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Session 1 - AUT 2019 - Law Main ExamSEAT NUMBER:STUDENT NUMBER:SURNAME: (FAMILY NAME) OTHER NAMES:This paper and all materials issued must be returned at the end of the examination. They are not to be removed from the exam centre.Examination Conditions:It is your responsibility to fill out and compl...

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Session 1 - AUT 2019 - Law Main Exam SEAT NUMBER: STUDENT NUMBER: SURNAME: (FAMILY NAME)

OTHER NAMES:

This paper and all materials issued must be returned at the end of the examination. They are not to be removed from the exam centre. Examination Conditions: It is your responsibility to fill out and complete your details in the space provided on all the examination material provided to you. Use the time before your examination to do so as you will not be allowed any extra time once the exam has ended. You are not permitted to have on your desk or on your person any unauthorised material. This includes but not limited to:  Mobile phones  Smart watches and bands  Electronic devices  Draft paper (unless provided)  Textbooks (unless specified)  Notes (unless specified)

70616_v6 Australian Constitutional Law Time Allowed: 120 minutes. Reading time: 10 minutes. Reading time is for reading only.

You are not permitted to write, calculate or mark your paper in any way during reading time. Open Book Programmable AND Non-programmable Calculators Permitted

You are not permitted to obtain assistance by improper means or ask for help from or give help to any other person. If you wish to leave and be re-admitted (including to use the toilet), you have to wait until 90 mins has elapsed.

Permitted materials for this exam:

If you wish to leave the exam room permanently, you have to wait until 60 mins has elapsed.

Any Notes Any Textbook Any annotated textbooks Any paper materials that are handwritten, photocopied or typed

You are not permitted to leave your seat (including to use the toilet) during the final 15 mins.

Materials provided for this exam: During the examination you must first seek permission (by raising your hand) from a supervisor before:  Leaving early  Using the toilet  Accessing your bag Misconduct action will be taken against you if you breach university rules.

2 x 20 Page Booklet Students please note: Students should attempt ALL parts of BOTH questions

Declaration: I declare that I have read the advice above on examination conduct and listened to the examination supervisor’s instructions for this exam. In addition, I am aware of the university’s rules regarding misconduct during examinations. I am not in possession of, nor do I have access to, any unauthorised material during this examination. I agree to be bound by the university’s rules, codes of conduct, Do not open your exam paper until instructed. Page 1 of 10

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and other policies relating to examinations.

Signature:

Date:

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Rough work space Do not write your answers on this page.

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70616_v6 - Australian Constitutional Law – Session 1 - AUT 2019

Question One This question is made up of Part A (worth 10 marks) and Parts B and C (worth 5 marks each) and is worth a total of 20 marks You must answer ALL parts of this question. Incensed by the recent spate of protests by animal rights activists targeting abattoirs and farms in Victoria, NSW and Queensland, the Shooters, Fishers and Farmers party joins with the LNP Coalition government in NSW to fast track laws in NSW that institute “meat industry protection zones” around farms and abattoirs to protect those businesses. Shortly after its re-election in March, the NSW Parliament passes the Public Safety and Wellbeing in the Meat Industries Act 2019 (NSW). The following sections are extracted from the Act for the purposes of this question: Section 105B (1) “prohibited behaviour" means— (a) in relation to a worker accessing, attempting to access, or leaving i . a farm where animals are bred to be sold as meat; or i i .an abattoir where animals are slaughtered for sale as meat for human consumption besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding that worker by any means; or (b) subject to subsection (2), communicating by any means that is reasonably likely to cause distress or anxiety in relation to the use of animals as meat for human consumption, in a manner that is able to be seen or heard by a worker accessing, attempting to access, or leaving premises at which animals are bred to be sold as meat or an abattoir where animals are slaughtered for sale as meat for human consumption; or (c) interfering with or impeding a footpath, road or vehicle, without reasonable excuse, in relation to a farm where animals are bred to be sold as meat or an abattoir where animals are slaughtered for sale as meat for human consumption; or (d) intentionally recording by any means, without reasonable excuse, a worker accessing, attempting to access, or leaving a farm where animals are bred to be sold as meat or an abattoir where animals are slaughtered for sale as meat for human consumption, without that other person's consent. "meat industry protection zone" means an area within a radius of 150 metres from a farm where animals are bred to be sold as meat or an abattoir where animals are slaughtered for sale as meat for human consumption. "worker" includes a worker employed at a farm or a farm owner or their family or an employee or manager or owner of an abattoir; Section 105D A person must not engage in prohibited behaviour within a meat industry protection zone.

