06 Winter 2019 Assignment Final PDF

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LAW EXTENSION COMMITTEE 06 CONSTITUTIONAL LAW

WINTER 2019 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 Guide to the Presentation and Submission of 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. The maximum word length for this assignment is 2500 words (excluding all footnotes and bibliography). Completed assignments should be lodged through Canvas and received by 11:59pm (Australian Eastern Standard Time) on Wednesday 12 June 2019.

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COMPULSORY ASSIGNMENT It is May 2019 and you are a constitutional lawyer in Sydney. You are looking forward to a relaxing break in the upcoming Winter, watching the South Sydney Rabbitohs continue to win the NRL and Richmond continue to disappoint in the AFL. Nonetheless, you have been hard at work in this autumnal season. Also, there is a Federal election on now and it is all anyone is talking about in your firm. Late on a Friday afternoon, as you prepare to pack up, your telephone rings and you are asked to go to Canberra on Monday to

meet urgently with the newly appointed Minister for Government Security, Senator Hooper Tronk of Tasmania. As you know, Senator Tronk administers the new Government Security Department ("GSD"), which was created by the recent Budget. The GSD is a new department and there has been much media and academic criticism that the GSD is a potentially Orwellian bureaucracy. You meet with Senator Tronk at Parliament House on Monday afternoon. Over afternoon tea, Senator Tronk informs you that he is concerned that Australia’s politics and elections are open to influence by foreigners, fraudsters, and corruption. He worries, also, that the Australian Government has no idea who is in the country, or who is and is not an Australian citizen. When you ask the Senator for his basis for saying any of this, he promises you will receive a “full security briefing in due course”. He also adds that the Australian Government needs to know who is a citizen and what skills they have because conscription may be required to be introduced in time of war and emergency. Senator Tronk says to you, “I am the Government security minister – how do I secure the Government if I cannot conscript people?” When you ask Senator Tronk what, precisely, he wants to conscript people for, he responds, “I have not decided yet – the security situation is very fluid. But it is a power the Government must have, you know.”

Senator Tronk makes many references to recent terrorist attacks overseas and says to you, while serving sponge cake, that, “the Australian people expect us to protect them from terrorism and subversion– and to ensure that our politics is about Australians and not foreigners! What if the real enemies are within?” Senator Tronk also complains to you about social media platforms, saying that social media influences elections and that it needs to be much better regulated by the Government. Senator Tronk hands you a copy of the bill for his proposed Government Security Act ("the Act"). The proposed Act, in Senator Tronk's view, will protect Australians from political and electoral subversion. The proposed Act’s preamble states that this is “an Act to secure the Australian Government and to protect the People and Parliament from foreign subversion”. The proposed Act’s main parts are Part 1 confers power on the Minister for Government Security to deem any person on reasonable grounds to be a threat to national security and: for Australian citizens: require them to be finger-printed, have a DNA sample taken, and report to their local police station each day; and for non-citizens: approach the Federal Court for an order that the person be detained pending deportation, and finger-printing and a DNA sample taken.

All records of identity and DNA samples are to be stored in the new GSD’s Government Security Archive.

Part 2 provides that all Australian Citizens who are aged 18 or older: must acquire an Australia Card identity card (“Identity Card”); must enrol to vote; must register for conscription by the Australian Government by answering a long biographical questionnaire; must carry their Identity Card at all times. Failure to produce a valid Identity Card when required by Police is a criminal offence punishable by a fine of $100,000 and/or 3 years in prison. who fail to: (i) enrol to vote; and/or (ii) register for conscription; are guilty of a criminal offence that is punished by a term of not more than 10 years imprisonment and prohibited from voting for 25 years. Part 3 establishes a Government Security Protection Board ("Board"), which: promotes voting rights and the need to always carry your Australia Card;

promotes registration for conscription; requires payment of an annual Government Security Fee of $100,000 (“Fee”) to be paid by all social media businesses that are located in Sydney, Brisbane, Darwin, and Melbourne; and confers power on the Board to order internet service providers to ban social media websites “that undermine Australian national security”. Part 4 requires that all “Government Suppliers” (defined as "any person(s), sole trader, partnership, association or corporation" that supplies goods and services to the Australian Government) must become registered suppliers under the Act by purchasing a Government Security Licence ("Licence") from the Board by 01 April 2020. Part 5 requires that all fees and charges collected pursuant to Part (3)(c) and Part 4 to be paid into the GSD Fund ("Fund"). The Board may use the Fund's monies for any purpose set out in the Act, including making grants to agile and disruptive security entrepreneurs in Hobart, Perth, Adelaide, Canberra, and Norfolk Island. Senator Tronk tells you that he is confident the bill would be a valid law. However, he says that he has met repeatedly with the AttorneyGeneral, Ms Nikita Gunn-Runner QC MP, to discuss this bill. The Attorney-General has, apparently, informally advised Senator Tronk that his proposed bill is tyrannical and she doubts any constitutional

head of power validly supports any part of the bill. The impending election makes all of this moot. Senator Tronk tells you over afternoon tea, "You know, regardless of the election, I am determined to see this bill become law. I believe that many of the opposition MPs support me here and, depending on what you say, I can muster the support from all sides to have this bill passed by the Parliament when it resumes. That is why I need your advice - the security of our country is at stake. Also, the AttorneyGeneral hates me because I know her father is Welsh.". Senator Tronk seeks your advice on the constitutional validity of each element of the proposed Act before he introduces his bill into the Senate when the Parliament resumes after the election. When you return home from Canberra late on the Monday night, you learn from the TV news in the baggage claim that an early voting location in Melbourne was bombed, with many feared dead and many more wounded, and a terrorist group claiming responsibility. You also have a voicemail on your phone from Senator Tronk asking you to provide your advice as quickly as possible. EXAMINE ALL OF THE FACTS OF THE ABOVE AND PROVIDE YOUR OPINION ON THE CONSTITUTIONAL VALIDITY OF THE PROPOSED ACT.

PLEASE REMEMBER TO INCLUDE: ACCURATE WORD COUNT ACCURATE FOOTNOTES (FOOTNOTES ARE NOT TO BE DISCURSIVE) ACCURATE BIBLIOGRAPHY THE WORD LIMIT (EXCLUDING FOOTNOTES) IS 2500 WORDS. MARKS WILL BE DEDUCTED FOR ASSIGNMENTS THAT EXCEED THE WORD LIMIT AND WHICH FAIL TO COMPLY WITH (A)-(C).

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