Issue 11, Semester 1
By Sverre Gunnersen
When are all these Principles of Public Law are going to “come together” like you’ve been assured they will? Be warned: for me they didn’t until it was too late, after the exam.
You see, unlike Obligations, the PPL exam is not simply a matter of running through a checklist of laws to find the right answer, and there is often no right answer. The marks are found in the grapple, not the conclusion. You may recall that in Dietrich, there was no specific rule about a right to legal counsel – the court had to grapple with principles of the administration of justice and the rule of law to determine what the right ‘should’ be.
For this subject to “come together”, you must acknowledge that there are certain principles woven into the fabric of Australian law. Even when existing law provides an answer, there may be argument that in this new situation that the existing law offends some wider principle.
For example, in the 2017 exam, an OK response would be that funding for the establishment of the National Electricity Investigatory Organisation must come from a valid appropriation, that Senate approval would be needed for that, that the senate opposed the plan, and in any case there was no s 51 head of power. But a great answer (one far better than the one I wrote) would also question the authority under which the government is operating: s 61 of the Constitution, or the prerogative power? And what about the compelling of witnesses, is that a breach of the separation of powers? So even if there is a direct answer, one must grapple with as many different issues as possible.
The exam is really just about issue-spotting, one of the most difficult skills in law. So what should you do? Since post-PPL, I have developed an issue-spotting cheat sheet for every exam. The cheat sheet is no bigger than a single A4 sheet of paper, and I print out enough copies to use a different sheet for each question. For PPL, using the example question above, the relevant parts of a cheat sheet might look like this (with page numbers referring to the relevant page of my exam notes):
For the question above, each of these elements in the cheat sheet would get a highlight during reading time, and then during writing time I’d be working from the cheat sheet..
When I got into the PPL exam, I panicked and went for a dot point approach. This was a mistake and it cost me marks. Take each issue above and write a paragraph for each. Something like (shortened to fit this article):
One condition is that the government can only act within a s51 head of power. It is notable that there is no specific head of power for ‘energy’. However,…weakly argued…interstate trade and commerce…low prospects of success.
Another condition is that…explain power of appropriation…senate approval unlikely.
Because the executive is seeking to exert power…consider source…prerogative power…common law…s61…Ruddock v Vadarlis…probably s61.
The Australian Constitutional model follows…separation of powers…Montesquieu…Vic Stevedoring…compulsion of witnesses…probably invalid.
On balance…poor prospects.
You will notice that each paragraph follows the IRAC structure.
With mid-semester assessments behind you, you should now be bringing your class notes together into some kind of exam notes (20-30 pages), readings notes (as long as you’d like), and an issue spotting sheet. Then my suggestion is that for every past exam you can get your hands on, for every question, use your cheat sheet and identify every issue that does NOT apply and why. This way, you won’t miss any (unless they’re not on your cheat sheet). In the exam you won’t have time to do this, but if you’ve practiced good issue spotting your cheat sheet highlights will be fast and accurate. Just remember that your examiner’s marking sheet will say something like “addressed separation of powers” or “discussed appropriation requirements”, and you want ticks not crosses.
And at the end of the day, remember that it’s just a number, for one subject, in one degree. Yes it’s stressful, but in 10 years you won’t even remember your result. And believe it or not, issue spotting gets easier because the subjects get progressively more specific.
Good luck and all the best.
Appendix - The start of a cheat sheet: