Solved: 3016LAW (GC) – Constitutional Law

3016LAW (GC) – Constitutional Law, Trimester 3 (Gold Coast and online)
STUDENT ID:
END OF TRIMESTER TAKE-HOME EXAM

INSTRUCTIONS
Answer both questions which appear on the following 4 pages. Question 1 is on the next 2 pages, followed by Question 2 on the last 2 pages.
Both questions (Question 1 and Question 2) are worth 20 marks each. Pay attention also to the internal breakdown of marks in each question, and the Hint in Question 2.
The exam in total is worth 40% of your final mark

QUESTION 1 (20 MARKS)
Local Councils are State government bodies which are generally set up across the nation as corporations.
An increasing number of these local councils, particularly in Queensland and Victoria, do not recognise the date of 26 January as “Australia Day”. Instead, they have official “Invasion Day” events on 26 January as it represents the anniversary of British occupation of Aboriginal land. These events have largely been peaceful but violence erupted at some of these events in 2021, when participants were attacked by members of a violent group who call themselves “Australia Day Loud Boys”. The Australia Day Loud Boys have warned of their intention to continue attacks on future Invasion Day events, which they say offend them as “Australian patriots”. The Australia Day Loud Boys identify themselves with a distinctive orange kangaroo on their clothing.
The Commonwealth government argues that the stance of the Councils who observe Invasion Day is “divisive” and stokes racial tensions. It also argues that the stance is not representative of the majority of residents in the relevant council areas (according to published polls). It is also concerned to ensure that there is no repeat of the violence that broke out in 2021.
The Commonwealth Parliament passes the Australia Day Commemoration Act 2022 (Cth) (“the Act”). Its preamble states that the object of the Act is to ensure the “peaceful and harmonious celebration of Australia Day and to suppress racial antagonism amongst Australian people”.

It specifies the following:
Section 1: A “local council” is defined as a local government body in any State or Territory in Australia which is a trading or a financial corporation.
Section 4: Local councils must describe the date of 26 January (in any year) as “Australia Day” in any events they host or promote for that day. No other term may be used to describe that date.
Breaches of section 4 can attract fines of up to $50,000.
Section 18 bans participants from openly displaying certain words and symbols, deemed in the legislation as being “divisive”, at such events (ie events hosted by local councils (as defined in section 1) on 26 January), including:
(a) an orange kangaroo.
(b) the term “Invasion Day”
Breaches of section 18 can attract fines of up to $250.
Exam hypothetical continues over the page
1. The Upper Brisbane Local Council engages in various activities, including the provision of numerous services for a fee, such as dog registration, childcare and recycling services. You are asked to advise it on the constitutionality of Sections 4, and 18 (a) and (b) of the Act, and the applicability of the law to it. Advise the Upper Brisbane Local Council. (15 marks)
2. Separately, the Commonwealth government wants to increase its spending on “Australia Day” events by $70 million, celebrating what it calls Australia’s national day. It seeks your advice on the constitutional requirements for the facilitation of such spending. Advise the Commonwealth government. (5 marks)

QUESTION 2 FOLLOWS ON THE FOLLOWING PAGES
QUESTION 2 (20 MARKS)
Of all the Australian States and territories, Queensland’s economy has been harmed the most by the COVID-19 pandemic, due to its reliance on industries such as tourism, hospitality and higher education, which have been particularly vulnerable to disruption from the pandemic. Furthermore, Queensland’s population is older and more vulnerable to
severe disease and death from COVID-19, compared to other States and Territories.
Griffith Pharma, a pharmaceutical company in Queensland, creates a safe and effective COVID-19 vaccine which it calls Griffax. It is manufactured locally and cheaply, and protects against illness and transmission of COVID-19 disease.
On 1 July 2021, the Queensland government passes the Vaccine (Local Supply) Act 2021. The preamble to the statute explains that the law’s purpose is to improve the dire Queensland economy, and to keep Queenslanders healthy in light of their particular vulnerabilities.
Section 4 mandates that Queensland-based companies (such as Griffith Pharma) must not sell COVID-19 vaccines outside the State until all Queensland residents who wish to be vaccinated have been vaccinated.
Section 8 prescribes minimum qualifications for the practitioners who are authorised to administer vaccines: only registered doctors are permitted to do so.
Section 17 of the Queensland Act sets out a schedule of set prices for COVID-19 vaccines in Queensland On 15 July 2021, the Commonwealth government ratifies a multilateral treaty, the Vaccine Equity Treaty 2021, which has numerous States partie. Provisions of that treaty read as
follows:
Article 1: All States parties must take all appropriate measures to stop the spread of listed diseases throughout their territories, regions and the world.
Article 2: It is recommended that vaccines for listed diseases be made available nationally on an equitable basis at all times.
COVID-19 is one of the “listed diseases” specified in Article 6 of the treaty.
On 1 August, the Commonwealth Parliament passes the National Vaccine Strategy Act 2021(Cth). The Schedule to the Commonwealth Act specifies the same “listed diseases” as are in the treaty, including COVID-19.
Section 3 of the Commonwealth Act states: “All vaccines for listed diseases must be made available at all times throughout all States and territories in Australia”.
The rest of section 3 provides a detailed schedule for per capita distribution of relevant vaccines throughout all Australian states and territories. Basically, a vaccine manufacturer must always ensure against an uneven allocation of vaccines amongst the States and territories. These requirements are logistically onerous and time-consuming for manufacturers such as Griffith Pharma.
Section 5 specifies that registered doctors and nurses are authorised to administer the vaccine. The Commonwealth Act says nothing about the cost of vaccines.
Section 7 states: “No vaccines for listed diseases may be exported from Australia without the approval of the Vaccine Exports Board.”
The Vaccine Exports Board (VEB) is established under Part III of the Act. Its members serve four year terms and it is chaired by a Federal Court judge. It makes decisions to approve, or disapprove, section 7 exports “in consultation with the federal Minister for Foreign Affairs and the federal Minister for Trade.” It bases its decisions on a broad range of policy matters.
Its deliberations are secret, and it does not have to give reasons for its decisions. Its decisions create new rights to export, or new prohibitions on exports.
Griffith Pharma wishes to sell its vaccine to any Australian State, Territory or other country at the best prices, without seeking the approval of the Vaccine Exports Board. It also believes that restrictions on the people eligible to administer the vaccine are unwise, as it will slow the vaccine rollout. It therefore seeks to claim that both the Queensland and the
Commonwealth statutes are invalid.
Advise Griffith Pharma on:
– 1. The validity of the above-mentioned provisions of the Queensland Act (sections 4, 8, 17) (10 marks)
– 2. The validity of the above-mentioned provisions of the Commonwealth Act (sections 3, 5, 7), including Part III and the Vaccine Exports Board. (10 marks)
Hint: Do not discuss section 51(i) of the Constitution. Assume it does not exist as a head of power. Do not discuss s117 of the Constitution.
*END OF EXAM*