Assignment Task
It is November 2022. You are a constitutional lawyer in Sydney who often advises litigants seeking to challenge Commonwealth and State laws. You are enjoying the World Cup and looking forward to the approaching summer holidays.
The news at home, however, is bleak. The Australian parliament has been debating what to do regarding costs of living increases, energy security, poor government infrastructure, and the ongoing consequences of the Russian invasion of Ukraine. Many Australians are considering whether they can afford Christmas presents and/or a summer holiday. Electricity prices are soaring especially in Sydney and Melbourne. There are, also, pressing budgetary issues.
The Government needs to raise revenues and spend less in a time of great global turmoil. Yet at the same time, the Government has much to do that will be costly. Promises are made of rises in spending on infrastructure and security – and also of support to struggling households.
The current Government only governs with the assistance of cross-bench MPs, who, while they have assured the Government of their votes for supply and confidence, have otherwise often voted with the opposition and against the governing parties. The Parliament is, as one observer put it, “ a dog’s breakfast. ”
The previous Prime Minister signed the Treaty of Shangri-la ( Treaty ), with the signatories being Australia, Canada, Japan, Singapore, New Zealand, South Korea, the United Kingdom, and the United States. The Treaty allows for the free trade in goods and services and a free movement of citizens of these countries. It provides for citizens of these countries to enjoy in Treaty countries the same rights as local residents do. The Treaty also provides for closer defence and security ties among Treaty nations.
Australians meanwhile have concerns that foreign adversaries are plotting to do their country grave harm. Polls suggest that while the new government has some goodwill from voters, there is a general pessimism about the quality of the Australian parliament and misgivings about the direction of the country.
One of the major concerns that Australia has is with its relations with the Republic of Panemeria, which is a large island nation in north Asia. Panemeria receives frequent arms supplies from Russia, and bases Iranian troops there, and considers itself a friend of China.
Panemeria has also recently started to increase its ties with Australia. The former Prime Minister of Australia visited New Atlantis, the capital of Panemeria, at the end of 2021. During this visit, Australia and Panemeria made an agreement on scientific cooperation in Antarctica and on arrangements for expanding travel, airlines, and shipping links. The state-owned Panemerian national resources company, PanOil Inc, is exploring the Australian continental shelf in order to extract natural resources.
For some years, especially in 2022, many Panemerian students have come to Australia to study at Sydney University, especially its exceptional law school. That some Panemerian students are required by capacity constraints to, instead, study in Melbourne is a minor diplomatic irritant at this stage.
This past winter, the Panemeria national soccer team played the Socceroos in a pre-World Cup series, which ended in a series of nil-all draws, which the Socceroos hailed as a great success. Australia has agreed to play Panemeria every year for the PanOil Cup, with next year’s series to be played in New Atlantis.
At the same time, Australia has had ‘stumbles’ in its relations with Panemeria. There was reporting that Panemeria was behind the hacking of Australian medical information, which the Australian Government has refused to confirm or deny. Australian diplomats in New Atlantis have complained of being followed by Panemerian security personnel. There have also been complaints of Australia’s cyber security infrastructure being compromised by Panemerian hackers.
Parliament’s concerns that the Government has been lethargic in its response to various threats to Australia have manifested in legislation. In the Winter of 2022, some cross-bench Members of Parliament, operating from a mix of motives, introduced the bill that has become the Stronger Australia For Everyone Act 2022 (Cth) ( SAFE Act ). The SAFE Act passed last month and is due to commence on 26 January 2023. The SAFE Act has no overall stated intention but is designed to counter a series of threats that House members and Senators believe that Australia faces.
The SAFE Act includes these key features:
Part 1 – Confers power on the Prime Minister to:
declare a national emergency where circumstances dictate;
designate individual persons as threats to Australian prosperity and security;
where a national emergency has been declared per 1(a), the Prime Minister may order the detention of any person designated under 1(b) for a period of up to 3 years without trial; and
direct that media (of any kind) may not publish, broadcast, or otherwise communicate, any matter produced by or in support of persons designated under 1(b) above. Any contravention of 1(d) is a criminal offence.
