrity. For additional information regarding Turnitin please visit the Academic Integrity . In rare cases where online submission using Turnitin software is not technically possible; or where not using Turnitin software has been justified by the Course Convener and approved by the Associate Dean (Education) on the basis of the teaching model being employed; students shall submit assessment online via ‘Wattle’ outside of Turnitin, or failing that in hard copy, or through a combination of submission methods as approved by the Associate Dean (Education). The submission method is detailed below.

Moderation of Assessment

Marks that are allocated during Semester are to be considered provisional until formalised by the College examiners meeting at the end of each Semester. If appropriate, some moderation of marks might be applied prior to final results being released.

Participation

For all courses taught in any mode (whether face to face or online), the ANU College of Law considers participation in the classes offered to be an important part of the educational experience of the graduate program. Students are expected to attend all classes.

If circumstances arise which are beyond a student’s control and they are unable to attend a class, the student should contact the Course Convenor in advance (where possible), so that the convenor can adjust their expectations in relation to numbers for that class. If it is not possible to give advance notice, students should send the convenor an email as soon as possible with evidence to support the reason for failure to attend.

Assessment Task 1

Class Participation

Brief Description: Participating in class discussions is an essential component of learning the content of this course. Much of the time in class will be spent discussing the content of the prescribed reading matter as a class, rather than the content being presented only in the form of lectures given by the convener. Students cannot expect to get the full benefit of this course unless they participate actively in this process. This assessment task is compulsory; the choice not to participate will result in a mark that could be as low as 0/10.

Value or weighting: 10% of the final mark for the course. 

Estimated return date: Before Sunday, 5 September

Assessment Criteria: Marks will be awarded for -

• contributing to the group’s understanding of the course;
• making accurate reference to the material assigned;
• using concise and engaging oral skills; and
• demonstrating critical thinking.

Assessment Task 2

Research essays

The final assessment will consist of 2 research essays. Each essay has a maximum word limit of 3,500 words and each is worth 45% of your overall mark. The questions those essays may address will be set out in a document that will be released on Monday, 30 August.

 

If you would like to address a question that is not covered in that document, you may but this will need to be approved by the course convener and that approval must be sought no later than Monday, 6 September.

Due date: Friday, 24 September 2021 by no later than 5pm. Submissions should be made through the Turnitin function on Wattle. Late submissions without an extension are permitted, although late penalties will apply.

Length: 7,000 words (3,500 words for each essay)

Estimated Date of Results: Before Monday, 11 October.

Assessment Criteria:

a. Understanding of the Issues

• addresses the question and covers all the important points
• evidence of close consideration of the question and the research materials drawn on
• issues raised by the topic are clearly and concisely identified
• material chosen relates clearly to the topic and is analysed not just summarised or quoted extensively

 b. Communication & Development of Argument

• clear theme or argument
• arguments logical and well-organised
• ideas/paragraphs linked coherently

c. Argument/Analysis

• originality of ideas and critical analysis of the material
• complexity and insight in dealing with theory/ideas
• suggestions for change where appropriate
• interdisciplinary perspective where appropriate
• addressing opposing arguments
• well-reasoned conclusions

 d. Research

• research covering primary and secondary materials
• good organisation of sources and ability to synthesise all the research materials used
• use of theoretical material where appropriate
• range of research sources
• integration of material from research resources into the essay

 e. Presentation, style and referencing

• good use of structure, section headings and paragraphs
• clarity and conciseness of expression, interesting and engaging of reader
• use of appropriate terminology and correct grammar, syntax and spelling
• full and accurate footnotes together with a bibliography – every proposition of law must be supported by authority.
• style according to Australian Guide to Legal Citation
• adherence to word limit

Academic Integrity

Academic integrity is a core part of the ANU culture as a community of scholars. At its heart, academic integrity is about behaving ethically, committing to honest and responsible scholarly practice and upholding these values with respect and fairness.

The ANU commits to assisting all members of our community to understand how to engage in academic work in ways that are consistent with, and actively support academic integrity. The ANU expects staff and students to be familiar with the academic integrity principle and Academic Misconduct Rule, uphold high standards of academic integrity and act ethically and honestly, to ensure the quality and value of the qualification that you will graduate with.

