QUESTION 1 (15 MARKS) – SHORT ANSWER QUESTIONS
(a) Can the Commonwealth enact legislation to regulate the wages of persons who work for not-for-profit local government corporations whose primary functions are to maintain roads, register domestic animals and provide garbage disposal services to rate-payers? Why or why not? (5 marks)
(b) How does the High Court of Australia determine which aspects of a jury trial are guaranteed by section 80 of the Australian Constitution? (5 marks)
(c) Is it possible for the Commonwealth and Victoria to enact criminal laws dealing with the same (or substantially the same) conduct without inconsistency arising by virtue of section 109 of the Constitution? (5 marks)
QUESTION 2 (30 MARKS) – PROBLEM QUESTION
In the aftermath of serious breaches of hotel quarantine protocols in Melbourne, Prime Minister Morrison vows “to do whatever is necessary, politically and constitutionally, to fix the mess created by the Victorian Government’s disastrous policy response to the COVID-19 pandemic.” Of particular concern to the Commonwealth are reports that not all Victorians required to wear a face mask are doing so, and that hotel security is provided by private companies not trained government officials. The Commonwealth signals its intention to take control of those Melbourne hotels where the quarantine breaches have occurred and to impose a strict face mask policy throughout Victoria for anyone aged 10 years or above. Premier Andrews – the Victorian Premier – considers the Commonwealth intervention in Victoria to be a cheap political stunt. In particular, he queries the necessity and wisdom of the Commonwealth’s proposed face mask policy. Relevantly, in Victoria it is mandatory already for any person aged 16 years or above to wear a face mask in public; and the Premier presents evidence that the vast majority of COVID-19 infections have occurred in the adult population.
In any event, the Commonwealth Parliament promptly enacts the Pandemic (Victorian Response) Emergency Act 2020 (Cth). The key provisions of the Act are as follows:
Section 1: The purpose of this Act is to implement an urgent response to address the serious policy failures of the Victorian Government regarding the COVID-19 pandemic. This is necessary to protect the health and safety of all Australians which is threatened if the transmission of the virus is not contained within the State of Victoria.
Section 2:
- (a) Every person in Victoria aged 10 years or above must wear a face mask at all times when outdoors.
- (b) Upon request, the Commonwealth must provide a face mask to any person subject to this section.
Section 3:
In order to defray the costs of providing face masks to persons subject to section 2, every Victorian eligible to vote in the next federal election must pay to the Commonwealth the amount of $50.
Section 4:
With immediate effect and until the Commonwealth Minister for Health declares that the COVID-19 pandemic has concluded:
- (a) The records and staff of the Victorian Department of Health shall be transferred to the Commonwealth.
- (b) The Commonwealth shall take possession and control of those hotels designated by the Commonwealth Minister of Health to be COVID-19 hotspots.
Section 5: A judge of the Federal Court of Australia shall determine the amount to be paid to the owners of those hotels subject to section 4(b).
ANSWER THE FOLLOWING QUESTIONS
(a) Advise Premier Andrews as to the constitutional validity of the Pandemic (Victorian Response) Emergency Act 2020 (Cth) (25 marks)
(b) If a challenge to the constitutional validity of the Pandemic (Victorian Response) Emergency Act 2020 (Cth) is successful, Prime Minister Morrison seeks your advice as to whether the Commonwealth could legislate to offer Victoria a grant in the amount of $1 billion if they agree to all the measures contained in the invalid Act? (5 marks)
QUESTION 3 (15 MARKS) – PROBLEM QUESTION
The National Cabinet is comprised of the Prime Minister, State Premiers and the Chief Ministers of the Territories. It meets monthly to discuss issues of national significance and how best to address them in Australia’s federal system. On this month’s agenda is the problem of international actors (including foreign governments) using social media to influence public opinion in Australia by spreading false, inaccurate and misleading information about politicians and the policies of political parties. Of particular concern is that this co-ordinated policy of disinformation appears to be designed to increase the popularity of “New Truth”, a fringe far-right political party which plans to run candidates in forthcoming State and Territory elections. In the course of considering what kind of legislative action each level of government in the Australian federation might take, you are asked to advise on the following QUESTIONS:
(a) Prime Minister Morrison asks whether the Commonwealth has legislative power to impose trade sanctions on any foreign nation suspected of engaging in a co-ordinated policy of political disinformation in Australia through social media. (5 marks)
(b) Premier Andrews asks what constitutional issues (if any) might arise if the Victorian Parliament enacted legislation to permit the Attorney-General of Victoria to block any social media post which is made by, or expresses support for, a candidate or policy of the “New Truth” political party. (5 marks)
(c) Chief Minister Gunner asks what constitutional issues (if any) might arise if the Northern Territory Parliament enacted legislation to require the Chief Justice of the Northern Territory Supreme Court to issue a warrant for the arrest of any person (including citizens of a foreign nation) present in the Northern Territory when instructed to do so by the Attorney-General of the Northern Territory. Under the proposed legislation, in order to provide that instruction, the Attorney-General must have reasonable grounds for believing that the person is involved in a co-ordinated policy of political disinformation in Australia through social media but is not required to disclose the details of that involvement to the Court. (5 marks)