Part 2 – Authorises the Minister for Home Affairs in respect of any person designated under (1)(b) above
If Australian citizen: compel them to be finger-printed and have a DNA sample taken; and
For non-citizens: compel them as in (i) above but also make orders for their immediate deportation from Australia or work on Part 3 projects.
Part 3 – confers power on the Minister for Home Affairs to acquire property in Norfolk Island and Lord Howe Island to build detention facilities for persons detained under 1(c) above and/or otherwise in federal custody.
Part 4 – provides that:
the Attorney-General may require the States and Territories to share all their records of citizens’ identities, finger-prints, and their DNA samples, such as those collected under part 2 above, with the Australian Federal Police; and
the Attorney-General may, at his or her discretion, share all DNA and identity materials with the law enforcement and security agencies of Treaty allies.
Part 5 – Provides for the citizens of Treaty allies to
vote in all Commonwealth and State elections;
live and work in Australia as directed by the Minister for Home Affairs;
pay an annual fee of $1000 to the Department of Home Affairs for their right to reside in Australia; and
be conscripted by the Commonwealth for defence and national security work, such as projects authorised by Part 3 above.
Part 6 – Confers a power on the Minister for Home Affairs to:
provide financial incentives to local businesses and government to rapidly build new ports and airfields in Port Hedland, Christmas Island, Cocos Island, Townsville, and Darwin, to facilitate Australia’s increased trade with Treaty allies and Panemeria; and
require workers conscripted by 5(d) to work on projects in part 3 and 6(a) above.
Part 7- is headed “ Energy Security ” and provides that:
each Australian resident must pay to the Consolidated Revenue Fund on or by July 1 each year an ‘ energy security levy ’, which amounts to 1% of their previous financial year’s taxable income;
the Treasurer is to pay financial support to energy customers in Sydney, Melbourne, and Canberra; and
the residents of the 4000 and 6000 postcodes do not have to pay the levy in 7(a) above until FY2030-2031.
You have recently been approached by the firebrand socialist Senator Gabriela “ Red Gaby ” O’Higgins for your legal advice on whether or not all that the Government and the Parliament have done is constitutional.
Senator Hughes campaigned against the bill for the SAFE Act, saying that the SAFE Act was tyrannical and that, in her view, it must be unconstitutional. Senator O’Higgins has sent you her annotated copy of the SAFE Act and a list of her concerns regarding the unconstitutional powers she thinks the law confers. Nonetheless, Senator O’Higgins seeks your informed opinion.
As you go to your local café for a refreshing beverage, you see on the television that there is much breaking news. In the Port of Darwin, a Panemerian flagged bulk carrier exploded this morning and is slowly burning at its anchorage, and risks sinking. In Canberra, two cars left overnight in the driveway of the Panemerian embassy in Canberra have exploded, killing many in the embassy and wounding others, including many passers-by. People are shocked that this could happen in Australia.
Only last week, in Melbourne, there were reports and YouTube footage of a group of protesting Panemerian law students, who had disrupted lectures, set a lecture theatre on fire, burned Australian constitutional law textbooks, and were even holding one law lecturer hostage, saying his lectures criticising the Engineers decision were both incomprehensible and, also, “ heresy. ” These alleged Panemerian law students escaped local police and their precise whereabouts have been unknown. Rumours abounded that some students had tried to escape Melbourne and go to Sydney to enrol in the superior law school there.
As you finish your beverage, an agitated Senator O’Higgins calls you – she tells you that there are rumours the Prime Minister and Home Affairs minister will be “… declaring and designating and detaining! I cannot believe this could happen in Australia – laws like the SAFE Act are why my parents fled General Pinochet! I have to go now as I am organising a candle light vigil at the Panemerian Embassy! ”
