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Country : AustraliaService Required : AssignmentSubject : Constitutional LawLevel of Study : Undergraduate
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LAW EXTENSION COMMITTEE
SUMMER 2023-24
06 AUSTRALIAN
CONSTITUTIONAL LAW
ASSIGNMENT
INSTRUCTIONS
In Australian Constitutional Law, there is only ONE ASSIGNMENT. This assignment is
compulsory and must be submitted by all students. The assignment will constitute 20% of the
final mark in this subject.
Assignments must be submitted by the due date unless an extension has been granted.
Extensions need to be requested by email prior to the assignment due date and specific
supporting evidence provided. Late assignments attract a penalty of one mark out of 20, or 5%
of the total marks available, per day. A pass mark is 50%. Assignments that are received more
than ten days after the published due date will not be accepted. Please note that students
granted an extension must still submit their assignment within ten days of the original
assignment due date.
Assignments are assessed according to the “Assignment Grading and Assessment Criteria”
outlined in the LEC Guide to Assignments. This guide also contains the rules and guidelines
regarding the presentation of assignments and instructions on how to submit an assignment
and is available from the Guides and Policies section of Canvas. Please read this guide
carefully before completing and submitting this assignment.
Any submission which uses the ideas of others without attribution, or fails to reference
properly the words and ideas of others, or which has been prepared – in whole or in part – by
someone other than the student, will be regarded as plagiarism – and severe consequences
apply. Students must acknowledge any assistance provided in preparing this assignment,
including the use of automated writing tools, artificial intelligence (AI), reference generators,
and translation software.
The word length for this assignment should be between 3000-4000 words (excluding citation
footnotes and bibliography).
Completed assignments should be lodged through Canvas and received by 11:59pm AEDT
(Australian Eastern Daylight Time) on Tuesday 16 January 2024.
Please put your STUDENT NUMBER and SUBJECT in the HEADER of your document. You are no longer required to
fill out a cover page.
By placing their name on the assignment students are claiming the work they submit as their own. If in fact it is not,
this is both plagiarism and unprofessional conduct.
Compulsory Assignment Question
The Facts
It is December of 2023 and there is chaos everywhere.
The Russian invasion of Ukraine continues.
The Middle East is in turmoil, again.
It is ever more expensive to buy essential goods.
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Polling and focus groups show that Australians are ever more concerned
about “law and order” and “pocketbook issues”.
Large protests over various political issues , including the cost of living,
have seen major cities fall into considera ble disorder. Protests and mass
arrests are now so common that they have fallen from the evening
newscasts.
There have been protests each Friday outside Parliament House in
Canberra. Some protests have managed to evade parliamentary security,
with protesters even making their way to the Parliament’s kitchens,
where pantries have been ‘ looted’ and ‘boosted’.
The parliamentary
kitchens were even used by homeless protesters in June to produce video
content of the “Great Parliamentary Bake Off ”, streamed from the
kitchens when the Parliament was in recess and no one knew the
kitchens had been ‘liberated’. The inadequate security of the Canberra
parliamentary precinct has caused increasing concerns as some Friday
protests have seen driveways blocked by violent protesters trying to
prevent parliamentarians and staffers getting to Canberra airport to
leave at the end of a sitting week.
In Melbourne, meanwhile, protesters have used
social media to
simultaneously occupy cafes to protest the high costs of cappucc inos,
lattes, and, even, some beverage called a ‘piccolo’.
In Adelaide, protests turned violent when Port Adelaide football club
supporters occupied the wharves of the port facility to protest the AFL’s
discriminatory treatment and resisted police eviction.
In Fremantle, locals who have formed the “ Frexit” movement to protest
over-development, took over Perth Stadium in July, and were dispersed
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only by tear gas, allegations of police brutality, and threats of the
Dockers football team being relocated to Bunbury.
In Sydney, inner west residents, long oppressed by the debilitating
grimness of their lives spent so far from the sea, have been mobbing
nearby urban railway stations and parks to demand the imposition of
rent and eviction controls. Trains have been stopped from operating.
Area landlords have had their faces and names placed on social media
with ominous threats of violent reprisals if they do not agree to a rent
freeze and eviction bans . Local tenants have also periodically blockaded
King Street in Newtown and, then, to the horror of many onlookers,
gone on to perform “street theatre”, which traumatised even hardened
campaigners against the current Parliament.
