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LAWS2202/6202 COMMONWEALTH CONSTITUTIONAL LAW Semester 2, 2021 Problem Questions

Problem Question 1 The Commonwealth government is concerned about the quality of care provided by health professionals to patients. In particular, there have been recent concerns expressed by patients that the buildings occupied by health professionals are in disrepair and pose a significant risk to the safety of patients. The Commonwealth also seeks to boost the Australian health supplies industry by forcing health care providers to use products manufactured in Australia. The Commonwealth Parliament enacts the Better Health (Quality Providers) Act 2021 (Cth) (the ‘Better Health Act’). The Act contains the following provisions: 1. Health services in Australia must only be provided by trading corporations formed under the Corporations Act 2001 (Cth). 2. Health corporations can only employ health practitioners who have qualifications recognised by the Commonwealth Department of Health. 3. (i) Owners of buildings occupied by health corporations, and (ii) owners of buildings immediately adjacent to those occupied by health corporations, must maintain those buildings to prescribed standards. 4. Suppliers of goods or services to health corporations must (i) be headquartered in an Australian capital city, and (ii) stock no less that 50% Australian manufactured goods. 5.

For the purposes of this Act: a ‘trading corporation’ has the same meaning as a ‘trading corporation’ under s 51(xx) of the Constitution. b ‘health corporation’ means a trading corporation under s 51(xx) of the Constitution that offers health services to the public.

The Act provides a $20,000 fine for each breach of ss 1, 2 and 3. ‘Health First Pty Ltd’ is an Australian subsidiary of the American company Big Pharma Inc, which manufactures most of its products in India and Bangladesh. Health First Pty Ltd has decided to cut labour costs by employing Indian and Sri Lankan trained doctors and nurses from the Philippines, who work in Australia on short-term visas. Focusing on s 51(xx) of the Constitution, answer both (a) and (b): Question 1: Advise Health First Pty Ltd on the legal risks to its business model which arise under the Better Health Act. Question 2: Mony Poly owns the building from which Health First operates and the adjacent buildings. The buildings do not meet the standards prescribed under s 3 of the Better Health Act. Advise Mony as to whether, and to what extent, she is liable under s 3. 1

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Problem Question 2 The uranium mine at Bixby Downs in South Australia is bought by Yellow Cake Pty Ltd, an Australian subsidiary of the European company Fission Recherche Internationale (FRI). FRI is a nuclear weapons manufacturer. It is owned by a consortium of European governments and tests its weapons on Bikini Atoll in the Pacific. Yellow Cake provides uranium to FRI, its parent company. The mine is adjacent to Aboriginal sacred sites, and Yellow Cake’s mining operations will have a deleterious impact on those sites. Australia’s Pacific neighbours are outraged that Australia permits the mining of uranium and they cut off diplomatic ties in protest. In response, Australia enters into a treaty with New Zealand (the ‘AusNZ Treaty’) the operative text of which reads: 1.

The Parties acknowledge the desirability of living in a nuclear-free world;

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The Parties will take all reasonable measures to prevent the development of nuclear weapons.

The Commonwealth Parliament enacts the Uranium Mining (Prohibition) Act 2021 (Cth). The long title reads: ‘An Act to give effect to the AusNZ Treaty and for other matters’. A copy of the text of the AusNZ Treaty is set out in the Schedule to the Act. The key provisions of the Act are ss 9 and 10. Section 9 of the Act prohibits mining at any mine the subject of a declaration by the Minister under s 10. Section 10 provides that a declaration may be issued by the Minister in relation to a mine: (a) that mines uranium; (b) that mines uranium for nuclear weapons; or (c) that mines uranium for supply to a foreign government or a body controlled by a foreign government. (d) that impacts Aboriginal sacred sites. The Minister declares the Bixby Downs mine under paras (a), (b), (c) and (d) of s 10. Question 1: Advise Yellow Cake whether the declaration by the Minister will prevent it from mining at Bixby Downs. Question 2: Does it matter that Yellow Cake holds a mining licence under South Australian legislation? That legislation authorises the holder of a mining licence to engage in all mining activities at the relevant mine.