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Penalty: 120 penalty units or imprisonment for a term not exceeding 12 months.

PART A (worth ten marks) Joan is a protester who was parked in her car 50m from an abattoir in NSW that slaughters meat to be sold in NSW. She had been taking photos of what she believed was illegal and malicious cruelty to animals using a telephoto lens. After taking the photos, she was so upset she wanted to stop the illegal behaviour and so took out her megaphone and said “I have photos of what you are doing. You are in big trouble and you will pay.” She was immediately arrested under s105D of the Public Safety and Wellbeing in the Meat Industries Act 2019 (NSW). Joan argues that the laws breach the implied freedom of political communication in the Australian Constitution and further notes that the Commonwealth Criminal Code (Animal Protection) Amendment Act 2019 permits a person to be within 50 metres of an abattoir for the purpose of filming malicious cruelty to animals. She claims the Commonwealth law which makes it a criminal offence to fail to report, within one business day, malicious cruelty to animals after recording it conflicts with the State laws, rendering the State law invalid. The Commonwealth law states as follows: Section 383.5 of the Commonwealth Criminal Code (Animal Protection) Amendment Act 2019 states as follows: Failing to report malicious cruelty to animals after recording it (1) A person may a. film or photograph work being undertaken at an abattoir where, in the course of interstate trade and commerce, animals are slaughtered for meat for human consumption, for the purpose of ensuring that there is no malicious cruelty to animals, if: i. they keep a distance of at least 50m from the abattoir; and ii. they do not interfere with the work being undertaken at the abattoir. (2) A person commits an offence if: (a) the person makes a visual record of an activity engaged in, in Australia, by another person; and Example: A video recording, whether or not with sound, or a photograph. (b) the person makes the record because the person believes the activity to be malicious cruelty to animals; and (c) either or both of the following subparagraphs apply: (i) within one business day after the person makes the record, the activity is not reported to an authority of the Commonwealth, or of the State or Territory in which the activity occurred, with responsibility for enforcing laws relating to animal welfare; (ii) within 5 business days after the person makes the record, the record is not given to such an authority, (d) subsection (4) applies. Penalty: 30 penalty units.

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(2) For the purposes of paragraph (1)(b), it is immaterial whether the activity actually is malicious cruelty to animals. (3) A defendant bears an evidential burden in relation to the matter in paragraph (1)(c). Advise Joan what constitutional arguments she might make to strike down the NSW law and her arrests.

PART B (worth 5 marks) The Commonwealth Government is highly supportive of the NSW legislation and wants to assist with policing the meat industry protection zones. It rents premises near a NSW Abattoir from Mr Singleton where it stations a number of Federal police. Mr Singleton, as the owner of the property leased by the Federal Police, wishes to inspect the property. He has heard that the occupants have been drilling peep holes in the walls and have not cleaned the bathroom or fed the cat (a term of the lease) for weeks. He seeks orders from the NSW Residential Tenancies Tribunal requiring the Federal Police to allow him to enter the premises for the purpose of inspection and to allow him to have a key to the premises. The Federal Police refuse, maintaining that they are not bound by the NSW Residential Tenancies Act 1987 as, as a Commonwealth body, they are immune from state laws. Advise Mr Singleton of the likelihood of success if he appeals the case to the High Court.

