2025 Questions:

Question 1: The Separation of Powers

Having regard to the separation of powers, discuss whether the Administrative Review Tribunal is best categorised as part of the executive or judiciary.

• Students may wish to explore the constitutional and functional differences between judicial and administrative decision-making.
• Students may consider the degree to which the Administrative Review Tribunal operates with judicial independence or is subject to executive direction or policy.
• Discussion may include the persuasive or binding nature of Tribunal decisions and how this positioning reflects on the Administrative Review Tribunal’s institutional character.
• Students should consider how the Administrative Review Tribunal interacts with other arms of the executive (such as government departments and ministers) and with the Courts.
• Comparative examples from other jurisdictions or past Australian tribunals (such as the NCAT) may also be instructive.

Question 2: The Aliens Power

Discuss ASF17 v Commonwealth [2024] HCA 19 compared to the High Court’s ruling in NZYQ v Minister for Immigration [2023] HCA 37.

• Students should identify and analyse the key factual differences between the two cases.
• Students may examine how the High Court interpreted and applied s 51(xix) of the Constitution in each case.
• Discussion could include the continuing impact and relevance of Love v Commonwealth of Australia [2020] HCA 3.
• Consider whether these decisions signal a shift or continuity in the Court's approach to constitutional identity and immigration detention powers.
• Students may also wish to reflect on broader implications for Indigenous constitutional recognition and international human rights law.

Question 3: The Acquisition of Property Power

Discuss the powers under s 51(xxxi) of the Australian Constitution, and the recent development in relation to Native title as considered in Commonwealth v Yunupingu [2023] FCAFC 75.

• Students should discuss the constitutional requirement that acquisitions of property by the Commonwealth must be on "just terms".
• Reference should be made to Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 as foundational authority on "just terms".
• Consider how the Yunupingu decision develops or clarifies the application of s 51(xxxi), especially in the context of Native Title rights.
• Students may wish to discuss the interplay between statutory land rights schemes, constitutional protections, and evolving understandings of property.
• The broader implications for Indigenous land justice and reconciliation could also be examined.

Question 4: Discuss and evaluate any significant developments in constitutional law in 2024- 2025

• Students may wish to focus on key High Court decisions handed down in 2024–2025.
• Legislative or political developments with constitutional implications may also be discussed.
• Examples might include developments concerning implied freedoms, structural constitutional principles, or executive accountability.
• Students should critically evaluate the significance of these developments in shaping the trajectory of Australian constitutional law.

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