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Problem Question 3 The Commonwealth Department of Innovation, Industry and Science wishes to invest in Australian businesses in the early stages of developing innovative technology: the “Incubators Project”. It presents a business case to the Department of Finance, which agrees to secure funding for the Incubators Project at the next federal budget. The Appropriation Act (No 1) 2021 (Cth) appropriates $4 million to the Department of Innovation to be spent on “boosting Australia’s technological productivity by encouraging incubators of new technology”. After viewing media coverage of the federal budget (focusing on the Incubators Project), the Prime Minister and Cabinet consider that the Incubators Project is a major optical asset in the lead-up to the next election. The Minister for Innovation is pressured to draft a Bill which approves the Incubators Project, but also lets the Commonwealth claw-back the subsidy. The High-Tech Pathways Act 2021 (Cth) is enacted: Section 1 Innovation Incubation Where the Minister is satisfied that a proposed technology project is sufficiently innovative, she may make a payment to the enterprise promoting the project (Incubator Subsidy). Section 2 Incorporated Incubator Subsidy If the enterprise to be funded under s 1 is incorporated, the amount of the Incubator Subsidy shall not exceed $150,000. Section 3 Unincorporated Incubator Subsidy If the enterprise to be funded under s 1 is not incorporated, the amount of the Incubator Subsidy shall not exceed $75,000. Section 4 Investment Any enterprise which receives an Incubator Subsidy must invest 30% of its (or any successor enterprise’s) annual earnings before interest, tax, depreciation and amortization in Data 61 for each of the 10 financial years after receiving funding. Data61 is a CSIRO owned and operated tech-research company. Due to a lack of interest in the scheme, the Department decides to give any recipient of an Incubator Subsidy an additional $200,000 payable on flights to participate at Commonwealth government marketing booths at international tech events. Eventually, KangaBloc Pty Ltd and TechMate (run by 2 ANU software engineering students) are each granted Incubator Subsidies to the statutory maxima and the additional $200,000. BitBros Pty Ltd (a company wholly owned by the New Zealand government) wishes to prevent KangaBloc and TechMate from attending Super Bot 2019 (a technology conference in the USA). 4

Question: Advise BitBros whether any constitutional law arguments might support its objectives.

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Problem Question 4 The Western Australian government, as part of a suite of measures to address the COVID-19 pandemic, introduces the Keeping Us Healthy Act 2021 (WA) (WA Act) which includes the following: 1. All employees of accommodation providers, and all paying occupants staying for more than 2 days, must have a COVID-19 test at least once every two weeks. It is an offence for an employee or occupant to refuse to be tested, to not report the results of the test to the accommodation provider, or to not comply with prescribed isolation procedures if the results of the test is positive. 2. If an employee or occupant of a place of accommodation provider tests positive in COVID-19 test and informs the accommodation provider, the accommodation provider must comply with prescribed isolation procedures. It is an offence for the accommodation provider to fail to comply with those procedures. 3. All Western Australian government and employees must have a COVID-19 test once every two weeks. It is a breach of their conditions of employment, potentially leading to dismissal, for a government employee to refuse to be tested, to not report the results of the test to the relevant statutory officer, or to not comply with prescribed isolation procedures. 4. All members of the Western Australian parliament, or members or senators of the Commonwealth Parliament resident in Western Australia, must have a COVID-19 test once every two weeks. The results of any test will be reported to the Western Australian Parliament and made public on the Parliament’s website. The WA legislation includes a provision that it binds the Crown in right of the Commonwealth, States and Territories. Question 1: The Commonwealth operates an immigration detention facility in Perth which meets the definition of an accommodation provider for the purposes of the WA Act. Does the Commonwealth have to comply with prescribed isolation procedures under 2, which can include having to vacate the premises until any source of contamination can be addressed? Question 2: Christiana, a Commonwealth Cabinet Minister and a member of the Commonwealth House of Representatives for the district of Pearce in Western Australia, regularly has to stay in temporary accommodation as she travels around the State. Does the Intergovernmental immunities doctrine mean Jill doesn’t have to be tested or publicly release the results of the test? The Commonwealth government, concerned that the prohibitions are overly restrictive and burdening the economy, rushes through legislation of its own. The Getting Back to Normal Act 2021 (Cth) (Cth Act) includes:

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1. Despite any State or Territory laws, no person shall be subject to any penalty, liability or adverse treatment, including dismissal from employment, for refusing to have a COVID-19 test other than as provided by Commonwealth legislation. Question 3: Robert is the head of a Western Australian government department. Assuming the Cth Act comes within a head of legislative power under s 51 of the Constitution, does Robert have to comply with the requirement in s.3 of the WA Act to have a COVID-19 test every two weeks? Would it make a difference if the WA government responded by having temperature checks at the entrance of all WA government buildings?

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Problem Question 5 Queensland has a large sugar production industry which is divided between companies which farm sugar-cane and companies which refine the sugar-cane into products for the wholesale market. Farmers of sugar-cane sell their product to refinement companies which process it for human consumption. The Queensland sugar refinement industry has 85% of the Australian market-share in the production of wholesale consumer sugar-based products. The Northern Territory and Western Australia have resolved to heavily invest in their domestic sugar-cane farming industries. Westralian and Territorian sugar-cane farmers each receive $1million/annum subsidies from their governments. In both the Northern Territory and Western Australia, 100% of sugar-cane grown is exported for refinement. Queensland is concerned about the impact of imported sugar-cane on its domestic sugar production industry. It enacts the Sugar Industry and Public Health Act 2021 (Qld): Section 1 Establishment of Sugar Commissioner The Sugar Commissioner (“Commissioner”) is hereby established as a corporation sole with the function of supervising the safety of the sugar production industry in Queensland. Section 2 Sanitation standards The Commissioner may declare that any raw sugar-cane products cannot be sold in Queensland if the Commissioner is satisfied that those products do not meet minimum sanitation standards. Section 3 Anti-dumping duty Any sugar-cane which is produced with the support of a grant from any government source is charged with 30% ad valorem duty. Acting under s 2, the Commissioner declares that sugar-cane products farmed in the Northern Territory cannot be sold because there is evidence that they are being watered using water which is recycled from storm water and sewerage. The farmers object that there is no evidence that the recycled water has any negative health impact on human consumers. The farmers have invited the Commissioner to review their own reports into the sanitation of their farms, but the Commissioner has declined the invitations. The Commonwealth is also concerned by the impact that the Northern Territory and Western Australia’s action may have on Queensland sugar-cane farmers and enacts the Agricultural Subsidies Act 2021 (Cth):

Section 1 Additional corporations tax Any corporation engaged in the production of sugar-cane which receives a direct or indirect pecuniary benefit from a government body is liable to pay a single annual charge of 150% of the total amount of the benefit.

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Sweet Tooth Pty Ltd owns companies which farm sugar cane in both the Northern Territory and Western Australia and is deeply concerned by the impact of the Queensland and Commonwealth legislation. Question: Advise Sweet Tooth Pty Ltd whether s 92 of the Constitution provides any basis for relief?

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Problem Question 6 The Commonwealth and all State governments enter into an agreement to provide relief from the housing crisis: the “Housing Strategy”. The strategy has a number of features, including to reduce the opportunities for negative gearing of Australian residential properties; and to put the control of residential property market in the hands of Australian tenants and owners. The flagship legislation is enacted by the Commonwealth: Residential Property Reform Act 2021 (Cth). Section 1. Leveraged lending A corporation may not lend money which will contribute to the purchase of a negatively geared residential property. Section 2. Collective solutions Tenants and owners of residential property may join unions to be known as “tenant” and “proprietor” unions, respectively. Section 3. Foreign investors Foreign nationals may not join tenant or proprietor unions or make donations to either type of union. Concerned about the impact that the reforms will have on the civility of public debate around housing policy, the emotional wellbeing of tenants, proprietors and foreign investors and public order, Victoria enacts the following legislation to support the Housing Strategy. Crimes (Harassment and Vilification) Amendment Act 2021 (Vic) 1. The Crimes Act 1958 (Vic) is amended by inserting the following provisions: Section 13A. Proprietor harassment No person shall harass, intimidate or annoy another person on the basis of the second person’s ownership of residential property. Section 13B. Tenant harassment No person shall harass, intimidate or annoy another person on the basis of the second person’s membership of a tenancy union. Section 13C. Foreign investor vilification No person shall vilify a foreign national for advocating for the repeal or amendment of a Commonwealth or State law relating to the regulation of the residential property market.

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Bubble Buster Pty Ltd is a property fund which is heavily invested in leveraged lending in Australia’s residential property market. Wentworth Maximilian is a US national who has extensive property holdings in Melbourne who is outraged by Australia’s hostility to foreign investment. He plans to attend meetings of tenancy unions to place considerable pressure on the members of those unions to lobby for the repeal of the Commonwealth legislation. He also plans to meet with the relevant federal Minister to advocate for the repeal of the Commonwealth provisions. Property Warriors are a community action group based in Melbourne advocating a radical take-over of over-valued residential property. Their members plan to picket Mr Maximilian’s Melbourne office and (if the opportunity presents itself) to burn an effigy of Maximilian. Question: Advise each of Bubble Buster Pty Ltd, Mr Maximilian and the members of Property Warriors on the validity of the Commonwealth and Victorian Acts.

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