PART C (worth 5 marks) Queensland is on the verge of an election and the current Government has pledged to introduce laws that make it illegal to make a financial donation to a political party if you are involved in commercial industries. This would include the meat industry which has just indicated it will donate a substantial sum to the Shooters, Fishers and Farmers party to campaign in the next election on a platform that Queensland needs a law like the NSW Public Safety and Wellbeing in the Meat Industries Act 2019 (NSW). The Commonwealth government is not happy and tries to cover the field by introducing an amendment to the Commonwealth Electoral Act which states: 302CA (1) Despite any State or Territory electoral law, a person or entity may: (a) give a gift to, or for the benefit of, a political entity, a political campaigner or a third party (a gift recipient); or (b) if the person or entity is a gift recipient--receive or retain a gift; or (c) on behalf of a gift recipient, receive or retain a gift; if: (d) this Division does not prohibit the giving, receiving or retaining of the gift; and (e) the gift, or part of the gift, is required to be, or may be, used for the purposes of incurring electoral expenditure, or creating or communicating electoral matter, in accordance with subsection (2).

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The Queensland government is enraged and views the provision as a direct interference with the governmental functioning of the State of Queensland. Advise the Queensland whether they can mount using the Melbourne Corporations principle that the Commonwealth law should be struck down? END OF QUESTION ONE GO TO QUESTION TWO ON THE NEXT PAGE YOU MUST ANSWER BOTH QUESTION 1 and 2

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Question Two This question is made up of Parts A and B (worth 7 marks each) and Part C (worth 6 marks) and is worth a total of 20 marks You must answer ALL parts of this question The Commonwealth government is increasingly concerned about threats made by religious extremists and believes that Australians needs to have a greater commitment to social and cultural tolerance to ensure the peace and prosperity of the nation. On 6 th of September 2018 the Commonwealth government passed the National Social and Cultural Tolerance Program Act 2018. The Minister for Defence speaking in favour of the law at a press conference said “We are facing a crisis of national identity and this law is needed to ensure that our citizens can live safely side by side and the nation is properly defended.” Australia has also recently signed and ratified the International Convention for Tolerance and Understanding of Social and Cultural Diversity 2017 (UN). The International Convention for Tolerance and Understanding of Social and Cultural Diversity states in Article 40: 1. States Parties recognize the right of every person to be treated in a manner consistent with the promotion of the person’s sense of dignity and worth. 2. State parties recognize that every person should show respect for the human rights and fundamental freedoms of others. 3. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that: (a) legislation is passed that protects individuals from discrimination on the grounds of social or cultural difference; (b) children are educated about the cultural and religious diversity of their populations past and present; and (b) they contribute financial support to institutions teaching primary age students, to educate them about the diverse religious and cultural backgrounds of their nations’ peoples including, but not limited to, understanding the diversity of geographical origins, first languages and cultural heritage and religious traditions. The Commonwealth National Social and Cultural Tolerance Program Act 2017 Act states: 1. This Act implements the International Convention for Tolerance and Understanding of Social and Cultural Diversity 2017 (UN) 2. There will be a National Social and Cultural Tolerance Day on the third Monday in March each year which will be celebrated as a public holiday. 3. An employer requiring an employee to work on National Social and Cultural Tolerance Day will be required to pay the worker double time and to ensure that all employees have attended a compulsory seminar on social and cultural tolerance, available for purchase from the National Social and Cultural Tolerance Commission set up under subsection 4 below. 4. A National Social and Cultural Tolerance Commission (NSCTC) is established by this section and: Page 8 of 10

