Constitutional Law;

Constitutional Law;

1.    The Marriage Equality Bill 2013 has recently been introduced into the ACT LegislativeAssembly. This bill and similar bills to legalise same sex marriage are

likely to be challenged by the Commonwealth and possibly other persons or groups (who can establish standing to make such challenge). What are the key Constitutional

and legislative challenges facing marriage equality legislation in Australia at both the Federal level and State and Territory level? Is Federal legislation which

extends the definition of “marriage” under the Marriage Act 1962 (Cth) to all marriages between “two persons” more likely to withstand a legal challenge than State and

Territory legislation which follows the format of the ACT bill? You should consider applicable case law, particularly High Court decisions.

2.    “Interpretation of the Constitution is not simply a matter of reading the text and discerning its meaning. Rather, constitutional interpretation is

circumscribed by the social, cultural and discursive context of the High Court at the particular point in time a case is decided. The outcome of constitutional cases

is also very much dependent on the individual perspectives of the judges on the bench and in particular their idiosyncratic views on the role of the judge in law

making.”  Discuss with reference to two or more High Court decisions.

PART B ;(choose 1 question)

3.    Mining magnate Cleaver Palm, a vocal National Party supporter recently acquired a 15% shareholding in Austral Publications Ltd (APL). APL publishes a number of

newspapers including the Australian Times, a leading national newspaper. As a result, Cleaver has demanded that he be given a seat on the Board of APL. The Chairman of

the Board has refused to agree to Cleaver’s request unless Cleaver signs the APL “Charter of Independence” which has been signed by the other directors. The Charter of

Independence exists to protect the “editorial integrity” of the APL newspapers and in particular to prevent APL journalists being pressured to favour the political

views of APL’s directors and shareholders.

The Federal Minister of Communications is very concerned that Cleaver will use his influence to a change thecurrent pro-government stance of the Australian Times and

introduces the News Media (Self-Regulation) Bill 2013 into Federal parliament. The Billis duly passed and becomes law on 13 June 2013 (the Proclamation Date).

The News Media (Self-Regulation) Act 2013 (the Act) contains the following:

Section 1 Definitions

“news provider” means any corporation whose activities consist of, or include, news-related activities”

“news-related activities” means:
(a)  the collection; or
(b)  the preparation for dissemination; or
(c)  the dissemination;
of material concerning news or current affairs events for the purpose of making it available to be published in printed form.
“Charter of Independence” means a document that meets the requirements prescribed by the Regulations.

Regulation 10.03 requires that a Charter of Independence include a clause as follows:
“The editors must at all times ensure the news and current affairs of Australia are recorded without regard to the political interests of the shareholders or board

members. Board members may not publically criticise any editor’s decision to publish or refrain from publishing any materials as the editor thinks fit”.
Section 3 Charter of Independence:
(1)    Any news provider must oblige each of its directors to undertake in writing, to uphold a Charter of Independence within 14 days of the Annual General meeting.
(2)    Any shareholder acquiring 15% or more of the shareholding of a news provider must undertake in writing, to uphold a Charter or Independence within 14 days of

completion of such acquisition.
(3)    The constitution of anyNews Provider incorporated after the Proclamation Date must contain a provisions equivalent to section (1).
The Australian Alps ClubPty Ltd (AAC) was incorporated on June 18 2013. The AAC’s principal aim is to promote the sport of skiing in Australia. It runs national

competitions, sponsorsAustralian Olympic skiers and provides memberswith low cost accommodation at its ski lodge in the Mt Kosciusko National Park. The AACalso prints

and publishes the Skiers Journal.The club annual revenues are $ 20,000, derived from membership subscriptions and accommodation fees for the club ski lodge but the

club does not make a profit. All AAC revenue goes towards the administration costs, sponsorships and maintenance of the club lodge. The Journal is distributed to club

members free of charge but its costs are funded by advertisements.
The Skiers Journal is edited by Howie Mason, who is also a director of the AAC. Howie often publishes articles which criticise theDepartment of National Parks and

Wildlife for preventing the development of the AAC ski lodge on conservation grounds.
The Directors of the Club have written to the Federal Minister for Communications questioningif they are obliged to comply with Section 3of theAct.Meanwhile Cleaver

has publically denounced the legislation as un-constitutional.
The Federal Minister for Communications seeks your advice on:
(1)    The Constitutional validity of Section 3 and Regulation 10.03; and
(2)    Whether the AAC and its directors are bound by the Act?

