Exam 2019, questions and answers PDF

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Constitution Law Take Home Exam Word Count: 3,090 Part A: Advise Roger. In your answer, you do not need to address any administrative law aspects of the scenario or issues relating to judicial power, rights and freedoms. I Introduction: In providing advice to Roger this paper aims to examine the Constitutional related issues in his circumstances. The advice will consider the validity of the Foreign Qualifications Recognition Act 2019 (Cth) under the external affairs power, potential inconsistency between the Foreign Qualifications Recognition Act 2019 (Cth) and the Trades and Small Business Act 1982 (Vic) and the validity of a job application. To conclude, this paper will apply the outcomes of the Constitutional issues to Roger’s circumstance and provide advice. II Validity of the Foreign Qualifications Recognition Act 2019 (Cth): Whether Roger’s foreign qualifications that have been vetoed by the Commonwealth Minister for Education and Training is valid depends on whether section 8 of the Foreign Qualifications Recognition Act 2019 (Cth) is valid under at least one constitutional head of power. Section 8 of the Foreign Qualifications Recognition Act 2019 (Cth) grants the Commonwealth Minister for Education and Training a veto power over recognition of a foreign training provider. It must be established that the section is valid and supported by section 51 of the Constitution.1 Given that Australia has ratified the Pacific Rim Convention on the Recognition of Training Qualifications, the external affairs power needs to be analysed.2 The external affairs power allows the Commonwealth to enact legislation to implement international conventions.3 In order for the legislation to be enacted it must first be established that the external affairs power is a bona fide treaty. 4 There is nothing in the Pacific Rim convention that suggests that the convention was not made in good faith and it also appears that the agreements made are binding. However, there may be some debate about the specificity of the convention. In the Industrial Relations Act Case it was held that the law cannot support a convention expressed in terms of aspiration and a convention cannot support law of possible contradictory ways.5 There is no evidence to suggest that the Minster’s veto power is the most efficient way to recognise foreign training qualifications and therefore they may be contradictory ways to implement the aims of the convention. Furthermore, the words used in the convention’s preamble such as “promotion of peace” is an example of aspirational words given in the Industrial Relations Act Case.6 It is evident that the convention reflects the decision held in Industrial Relations Act Case. This then raises the question of whether or not the enteral affairs power made is due to a lack of specificity.

1 Australian Constitution s 51. 2 Ibid s 51 (xxiix). 3 Commonwealth v Tasmania (1983) 158 CLR 1 (‘Tasmanian Dams Case’). 4 Victoria v Commonwealth (1996) 187 CLR 416 (‘Industrial Relations Act Case’). 5 Ibid. 6 Ibid.

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Constitution Law Take Home Exam Word Count: 3,090 A test of reasonable proportionality is needed to be applied in order to consider whether the Commonwealth Parliament has gone too far in terms of the Act they have enacted. According to Justice Deane in the Tasmanian Dams Case, if a Act implements a treaty there needs to be a reasonable proportionality between the purpose of the Act and the means of law for achieving the purpose.7 The Commonwealth Parliament8 has the power to enact an Act if it the Act is considered to be ‘appropriate and adapted to implementing the treaty’. 9 As such, is section 8 of the Foreign Qualifications Recognition Act ‘appropriate’ and ‘adapted’ to implement the treaty? Section 2 (iv) of the convention specifies that each Party shall “recognise the qualifications in trade conferred in another Party”. It is unclear how section 8 of the Act relates to the convention, if foreign qualifications are chosen by the Minster based on the reason that graduates are lacking an individual aspect rather than the Minster recongising trade qualifications. Furthermore, section 2 (v) of the convention states that the procedures and criteria used to assess qualifications are “transparent, coherent, reliable, fair and non-discriminatory”. The fact that Roger’s assessment of his qualifications was based on the reason that Australian buildings being more modem than buildings in Roger’s home country may suggest that section 8 of the Act is unreasonable. In R v Burgess where the High Court held that regulations were invalid since they did not comply or relate to the treaty. 10 On this basis it can be argued that section 8 does not reflect the reasonable requirement of section 2 (v) of the convention and that the Minster’s assessment of qualifications does not achieve the aims of the convention. It would appear that section 8 which implements inconsistent measures to achieve the convention aims, would be held to be invalid on the grounds that it does not enliven the external affairs power and/or the section is not appropriately adapted to achieving of fair, transparent, coherent, reliable and non-discriminatory recognition of qualifications. If the Commonwealth can find another head of power to support section 8 then the section will be valid. However, this seems unlikely. The legislation is also unlikely to satisfy the other requirements of the external affairs power in relation to matters external to Australia 11 or matters in relation to other countries. 12 If it is established that section 8 of the Act is invalid then Roger’s foreign qualifications is also invalid. III Inconsistency between the Commonwealth and State Act: Roger may be able to challenge the order to cease work issued by the Victorian Civil and Administrative Tribunal if it is proven that the Trades and Small Business Act 1982 (Vic) under s 109 of the Constitution 13 is inoperative to the extent of the inconsistent with Foreign Qualifications Recognition Act 2019 (Cth).14 7 Tasmanian Dams Case, 812-3 (Deane J.). 8 Australian Constitution, above n 2. 9 Victoria v Commonwealth (1996) 187 CLR 416 (‘Industrial Relations Act Case’). 10 R v Burgess (1936) 55 CLR 608 (‘Ex parte Henry’). 11 Polyukhovich v Commonwealth (1991) 172 CLR 502 (‘Wars Crimes Act Case’). 12 R v Sharkey (1949) 79 CLR 121 (‘Sharkey Case’). 13 Australian Constitution s 109. 14 Carter v Egg and Egg Pulp Marketing Board [1942] HCA 30 (‘Carter v Egg’).