Needless to say, across Australia, thousands of people have been
arrested in the las t three months due to their involvement in violent
protest actions, with most remanded to await trial. Some of the States
have claimed they cannot afford to now keep order in their jurisdictions,
so the Commonwealth has helped the States to transform their former
Covid quarantine centres, located in remote locations, into remand
prisons, even loaning Defence personnel to help staff the facilities. All
of these cases have clogged up the legal system, with some prisoners
remanded in what is claimed to be “Dickensian” conditions.
But these were not the most dramatic of events – not even the street
theatre.
Recurring
cyberattacks
over
2023
have
caused
great
damage
to
electronic banking and purchasing, with more and more Australians
demanding to be paid in ca sh and wanting to settle transactions in cash.
Cash payments are now made, quite often, at a discount to the nominal
purchase price, as “cash is king”. This separate “ cash economy” has
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meant many Australian individuals and businesses are not recording and
accounting for transactions and are thus not paying GST. Even doctors,
accountants, and lawyers, are now demanding payment in cash. There is
a surge in sale of domestic safes and strong -rooms to hold large bundles
of cash.
At the same time, unreliable and costly energy is causing the private
economy to contract. Fewer people have money to spend on shopping
and on holidays.
Instead, mortgage payments, rents, and energy bills
are absorbing more and more of Australians’ wages and salaries.
All across Australia, shortages of money and unreliable electronic
banking systems mean that many Australians do not pay bills on time.
Energy providers have cut customers off, meaning that some Australians
spent the winter freezing and now face a hot summer without a ir
conditioning. News media is full of reports of ‘debt collectors’ sent by
energy companies to the homes of delinquent debtors who have not paid
their bills.
This societal chaos is finding its way to all manner of places especially
into the workings of ports and airports and railways. There is almost no
form of transport that is unaffected. Railway journeys are not paid for.
Toll roads are travelled now by cars whose drivers have no means or no
intention of paying road tolls. While air travel suffers differently, fewer
people can book and pay for air travel, because of the regular
cyberattacks.
As a result of all this, the once new government is now very unpopular.
There are murmurs in the corridors of parliament about leadership
challenges.
The government hopes, however, that comprehensive new
legislation might help it recover politically and remediate the society’s
woes.
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The only problem is that the government parties have a working
majority in the House of Representatives only because of agreements
with various independent members of the House.
The Senate meanwhile has no majority and, instead, every piece of
legislation the government has tried to advance has to be individually
negotiated with Senators. As a result , little of the government’s May
2022 legislative agenda has been acted upon , and various appropriation
bills, that fund governmental operations, remain unpassed.
The Proposed Act
Undaunted, the Prime Minister is planning to introduce into the
Parliament a new omnibus recovery bill, the National Investment Act
(Act).
The Act itself includes these features:
Part 1 establishes the Australian Security Agency (Agency) to
investigate and prosecute federal crimes, especially the constant
protests that are occurring in major cities , coordinated by social
media. The Agency will have its own independent fund to finance
its activities and will have the power to:
(a) require Australians and non -citizens alike to obtain a
permit to use the internet by making telecommunications
companies;
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i.
require all customers for phone and internet services
to register their identities with their passports; and
ii.
seek Agency approval for the use of social media for
any political purposes.
(b) investigate and detain any person who the Agency
suspects may become involv ed in activities liable to
diminish trust in any aspect of government.
(c)
require
messages
commercial
and
and
digital
information
that
media
to
enhance
promote
trust
in
government;
(d) apply to the Federal Circuit Court for an order forfeiting
the property of any person who, on the balance of
probabilities, is found by the Court to have created or
disseminated media content that is likely to reduce trust
in government.
All property confiscated becomes the
asset of the Fund established by part 2(c) below.
Part 2 provides that from 01 April 2024 :
(a) all Australian persons, businesses, and State and local
governments are prohibited from using physical cash and
coins for purchases of goods and services;
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(b) all Australian persons, businesses, and State and local
governments are prohibited from withdrawing cash and
coins from any bank or financial institution; and
(c)
the Agency has the power to confiscate any physical cash
and coins seized from persons violating (a) and (b) and
place the confiscated monies in its National Investment
Fund (Fund).
Part 3 allows the Agency to use the assets of the Fund to pay for
its activities.