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a. Shall consist of four members to be appointed by the Minister for Defence including a judge of the Federal Court of Australia, a national security advisor, a religious adviser and a popular Australian. b. Will undertake the following specific activities: i. develop a comprehensive advertising campaign encouraging social and cultural tolerance; ii. develop kits and seminars to teach people how to be tolerant of diverse social groups and cultures in Australia and sell them to the public at cost; iii. offer workshops, camps and other programs for a reasonable fee to assist Australians overcome their intolerance for social and cultural differences; and iv. develop a code of conduct for social and cultural tolerance. 5. Compliance with the Code of Conduct developed by the NSCTC will be mandatory for Australian sporting organisations listed in Appendix A. 6. In order to undertake its obligations under subsection 4(b)(i) the NSCTC may a. with the permission of the owner erect a billboard on an owner’s land to carry messages promoting social and cultural tolerance. Such billboard will remain the property of the NSCTC and the NSCTC will have a right of access to that billboard for the purposes of repair and maintenance. No compensation will be payable to private property owners for use of their land for this purpose. b. Where an owner of land refuses to allow the NSCTC permission to erect a billboard on that land the Commonwealth may compulsorily acquire that land at a price to be determined by the Minister for Health but such compensation shall not exceed 50% of the current market value of the land and shall be considered just terms. 7. Any person or organisation in breach of section 3 or 5 commits an indictable offence and is subject to a fine of up to $50000 and six months imprisonment. 8. The NSCTC will hear and determine any matter involving a breach of this Act. The National Employers Association says an extra public holiday will impact on productivity and cost companies an extra 3.2 million a year. Those companies that close for the day will lose significant revenue and those that stay open will face higher salary costs due to the holiday as well as the cost of providing the seminar. They are recommending that employers refuse to comply with the legislation as they believe it is unconstitutional. PART A (7 marks) Sami is the owner of a small company and is running behind schedule in filling customer orders and cannot afford to close for the holiday. Advise Sami whether the Act can be characterised as falling within a Commonwealth head of legislative power. (You should only consider the characterisation issue for this part of the question) PART B (7 marks) Whatever your answer to Part A, for the purposes of Part B assume the Act has been held to be validly characterised under a relevant head of legislative power. The NSCTC develops a Code of Conduct which specifies in section 3 as follows:

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any individual who receives remuneration for engaging in a sport listed in Appendix A of the Commonwealth National Social and Cultural Tolerance Program Act 2017 shall not use any form of social media to promote social or cultural intolerance even where their expressed viewpoint is based on deeply held religious conviction. Social and cultural intolerance is defined in section 4 as “diminishing another person’s sense of dignity and worth, and failing to have respect for the human rights and fundamental freedoms of others.” Kristin Sanders has recently been sacked from his team by Rugby Australia (a sporting organisation listed in Appendix A of the Commonwealth Act) for posting anti-homosexual remarks on social media in breach of section 3 and 4 the NSCTC Code of Conduct. Kristin argues that he was expressing his fundamental Christian beliefs and that he has a right to freedom of religion under the Australian Constitution’s s116. Both Sanders and Rugby Australia are charged and brought before the NSCTC to have their matter heard. Rugby Australia is fined $5000 and Sanders is given a gaol sentence of three months. What arguments might Sanders and Rugby Australia make to strike down the NSCTC’s orders? Part C (6 marks) Critics describe section 6 of the Commonwealth Act as an environmental nightmare promising a proliferation of ugly billboards in everyone’s backyard. (A) With Michael’s permission the NSCTC has erected a Billboard to display advertisements on his land. However, the process has required almost daily intrusion on Michael’s land and he has been unable to use that part of his property for the last six months. He argues that the NSCTC has effectively acquired his property over this period and therefore he is entitled to compensation under the Constitution. Advise Michael of his chances of success in a compensation claim. (B) Angela has had her land compulsorily acquired under the 2018 Commonwealth Act after refusing the NSCTC permission to place a Billboard in her back garden. She has been paid 50% of the market value of the land and cannot buy anything equivalent with the money. Homeless, she has set up a tent in front of Parliament House where she now lives. Advise Angela as to the validity of the acquisition of her property.

This is the end of the exam

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