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Constitution Law Take Home Exam Word Count: 3,090 Victoria as a State has plenary power to enact laws however; Commonwealth will be superior in any inconsistency. 15 As a result of inconsistency state law cannot apply. Inconsistency only arises when both Commonwealth and State law are valid. 16 Assuming that both laws are valid, then there is likely to be a direct or indirect inconsistency between the two Acts. 17 In this situation there is likely to be direct inconsistency which arises when it is impossible to obey both laws.18 The Commonwealth Act requires that the Commonwealth Minister for Education and Training have a veto power over recognition of a foreign training provider whilst the State Act grants the State Minister for Industry the ability to issue a dispensation order. If section 8 of the Foreign Qualifications Recognition Act 2019 (Cth) is a valid Commonwealth law, it may be argued that section 19B (4) of the Trades and Small Business Act 1982 (Vic) is inoperative because it is inconsistent with the veto scheme established by the Commonwealth Act.19 Even if it was satisfied that an individual has the right to build under the Commonwealth or State Act, one of the Acts may only remain within the law by not exercising that right.20 Inconsistency will only arise if both laws claim to confer to an absolute right not a qualified right.21 It could be argued that once a Commonwealth veto is granted under section 8, it provides builders with a right to operate across Australia. If this is correct the requirement for a Victorian dispensation order in section 19(4) would ‘alter, impair or detract’ 22 from the Commonwealth Act. However, if the Commonwealth Act is interpreted as not providing an absolute right, then the State Act will be able to continue to operate. 23 In order to achieve this, an analysis is required into the purpose of the Commonwealth Act and whether the State Act operation undermines the purpose of the Commonwealth Act. 24 Here, the Commonwealth Act seems to be intended to ensure that the Commonwealth Minister have veto power over of a foreign training provider. It appears that if the State Act operates it would prevent the Commonwealth Act. Thus, resulting in direct inconsistency; State law detracts from the operation of the Commonwealth law and therefore state law would be inoperative. However if only section 5 of the Trades and Small Business Act 1982 (Vic) is inconsistent with section 8 of the Foreign Qualifications Recognition Act 2019 (Cth) then the Commonwealth law shall prevail only to the extent of the inconsistency. 25 Resulting in section 187 of the Trades and Small Business Act 1982 (Vic) being rendered valid. Therefore, Roger wouldn’t be able to challenge the order to cease work by the Victorian Civil and 15 Above n 13 s 107. 16 Carter, above n 14. 17 Above n 13 s 109. 18 See R v Licensing Court of Brisbane; Ex parte Daniell [1920] HCA 24 (‘Ex parte

Daniell’). 19 Carter, above n 14. 20 Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 (‘Clyde v Cowburn’). 21 Ibid. 22 Telstra v Worthing (1999) 197 CLR 61 (‘Worthing’). 23 Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 4 ('Fuller'). 24 Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 ('AMP v Goulden'). 25 Above n 13 s 109. 3