Part 4 allows the Minister for Transportation to improve railways,
ports, and airports, in critical locations by:
(a)
using monies collected by the Fu nd to pay for transport
infrastructure improvements;
(b)
allowing those arrested in recent protests to have the
option of choosing whether to be detained indefinitely in
prison facilities (provided for by Part 5) o r, instead, opt
to work for 10 years as labourers on the building of new
transport infrastructure for a daily fee of $10.00; and
Part 5 allows the Attorney-General to withdraw money from the
Fund to acquire property in the Cocos Islands and Lord Howe
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Island for the building of new prison facilities for the holding of
any persons arrested in recent protests and violent crimes.
The Government’s view is that the proposed Act will solve many
national problems and will be a decisive response to the chaos and
disorder that plagues Australia.
It is unknown whether the proposed Act could pass th is current
Parliament.
There is widespread
concern in the legal community
about the
constitutional validity of many aspects of the proposed Act.
There is also the ongoing parliamentary impasse over the Budget, with
the Senate holding up appropriation bills.
The Governor-General
All of these controversies, inside and outside the Parliament, have led to
a renewed focus on the Constitution and, especially, the GovernorGeneral, His Excellency, Admiral Sir Horace Her cules Bracegirdle,
RAN (Retired).
As you are a prominent constitutional lawyer , Sir Horace’s private
secretary has approached you t o provide a complete analysis of the legal
predicament
confronting
Sir
Horace .
Given
the
widespread
transportation problems , you drive to Canberra.
In the public debate, there are widespread concerns that there will be
endless litigation and challenges to the proposed Act’s validity.
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There is also a worry that the Parliament’s current tumultuous state and
precarious House and Senate numbers mean the proposed Act will never
pass.
When you meet with Sir Horace at Government House at Yarralumla,
you are shown into a small private office, where Sir Horace’s desk is
covered in papers.
While on first meeting Sir Horace, he says to you, “I am but a simple
sailor and no constitutional lawyer like you”, it becomes quickly
apparent to you that Sir Horace knows much more than he lets on .
Sir Horace is, in particular, evidently concerned that he will be asked by
the Prime Ministe r to give royal assent to legislation of dubious
validity.
Over afternoon tea and Anzac biscuits, Sir Horace says that he takes his
constitutional duties very seriously, especially in view of the current
chaos and Sir Horace wants you to understand how p erilous he sees the
current state of the current Parliament.
Sir Horace is unsure what his
options are.
Speaking bluntly to you, Sir Hoarce says that he is briefing you to
advise
him,
confidentially
and
directly,
on
all
of
the
current
constitutional issu es facing Australia, and, importantly, to provide him
with constitutionally valid solutions .
It is Sir Horace’s intention that he will meet with the Prime Minister and
Opposition Leader , after the Christmas holidays, to discuss the ongoing
crisis and to “… chart a way forward to rebuild national confidence ”.
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You finish your meeting with Sir Horace with his saying that he worries
that the new proposed Act is a misguided priority, given the serious
financial issues facing Australia given the failure to pa ss appropriation
bills for 2024. Sir Horace adds that he and Lady Bracegirdle made the
chewy Anzac biscuits, which you had for afternoon tea, in the
Government House kitchens, as they have no catering funds , owing to
the ongoing state of austerity.
Sir Horace concludes your meeting by wishing you a safe journey home
and asking you to apply yourself, urgently, to this new brief, saying “I
expect you to quickly answer every question and to solve all my
problems – especially the ones that I have not yet thought about.”
As you are leaving Government House, the private secretary to Sir
Horace, Mrs Montblanc, escorts you to your car and she informs you
that Sir Horace runs a tight ship and that the Governor -General’s
expectation is that your advice will be free of errors, proofed, and
written in a clear and comprehensive manner.
Mrs Montblanc mentions to you, ominously, that a lawyer recommended
to Sir Horace was subsequently “unceremoniously dropped ” when it was
learned this lawyer wrote an advice with typographical errors and
erroneous and irrelevant footnotes.
Mrs Montblanc adds – as you try to close the door on your car, which
was badly damaged by Newtown rioters when you tried to ‘ run the
blockade’ of King Street – that if you can quickly and completely
answer Sir Horace’s brief, then you will be paid in cash .
A DVISE THE G OVERNOR -G ENERAL .
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