Essay Question (40%)
Choose one of (a) or (b) (a) Should s 51(xxvi) (‘the race power’) of the Constitution be amended? If so, how? Your answer may include any further amendments considered necessary to support amending s 51(xxvi). Your answer should also demonstrate an understanding of the case law surrounding s 51(xxvi), and the interpretive concerns those cases discussed. OR (b) In Commonwealth v Australian Capital Territory (Same-Sex Marriage Case) (2013) 250 CLR 441, the High Court held that the Commonwealth has the power to pass laws for same-sex marriages under the marriage power (s51(xxi)). Was the High Court correct? Your answer should analyse how the High Court interpreted the marriage power, and any relevant theories of interpretation. -------------------- See the marking guideline for what is expected. In particular, a good essay will develop arguments based on case law – appealing to judicial reasoning and criticising judicial reasoning as appropriate – and academic literature. Essays must be submitted in double line spaced text, 12 point font (use Times New Roman or Arial). The word limit is 2,000 words, excluding footnotes. Footnotes should only be used for references, with no further discussion. Content over 2,000 words will not be marked. A bibliography should not be provided. Do not submit a pdf. Submissions must be a word document. The essay must comply with the Australian Guide to Legal Citation (3 ed). The Guide is available here <> Late submissions will be penalised according to the unit guide.
Assessment Grading:
This is a research essay. You are required to develop a thesis (an argument). You must conduct your own research beyond the textbook to engage with secondary authority (e.g. journal articles). As the assessment description provides, a good essay will analyse both case law and academic arguments. I do not distinguish between comprehension of the ideas and expression of the ideas. If your paper is not written clearly, then no amount of abstract knowledge of constitutional law and theory will assist. Because your writing skills are crucial, I have provided a set of slides on legal writing. You may have seen these in Law, Lawyers, and Society. An example of an HD essay from a previous student is attached, below. The guide to marking, below, provides you with a thick description of what is expected from your writing. You do not necessarily need to achieve each bullet point to get, e.g., anHD. Rather, these indicators can combine in different ways to achieve the grade: High Distinction (85% plus) A High Distinction paper will:
  • Develop a well-reasoned and well-researched argument that explicitly targets the important issues and takes a position.
  • Fairly characterise and then critically address counterargument.
  • Logically appeal to case law and academic argument in support of the paper’s thesis, providing sufficient context and significant analysis.
  • Prioritise relevant materials and arguments, demonstrating a good structural balance.
  • Write in cogent, complete sentences, with impeccable spelling, grammar, and syntax; avoid passive voice, throat-clearing or redundant language, and nominalisations.
  • Exhibit the one paragraph to one argument rule.
  • Contain a clear Introduction and Conclusion that orientate a reader to the argument, essay’s structure, and conclusion.
  • Completely follow the AGLC (3 ed).
Distinction (75 – 84%) A distinction paper will:
  • Present some of the characteristics of a High Distinction paper. That means a distinction paper is likely to:
  • Show a strong grasp of the relevant issues and present a supported argument, but not adequately address counter-argument;
  • Be well-balanced in its approach, but occasionally uneven in weighting for different components, use of case law and academic literature, or in quality of argument;
  • Be well-written – with strong grammar, spelling, and syntax - but instances of redundant language or cumbersome style.
  • Credit (65 – 74%)
A Credit paper will:
  • Identify relevant issues, and maintain an adequate focus on them.
  • Be well-structured, exhibiting a balance of ideas throughout the essay.
  • Exhibit a solid grasp of the materials and demonstrate some ability to engage with them critically.
  • Discuss case law and academic literature, but with insufficient context and analysis of the arguments.
  • Move towards a solid argument.
  • Be adequately written, while showing errors in paragraph structure, grammar, spelling, or syntax.
  • Be adequately and appropriately referenced according to the AGLC.
  • Show features of a proper Introduction – identifying the thesis and structure – and Conclusion.
Pass (50 – 64%) A Pass paper will:
  • Present some of the characteristics of a Credit paper. That means a Pass paper is likely to:
  • Contain a description of the relevant issues and cases, but little academic literature.
  • Contain a loose structure, with uneven attention to different arguments.
  • Provide inadequate context for case discussion, or else some errors of legal analysis.
  • Present some relevant perspectives, but not a solid, consistent argument.
  • Be poorly written, with common errors of paragraphing, grammar, syntax, or spelling.
  • Be inadequately referenced according to the AGLC.
  • Have a generic Introduction and/or Conclusion.
Fail (below 50%) Papers which exhibit any of the following characteristics may be awarded a Fail grade:
  • the paper does not demonstrate an adequate grasp of the legal issues and the Court’s analysis;
  • the paper does not demonstrate comprehension of the set materials;
  • the paper fails to address the essay topic meaningfully;
  • written expression is so poor that the student’s description, analysis, interpretation or evaluation of the literature is frequently unclear;
  • referencing and citation is so poor as to be meaningless with regard to providing adequate support for the description, analysis and argument;
  • the paper exhibits some evidence of plagiarism.