Constitution Law Take Home Exam Word Count: 3,090 Administrative Tribunal. If Roger wishes to work in Victoria as a builder, he is required to resit his building ethics exam in order to re-obtain a Victorian licence to practise as a builder. IV Job Application; Jobs for Diggers Act 2019: Whether Roger can apply for a job that the Ministry of Defence has matched him up with under section 5 of the Jobs for Diggers Act 2019 will be determined by his merit. Section 5 of the Act allows for the Minster of Defence to offer employment in the building industry to former employees of the defence if the applicant is ‘in all other respects of comparable merit to another applicant.’ Although Roger was formerly employed by the Australian Army as a cook it appears that his merit is not in comparable to another applicant. It was found that his foreign qualifications vetoed is invalid and also found that he will need to re sit building ethics exam to re-obtain his Victorian licence to practise as a builder. Therefore, he will not be able to apply for the job that he has been matched up with. V Advice to Roger: Given that section 8 of the Foreign Qualifications Recognition Act 2019 (Cth) is an invalid section and that section s 187 of the Trades and Small Business Act 1982 (Vic) isn’t inconsistent with the Commonwealth Act, it is likely that Roger will have to re-sit the building ethics exam. Also, it is unlikely that Roger would be able to apply for the job under the Jobs for Diggers Act 2019 (Cth) due to the fact that his merit isn’t comparable to another applicant.

Part B: Do you agree with Gummow J in Fardon v Attorney General (Qld) (2004) 223 CLR 575 that legislation considered in the case did not necessarily infringe the offender’s human rights?

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Constitution Law Take Home Exam Word Count: 3,090 Every person regardless of their race, colour, sex or other status has the right to live with equality, freedom and justice.26 Legislation27 that allows for the continued detention of an offender based on the assessment that they are an ‘unacceptable risk’ of committing a ‘serious sexual offence’ and may re-offend in the future, if released infringes the offender’s human rights and also raises concerns about judicial power. The Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) deprives individuals such as Fardon of a fundamental human right, the right to liberty. Also, the imprisonment of an individual based of something they might do doesn’t represent the traditional judicial functions. The Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) aims to provide continued detention to offenders who are or were in custody for a serious sexual offence in order to protect the community. 28 However, it is evident that the Act takes away one of the most fundamental human rights; the right to liberty. An individual has the right to their personal freedom, meaning an individual cannot be unreasonably detained. 29 Unreasonable detention raises the principle of separation of powers. Separation of powers is a principle used to protect human rights since it is a system that allows actions of the Executive and the Legislature to be challenged in the courts.30 Judges are viewed to defend human rights principles from attack by Parliaments and are sometimes the only option an individual may have when their human rights are ignored but however this was not the case in Fardon v Attorney General.31 Furthermore, the Act aims to allow continued detention of an offender based on the assessment that the offender is an ‘unacceptable risk’ of committing a ‘serious sexual offence’.32 However, according to Professor Kate Warner psychiatric and clinical predictions for continued detention aren’t always as accurate and have shown to only have a 30-50% success rate.33 She also states that how difficult it is to predict future behavior. This then raises the issue of whether removing an individual’s liberty on the basis of prediction which have been acknowledge to only have a 30-50% success rate is an infringement of the individual’s human rights. To deprive an individual of their right to liberty which the Act has done has created a situation where the standard of proof required to allow continued detention of an offender is less than the standard of proof required to commence the detention of an offender.34 Similar to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), in 1994 the New South Wales Government passed state legislation that allowed for the Supreme Court of New South Wales to make an application that allowed an offender to be detained in order to protect the community,35 this was known as the Community Protection Act 1994 (NSW).36 However this Act was confined to one offender only, Gregory Kable. Kable had allegedly made threats 26The Advocates for Human Rights, What are Human Rights? (Web Page) . 27 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (‘Dangerous Prisoners’). 28 Ibid, s 3. 29 Human Rights Act 2004 (ACT) s 18. 30 The Rule of Law Institute of Australia, Human Rights and the Rule of Law (Web Page) . 31Fardon v Attorney General (Qld) (2004) 223 CLR (‘Fardon’). 32 Dangerous Prisoners s 3. 33 Kate Warner, 'Sentencing Review 2002-2003' (2003) 27 Criminal Law Journal 325,338. 34 Anthony Gray, ‘Preventive Detention Laws’ (2005) 79 Australasian Legal Information Institute Journal 30. 5