The Academic Misconduct Rule is in place to promote academic integrity and manage academic misconduct. Very minor breaches of the academic integrity principle may result in a reduction of marks of up to 10% of the total marks available for the assessment. The ANU offers a number of online and in person services to assist students with their assignments, examinations, and other learning activities. Visit the Academic Skills website for more information about academic integrity, your responsibilities and for assistance with your assignments, writing skills and study.

Online Submission

You will be required to electronically sign a declaration as part of the submission of your assignment. Please keep a copy of the assignment for your records. Unless an exemption has been approved by the Associate Dean (Education) submission must be through Turnitin.

Hardcopy Submission

For some forms of assessment (hand written assignments, art works, laboratory notes, etc.) hard copy submission is appropriate when approved by the Associate Dean (Education). Hard copy submissions must utilise the Assignment Cover Sheet. Please keep a copy of tasks completed for your records.

Late Submission

Individual assessment tasks may or may not allow for late submission. Policy regarding late submission is detailed below:

• Late submission not permitted. If submission of assessment tasks without an extension after the due date is not permitted, a mark of 0 will be awarded.
• Late submission permitted. Late submission of assessment tasks without an extension are penalised at the rate of 5% of the possible marks available per working day or part thereof. Late submission of assessment tasks is not accepted after 10 working days after the due date, or on or after the date specified in the course outline for the return of the assessment item.
• Late submission is not accepted for test or examinations.
• Late submission with an extension. To ensure equity for all students, the 5% penalty per working day for late submission of work does not apply if you have been given an extension. Where an extension is granted, the revised due date and submission time is provided in writing. Please note that the revised due date is calculated by including weekends and public holidays. Regardless of which day of the week the revised due date falls on, students who submit after that date are penalised by 5% of the possible marks available for the assessment task per day or part thereof.

Referencing Requirements

Accepted academic practice for referencing sources that you use in presentations can be found via the links on the Wattle site, under the file named “ANU and College Policies, Program Information, Student Support Services and Assessment”. Alternatively, you can seek help through the Students Learning Development website.

Extensions and Penalties

Extensions and late submission of assessment pieces are covered by the Student Assessment (Coursework) Policy and Procedure. Extensions may be granted for assessment pieces that are not examinations or take-home examinations. If you need an extension, you must request an extension in writing on or before the due date. If you have documented and appropriate medical evidence that demonstrates you were not able to request an extension on or before the due date, you may be able to request it after the due date.

Privacy Notice

The ANU has made a number of third party, online, databases available for students to use. Use of each online database is conditional on student end users first agreeing to the database licensor’s terms of service and/or privacy policy. Students should read these carefully. In some cases student end users will be required to register an account with the database licensor and submit personal information, including their: first name; last name; ANU email address; and other information.
In cases where student end users are asked to submit ‘content’ to a database, such as an assignment or short answers, the database licensor may only use the student’s ‘content’ in accordance with the terms of service – including any (copyright) licence the student grants to the database licensor. Any personal information or content a student submits may be stored by the licensor, potentially offshore, and will be used to process the database service in accordance with the licensors terms of service and/or privacy policy.
If any student chooses not to agree to the database licensor’s terms of service or privacy policy, the student will not be able to access and use the database. In these circumstances students should contact their lecturer to enquire about alternative arrangements that are available.

Distribution of grades policy

Academic Quality Assurance Committee monitors the performance of students, including attrition, further study and employment rates and grade distribution, and College reports on quality assurance processes for assessment activities, including alignment with national and international disciplinary and interdisciplinary standards, as well as qualification type learning outcomes.

Since first semester 1994, ANU uses a grading scale for all courses. This grading scale is used by all academic areas of the University.

Support for students

The University offers students support through several different services. You may contact the services listed below directly or seek advice from your Course Convener, Student Administrators, or your College and Course representatives (if applicable).

• ANU Health, safety & wellbeing for medical services, counselling, mental health and spiritual support
• ANU Diversity and inclusion for students with a disability or ongoing or chronic illness
• ANU Dean of Students for confidential, impartial advice and help to resolve problems between students and the academic or administrative areas of the University
• ANU Academic Skills and Learning Centre supports you make your own decisions about how you learn and manage your workload.
• ANU Counselling Centre promotes, supports and enhances mental health and wellbeing within the University student community.
• ANUSA supports and represents undergraduate and ANU College students
• PARSA supports and represents postgraduate and research students