LEGAL PRACTITIONERS ADMISSION BOARD MARCH 1996 AUSTRALIAN CONSTITUTIONAL LAW TIME: Three Hours. Candidates must attempt any FIVE questions. No question is compulsory. If a candidate answers more than the specified number of questions, only the first 5 questions attempted will be marked. All questions are of equal value. All questions may be answered in one examination booklet. Each page of each answer must be numbered with the appropriate question number. Candidates must indicate which questions they have answered on the cover of the first examination booklet. Candidates must write their answers clearly. Lack of legibility may lead to a delay in the candidate’s result being given. Permitted Material: No materials, other than those listed below, are permitted in the examination room. Australian Government Publishing Service copy of the Commonwealth of Australia Constitution Act 1900 (Imp), incorporating the Statute of Westminster 1931 (UK), the Statute of Westminster Adoption Act 1942 (Cth), and the Australia Act 1986 (Cth). A copy of the Law Extension Committee’s Constitutional Law case list is attached. Permitted materials may be underlined or highlighted but must not be otherwise marked or annotated in any way, nor may stickers or fliers be attached to the materials. As some instances of cheating and of bringing unauthorised material into the examination room have come to the attention of the Admission Board, candidates are warned that such conduct will result in instant expulsion from the examination and may result in exclusion from all further examinations. Question 1. Marketing Pty Ltd, incorporated in Queensland, grows vegetables. The property in the vegetables is transferred to its parent company, Holding Pty Ltd. Each company’s books shows no consideration for the transfer. The directors of the two companies are the same. Holding Pty Ltd sells the vegetables at the State markets where purchasers from Queensland and other States buy. Marketing Pty Ltd agrees with Smith Bros. and Jones Bros. to limit production: each undertakes not to exceed a stipulated tonnage per annum. The sole purpose of Marketing Pty Ltd is to maintain good industrial relations by setting a productivity goal easily attained by its employees. Could the Trade Practices Act 1974 (Cth.) be extended to catch the agreement? Question 2. Australia and other countries negotiated a convention. The final document executed by the signatory States (including Australia), provided a comprehensive scheme. The parties undertook to ensure equal rights, such as the rights to life, liberty and freedom of association. Specific provision dealt with arbitrary arrest and detention and access to the courts to determine the lawfulness of a detention. Compliance with the covenants was to be secured through education and in the last resort the ordinary courts of the land. Federal Parliament recited the convention in the preamble to its Aboriginal Criminal Justice Act, 1996. This Act proceeded to bring within the control of the Commonwealth Government all police activity, the administration of criminal justice and imprisonment of Aboriginal people. In his second reading speech on the Bill the responsible Minister explained that the provisions were concerned with the total failure of various police forces to eliminate the arbitrary arrest, detention and imprisonment of Aboriginal people. The Minister referred to the numerous Royal Commissions which had reported on the unequal treatment of Aboriginal people in the areas of arrest, detention and imprisonment. Would the Commonwealth law, through s109, pre-empt the Crimes Act 1900 (NSW) in its application to Aboriginal people within NSW? (Quest ion 3 follows) Question 3. The Australian Government concerned at the extent of unemployment in the community introduces a Skilled Workforce Act. The object of the Act is to increase and improve the quality of the employment related skills of the Australian workforce and to this end to improve the quality of employment related training”. The statute then defines a minimum amount that each employer must expend per annum in the training of each employee and in the event of the employer failing to expend the prescribed minimum sum on training that amount becomes a debt due to the Commonwealth Government payable to the Commissioner of Taxation. A Skilled Workforce Fund is established under the Act and the money collected is paid into the Fund by the Commonwealth to be disbursed to defray expenses and to fund employment related training” programmes by the State Governments. A Skilled Workforce Fund Board is created under a separate statute the Skilled Workforce Board Act. The President of the Board is Chief Judge of the Federal Court of Australia and members of the Board are employer and employee representatives who are all appointed for a term of years. The Board is empowered to hear applications by State Governments for an allocation from the Fund to commence and conduct employment related training” schemes. Under the statute decisions of the Board are to be final and conclusive”. In its first year of operation the Board fails to make any allocation to the State of Tasmania which now wishes to challenge the validity of the Skilled Workforce Act and Skilled Workforce Board Act. Advise the State of Tasmania. Question 4. The NSW Government introduces a Workforce Participation Act which obliges every employer in NSW with more than 40 employees to conduct an election amongst its employees for the selection of employee representatives to sit on the employers Board of Management. Following a complaint to the NSW Anti-Discrimination Board which is given jurisdiction in this area under