Constitution Law Take Home Exam Word Count: 3,090 that he would harm his wife’s family upon release from prison of his offence.37 The Act allowed for the Supreme Court to detain Kable on the reasonable grounds that they were satisfied that Kable was more likely than not to commit a serious act of violence and that the detention is for the protection of community. 38 There appears to be a clear similarity between the New South Wales legislation and the Queensland legislation as they both infringe the offenders of their right to liberty. In Kable v Director of Public Prosecutions (NSW) it was found that the Community Protection Act 1994 (NSW) offended the principle of separation of powers because it asked a judicial body, the Supreme Court of New South Wales to exercise a non-judicial power. Gaudron J described the proceedings in the Act as ‘dressed up’ proceedings involving the judicial process which aims to make a mockery of the judicial process and weakens the public confidence in it.39 She also concluded that one of the central purposes of the judicial process is to protect individuals from arbitrary punishment and to ensure that individuals’ rights are not interfered with.40 The Kable case is now viewed as an important principle that protects individual’s liberty against unlawful deprivation.41Although the objectives of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) and the Community Protection Act 1994 (NSW) are different there are some key similarities between the two, being the principle of separation of powers and the right to liberty. In conclusion, it is evident that the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) aims to attack a fundamental human right principle; the right to liberty. The Act also aims to use the involvement of the judiciary to infringe the offender’s human rights. While no one approves of what actions offenders may have committed in the past, offenders like Fardon have served their full allotted term of imprisonment and should have an expectation of release back into society. Which side presents more convincing arguments in the Banerji Case: the AttorneyGeneral of the Commonwealth (intervening for the appellant) or the Respondent? Australian public servants do not have an unlimited right to participant in public and political debate.42 Australian public servants employees have particular responsibilities under the Public Service Act 1999 that limits their ability participate fully in public discussions, including debates on social media. 43 As a public servant employee it is expected by the Commonwealth that contractual obligations are obeyed. 44 Cases such as Banerji v Comcare 35 The Victorian Parliament also passed a similar law; the Community Protection Act 1990

(Vic). 36 Community Protection Act 1994 (NSW). 37 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR (‘Kable’). 38 Community Protection Act, above n 35. 39 Kable, 108. 40 Ibid. 41 The Rule of Law Institute of Australia, ‘Kable’ and the rule of law (Web Page, 12 September 2016) . 42 Australian Public Services Commission, Making public comment on social media: A guide for employees (Web Page) . 43 Ibid. 44 Kieran Pender, ‘Comcare v Banerji: Public Servants and Political Communication’ (2019) 41 Sydney Law Reviw 131. 6

Constitution Law Take Home Exam Word Count: 3,090 raises the question of to what extent is an employer able to police an employee’s actions outside of work. Banerji v Comcare examined the scope of the Public Service Act 1999 (Cth) in the context of determining whether the Commonwealth’s termination of a public servant’s employment in relation to her use of a social media platform was a reasonable administrative action done in a reasonable manner.45 The Administrative Appeals Tribunal of Australia found that termination of employment on a public servant who tweeted anonymously was ‘unacceptable trespass’ on the implied freedom of political communication and therefore was unlawful. It is evident that the decision made by the Tribunal does not make a clear enough distinction between the public and private lives of public servants and “freedom of speech” when it comes to social media. 46 The decision was appealed by on the basis that Banerji’s employment termination was reasonable administrative action.47 It was argued by Commonwealth that section 13(11) of the Public Service Act 1999 (Cth)48 were not appropriate and adapted to maintain an apolitical public service. The reasonably appropriate and adapted test is used to examine whether the law is compatible with Australia's system of representative and responsible government. In this case the Commonwealth argued that section 13 is wide enough to be applied to anonymous communication.49 The Commonwealth suggests that although section 13 applies to Banerji’s anonymous tweets it does not mean that Australian Public Services employees aren’t able to express their political opinions.50 However, the Commonwealth applies that section 13 is a set of obligations in which are bounded to the person within the APS all depending on the who, when and why the communication is made and the man...