Posted: January 10th, 2024

LAW EXTENSION COMMITTEE SUMMER 2023-2406 AUSTRALIAN CONSTITUTIONAL LAW ASSIGNMENT

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.

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 considerable 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 cappuccinos, 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 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 last 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 cash 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 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 air 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.

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;

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 involved in activities liable to diminish trust in any aspect of government.

(c) require commercial and digital media to promote messages and information that enhance 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;

(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 Fund 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) or, 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 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 this 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 Governor-General, His Excellency, Admiral Sir Horace Hercules Bracegirdle, RAN (Retired).

As you are a prominent constitutional lawyer, Sir Horace’s private secretary has approached you to 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.

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 Minister 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 perilous 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 issues 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”.

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 pass 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.

ADVISE THE GOVERNOR-GENERAL.

Note:
It’s evident that the legal and constitutional issues facing Australia are complex and multifaceted. As a prominent constitutional lawyer, your role in advising the Governor-General, Sir Horace, is of utmost importance. Given the widespread concerns about the proposed Act’s constitutional validity and the ongoing parliamentary impasse, it’s essential to approach this task with diligence and expertise.
In advising the Governor-General, it’s crucial to conduct a comprehensive analysis of the legal predicament confronting Sir Horace. This analysis should encompass a thorough examination of the proposed Act’s provisions, the constitutional concerns raised, and the potential implications for the rule of law and national confidence. Additionally, providing constitutionally valid solutions to the current constitutional issues facing Australia is paramount.
Furthermore, it’s important to address Sir Horace’s concerns about the potential challenges and litigation surrounding the proposed Act’s validity. Your advice should aim to chart a way forward to rebuild national confidence and address the serious financial issues facing Australia, particularly in light of the failure to pass appropriation bills for 2024.
Given the Governor-General’s expectation of error-free, proofed, and comprehensive advice, it’s imperative to ensure that the analysis and recommendations provided are meticulously researched, accurately presented, and free of typographical errors and irrelevant footnotes. This level of attention to detail and precision is essential in meeting the high standards expected in such a critical legal and constitutional matter.
In conclusion, advising the Governor-General on the legal and constitutional issues facing Australia requires a thorough understanding of constitutional law, legal precedent, and the current political and legal context. Your expertise and diligence in providing constitutionally sound solutions will be instrumental in addressing the challenges confronting Sir Horace and charting a way forward for the nation.

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