the Act the 80 employees of Sant Bros are each awarded damages of $500 for its failure to comply with the Workforce Participation Act. A federal award made under the Industrial Relations Act 1988 (Cth), which applies to Sant Bros workforce, provides that all employers with more than 20 employees must introduce multi-skilling” into the workforce by the rotation of jobs between workers and management wherever possible but the award does not specifically deal with multi- skilling by job rotation on an employers Board of Management. (Question 4 continues) (Question 4 continued) Must Sant Bros pay the damages of $500 to each of its employees? Would your answer be different if the Industrial Relations Act 1988 was amended, after the award of damages to the employees of Sant Bros, to provide any award having the force of law under this Act shall be deemed never to have been intended to exclude or limit the operation of a law of a State which is capable of operating concurrently with this Act”? Question 5. The former Australian Stevedoring Industry Authority cancelled the registration of a waterside worker. In the course of its proceedings, the Authority had to determine the meaning of the expression stevedoring operations” in the Stevedoring Industry Act (Cth.). This expression was defined in the Act to mean the loading and unloading of ships and related activities, in or incidental to overseas, inter-State of territorial trade. The Authority determined the meaning and the application of the expression in the instant case by recourse to the definition in the Act, general reasoning and case law on the Commonwealth’s trade and commerce power. The waterside worker, who contests the Authority’s interpretation of the expression stevedoring operations”, wishes to commence proceedings for a declaration in the High Court. Can the High Court validly exercise jurisdiction? Question 6. Ann, a juvenile, who resides in Western Australia, is charged with offences in respect of making false claims for a student living-away-from-home allowance under s 49 (1) (a) and (b) of the Student Assistance Act 1973 (Cth) and is brought before the Children’s Court of Western Australia, constituted by a magistrate. The Act invests, inter alia, a State Court, constituted by a magistrate, with federal jurisdiction in matters arising under the Act. The magistrate has regard to s 79 of the Judiciary Act 1903 (Cth), which permits the laws of the State to continue to bind the court except as otherwise provided by the Constitution or the laws of the Commonwealth”, and proposes to order that Anne be dealt with by a Children’s (Suspended Proceedings) Panel pursuant to Part V of the Child Welfare Act 1947 (WA). (Question 6 continues) (Question 6 continued) Part V of the Child Welfare Act requires a magistrate in a Children’s Court in Western Australia, when dealing with certain first offenders, to direct that a child be dealt with by a Children’s (Suspended Proceedings) Panel created under the Act. Members of the Panel are mainly officers of the Western Australia Department of Community Services, police officers or retired police officers. It is not likely that any member of the Panel would be legally qualified. The purposes of the panel is to divert certain juvenile offenders from being dealt with by the ordinary criminal justice system. Anne and her parents do not wish to be dealt with by the Children’s (Suspended Proceedings) Panel and they seek your advice as to whether it is possible to obtain prohibition in the High Court to prevent the magistrate making an order that Anne be dealt with by a Panel. Question 7. The NSW crayfish industry is in decline due to excessive fishing and decline in the quality of crayfish offered for sale. To promote and improve the industry the NSW government establishes the Crayfish Marketing Board to regulate the trade in crayfish in NSW. The Board introduces a range of measures which include, a minimum size below which a crayfish may not be sold in NSW; a daily quota on all crayfish vendors; a time limit between catch and sale. X, a Tasmanian Crayfish farmer, has for many years sold large quantities of crayfish in NSW but these measures are forcing it out of the NSW market. The Tasmanian crayfish are a unique colour. They are also predominantly smaller in size than NSW crayfish making it difficult to comply with the NSW size requirements. In addition X has to air freight the crayfish to NSW in order on comply with the time limit between catch and sale imposed by the Board and the cost of air freight makes it uneconomical for X to continue selling in NSW. X seeks your advice. (Question 8 follows) Question 8. In an effort to raise funds to reduce pollution caused by the disposal of cans and other packaging materials, the New South Wales Government proposes to introduce a new levy. The levy would be imposed on the manufacture of cans, containers and other packaging material and its amount would vary according to the degree each type of container contributes to the pollution problem, the length of time each takes to disintegrate, the recycling capacity of each, and other similar factors. The levy would probably be passed on to the domestic consumer in the form of higher retail prices for canned, and other packaged products but the proposed law would not require it. Money raised by the levy wold be paid into a special fund for the purpose of providing additional recycling centres which would channel packaging materials back into the packaging industry. Is the New South Wales Government’s proposed scheme a valid method of raising revenue? (Disregard any impact the proposed scheme may have on inter-state trade.) - End of paper -