Carson Blenkinsopp, a highly decorated junior officer, was charged by the Director of Military Prosecutions under the Defence Force Discipline Act 1982 (Cth) (the

DFDA) with committing an act of indecency without consent and assaulting a superior officer. He was convicted at his trial by jury of both charges by the Military

Court of Australia which was established in December 2013 under the Military Court of Australia Act 2013 (Cth).
The jurisdiction of the Military Court of Australiaincludes the power to hear and determine “service offences” as defined in the DFDA. The service offences of which

Carson was convicted are classified as indictable offenses under that Act.
The Military Court of Australiasits outside the military chain of command and comprises a Chief Justice and two other judges who are appointed for terms of fifteen

years.Specialist juries are required to determine indictable service offencesand comprise six jurors, hand-picked by the Military Court Registrar from current serving

members of the Australian Defence Forces. Neither the prosecution nor defence may challenge the Registrar’s selection of jurors.
In the final month of Carson’sten month sentence, a supervision order was made under the DFDA for “an indefinite term of supervision and control”upon his release. The

orders specifically state that Carson is confined to his barracks while not on duty and may not leave without written permission of his probation officer. He is also

not permitted to have any physical contact with any serving members of the Defence Forces except in the line of duty. The judge making the order gave the following

reasons (though none was determinative): refusal to participate in a rehabilitation program, refusal to answer questions during a test administered by a psychiatrist

and the resulting psychiatric report and failure to admit guilt or show remorse for the crimes. Carson has steadfastly refused to admit the crimes and claims his

conviction was a “set-up”.

Carson seeks your advice as to whether he has grounds to challenge his conviction and /or the supervision order.

Defence Force Discipline Act 1982 (cth)
5 The Attorney-General may apply for orders
(1) The Attorney-General may apply to the court for an order under Division 3 in relation to a prisoner.
(2) The application must—
(a) state the orders sought; and
(b) be accompanied by any affidavits to be relied on by the Attorney-General for the purpose of seeking an order or orders under division 3; and
(c) be made during the last 3 months of the prisoner’s period of imprisonment.
(3) On the filing of the application, the registrar must record a return date for the matter to come before the court for a hearing to decide whether the court is

satisfied that there are reasonable grounds for believing the prisoner will re-offend in the absence of a division 3 order.
(6) In this section ‘prisoner’ means a prisoner detained in custody who is serving a period of imprisonment for an indictable offense under this Act

8A State or Territory Attorney-General may produce report
(1) This section applies if a hearing date is set under section 5.
(2) A State or Territory Attorney-General may produce to the court a report about the prisoner that—
(a) proposes requirements under section 13 (5)(b)for any supervised release of the prisoner; and
(b) indicates the extent to which the proposed requirements under paragraph (a) can be reasonably and practicably managed by corrective services officers.
(3) The State or Territory Attorney-General must give a copy of the report to the prisoner one week before any hearing of an application for a division 3 order.

13 Division 3 orders
(1) This section applies if, on the hearing of an application for a division 3 order the court is satisfied there is an unacceptable risk that the prisoner will re-

offend in the absence of a division 3 order.
(3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied to a high degree of probability that

the evidence is of sufficient weight to justify the decision.
(4) In deciding whether a prisoner is a serious danger of re-offending as mentioned in subsection (1), the court must have regard to the following—
(a) any report produced under section 8A;
(b) the outcome of any psycho-diagnostic assessment of the prisoner and the extent to which the prisoner cooperated in the examinations by the psychiatrists;
(c) any other medical, psychological or other assessment relating to the prisoner;
(d) information indicating whether or not there is a propensity or risk on the part of the prisoner of re-offending  in the future;
(e) criminal history and whether there is any pattern of offending behaviour on the part of the prisoner ;
(f) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation

(g) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner; and
(h) any other relevant matter.

(5) If the court is satisfied as required under subsection (1), the court may order—
(a) that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or
(b) that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).


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