You are a Graduate Legal Officer employed in the Constitutional Policy Unit of the Australian Attorney-General's Department. Until this point, your supervisor, Rodger Dodger, has paid you little attention, and you have not yet been asked to prepare an advice. However, it is the day after 'National Party Day' and all other staff in the Unit have called in sick. The Attorney-General contacts your supervisor and requests urgent and immediate advice on proposed legislation. The email from the Attorney-General requesting advice is as follows:
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Sent: 1:50PM
To: Rodger Dodger
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G'day Rodger
Another big day in Federal Parliament, mate. The Federal Opposition has put forward the Stop the Boats Bill (2012). Given we've got a hung parliament; it's looking like the Stop the Boats Bill (2012) will get through the House of Representatives and the Senate. The Prime Minister wants to know if the legislation is constitutionally valid, or if there are grounds on which we might successfully challenge the constitutional validity of the legislation if it gets through. Specifically, Section 5 of the Bill provides:
(1) If any marine vessel with persons aboard who do not possess valid documentation for lawful entry into Australia, approaches Australian territorial waters with the intent to enter Australian territory, or enters Australian territory, that vessel shall be forcibly removed from Australian waters by Australian military vessels, or other military equipment which may be deemed necessary.
(2) Any person in Australiawho:
a) Comments publicly on an event occurring pursuant to subsection 1 commits an offence; or
b) Provides assistance to any person on board a vessel which would be subject to section 5(1) or 5(2) above, is liable to a maximum of 12 months imprisonment.
Please prepare a comprehensive legal opinion advising whether section 5 is supported by 51(xxix) of the Constitution of Australia, and/or whether there are any grounds for challenging the constitutional validity of this legislation, and if so, what the counter arguments might be, and what the Court would likely conclude. Please also advise if the situation would be different if the legislation were introduced by the State of Queensland.
Please have this advice to my office by COB today. And keep that unit of yours under control too. I heard they were rather rowdy at the National Party Day festivities!
Yours,
Robby McC
Please prepare a comprehensive legal opinion advising whether section 5 is supported by 51(xxix) of the Constitution of Australia, and/or whether there are any grounds for challenging the constitutional validity of this legislation, and if so, what the counter arguments might be, and what the Court would likely conclude. Please also advise if the situation would be different if the legislation were introduced by the State of Queensland. Please have this advice to my office by COB today. And keep that unit of yours under control too. I heard they were rather rowdy at the National Party Day festivities!
Your supervisor asks you to prepare the advice. You realize this is your big chance to impress your supervisor and show him your legal research and writing skills far exceed your ability to organise the branch morning tea every fortnight. On the basis of your excellent legal education at Bond University, you know a constitutional legal advice should be well structured, well researched, contain practical solutions and provide an executive summary at the beginning of the document.