Autumn 2022 Constitutional Law Exam (5)
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Jun 8, 2024
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FINAL EXAM – AUTUMN SESSION 2022
School of Law
EXAM INSTRUCTIONS
Read all the information below and follow any instructions carefully before proceeding.
Clearly indicate which question you are answering. SUBJECT NAME:
Constitutional Law
SUBJECT NUMBER:
LAWS4015
NUMBER OF QUESTIONS:
There are 3 questions in Part 1
There are 3 questions in Part 2
VALUE OF QUESTIONS:
Part 1 is worth a total of 28 marks: Part 1 (1) is worth 10 marks
Part 1 (2) is worth 10 marks
Part 1 (3) is worth 8 marks
Part 2 is worth 17 marks in total. Part 2 (1) is worth 3 marks
Part 2 (2) is worth 2 marks
Part 2 (3) is worth 12 marks
ANSWERING QUESTIONS:
You must answer all Parts and all questions in this examination.
LECTURER/SUBJECT COORDINATOR:
Dr Azadeh Dastyari TIME ALLOWED:
2 Hours
TOTAL PAGES:
5
RESOURCES ALLOWED
Only the resources listed below are allowed in this exam.
1
Any printed or digital material.
PART 1 (28 marks)
Climate change was a significant election issue in the 2022 federal election. One of the first pieces of legislation introduced by the new government, and duly passed by the new parliament, is the Climate Change Response Act. The Act is as follows:
Climate Change Response Act 2022
No. 24, 2022
[
Assented to 1 June 2022
]
The Parliament of Australia enacts:
Part 1—Preliminary
1 Commencement
This Act comes into force on 23 June 2022. 3 Definitions
In this Act ‘Coal related item’ means any product where coal is an essential ingredient in the production of the product. ‘Corporation’ means any incorporated entity. 4 Purpose
The purpose of this Act is to tackle climate change through a ban on the sale and use of coal.
5 Ban on the sale and use of coal in Australia
No corporation or natural person shall sell or use coal or coal related items in Australia. Penalty: Corporation – 300 Penalty Units
Natural Persons - 20 Penalty Units 2
6 Ban on the sale and use of coal outside of Australia
No corporation or natural persons shall sell or use coal or coal related items outside of Australia. Penalty: Corporation – 300 Penalty Units
Natural Persons - 20 Penalty Units Pure Water is a water filter company that uses activated carbon in its water filter products. It is an American company, incorporated in Delaware (a state of the United States). It sells its products in Australia and around the world. The Australian government takes steps to prosecute the company under the Climate Change Response Act
2022
for selling its products
in Australia because they have carbon as a primary ingredient. 1)
Pure Water believes that s 5 of the Climate Change Response Act
2022 cannot apply
to it because it is not an Australian company. Furthermore, Pure Water believes that banning the sale of all coal related products is not within the scope of the Commonwealth’s power because the purpose is environmental protection, an area over which the Commonwealth has no head of power under the Australian Constitution. Pure Water also believes that the Climate Change Response Act 2022
is not within the scope of the Commonwealth’s power because it goes too far and is too restrictive. The Australian government believes it has the power under the Australian Constitution to regulate the activities of Pure Water and that s 5 of Climate Change Response Act
2022 is supported by the corporations power. Is the Australian government right? Why or why not? (10 marks)
2)
Pure Water also believes that s 6 of the Climate Change Response Act
2022
is unconstitutional because the Commonwealth cannot legislate for matters outside of Australia. They argue that under the Australian Constitution, the Australian 3
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government has no power to stop a US company from trading in certain products outside of Australia because there is no connection to Australia. Is this correct? Why or why not? In your answer consider what head of power, other than the corporations power, the Commonwealth may rely on to legislate on matters/affairs which are physically external to Australia. Do you think the High Court would find s 6 of the Climate Change Response Act
2022 valid, despite the fact that there is no connection to Australia when a US company sells products outside of Australia? (10 marks)
3)
Samira is a small business owner who sells Pure Water products in her shop in Sydney. She is not an employee of ‘Pure Water’. Samira is highly sceptical about the human causes of climate change and refuses to stop selling Pure Water products banned under s 5 of the Climate Change Response Act 2022. She is fined 20 penalty units under the Act. Samira believes that s 5 of Climate Change Response Act 2022 cannot apply to her because she is not an incorporated entity, and is not even a direct employee of the company. She argues that the Australian government has no power over her. The Commonwealth believes that its power under s 51(xx) extends to Samira as a natural person. Is the Commonwealth correct
in its belief? Why or why not? (8 marks)
4
PART 2 (17 marks)
Samira believes that her refusal to stop selling Pure Water products is a political act and is protected by the implied freedom of political communication.
1)
Does the Australian Constitution confer a personal right of political communication on Samira? Why or why not? In your answer, explain the nature of the implied freedom of political communication. (3 marks) The freedom of political communication is not a personal or individual guarantee capable of conferring private rights. Therefore, the Australian Constitution does not give Samira a personal right of political communication. 2)
Samira believes that her refusal to stop selling Pure Water products is a political act and is protected by the implied freedom of political communication. Are the courts likely to view the act of selling Pure Water products because of one’s political conviction as political communication? (2 marks)
Yes, the courts will view the act of selling Pure water products due to the political conviction as political communication. 3)
Regardless of your answer above, assume that the courts view the act of selling ‘Pure Water’ products as ‘political communication’. Are the courts likely to find s 5
of the Climate Change Response Act 2022 invalid on the ground that it burdens the implied freedom of political communication? (12 marks)
5
The Australian Constitution, the parliament shall subject to the constitution have
power to make laws with respect to foreign Corporations, and trading or financial
Corporations formed within the limits of Commonwealth. The law mustn’t burden the freedom of political communications in its terms,
operation, or effect. It is necessary to identify to the purpose of the law and the mean
adopted in achieving its purpose to determine whether the law burdens the freedom. The implied freedom of political communication only protects ‘political speech. Political speech is any speech that affects people’s choice in federal elections or constitutional referenda. END OF EXAMINATION
6
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