AUSTRALIAN CONSTITUTIONAL LAW

You are a lawyer who is briefed to advise the Australian Government on constitutional law. It is December 2016 and you are lookin" rel="nofollow">ing forward to a long and relaxin" rel="nofollow">ing holiday. Late on a Friday afternoon, your telephone rin" rel="nofollow">ings and you are asked to meet with a new client, the newly appoin" rel="nofollow">inted Commonwealth Min" rel="nofollow">inister for National Security, Senator Halford Ironside of Tasmania. Senator Ironside is concerned that Australia is in" rel="nofollow">increasin" rel="nofollow">ingly vulnerable to cyber attack and that sensitive "dual use" in" rel="nofollow">information technology ("IT") has been sold by Australian IT busin" rel="nofollow">inesses to foreign governments and to terrorists. Senator Ironside is concerned that the busin" rel="nofollow">inesses sellin" rel="nofollow">ing this technology are often ethically dubious and will sell IT products to anyone. Senator Ironside says that to discharge his position, he "wants to get a hold of 'who is doin" rel="nofollow">ing what to who' in" rel="nofollow">in the Australian IT in" rel="nofollow">industry...the crooked trade in" rel="nofollow">in IT products is not just engaged in" rel="nofollow">in by corporations - but also sole traders, partnerships and computer games addicts!". Senator Ironside says that his new department has become suspicious as to the in" rel="nofollow">insecurity of the Australian IT in" rel="nofollow">industry, especially in" rel="nofollow">in New South Wales, Queensland and Western Australia. Senator Ironside's in" rel="nofollow">information is that foreign governments and crimin" rel="nofollow">inal gangs purchase various IT products in" rel="nofollow">in Sydney, Newcastle, Brisbane, Townsville and Perth, by usin" rel="nofollow">ing local agents that pose as tourists, who may also bribe locally employed IT workers. Senator Ironside says to you, "my department says that these IT products can be used to produce weapons of mass destruction for rogue states and terrorists". Some of this technology, Senator Ironside believes, will end up bein" rel="nofollow">ing used by hostile governments and terrorists again" rel="nofollow">inst Australia and its in" rel="nofollow">interests overseas, in" rel="nofollow">includin" rel="nofollow">ing allies. Senator Ironside admin" rel="nofollow">inisters the newly created National Security Department. Senator Ironside says he worries that his new bureaucracy is underfunded and needs to rapidly expand in" rel="nofollow">in order to protect Australian society. Senator Ironside provides you with a copy of his draft bill for a new National Security Act. Senator Ironside says that, in" rel="nofollow">in his view, the bill is constitutionally valid and will prove "immensely popular with the voters". If enacted, the bill creates a new National Security Bureau ("NSB") that will "watch over" all aspects of Australian society and, especially, control sales of sensitive technology and keep a register of all persons who participate in" rel="nofollow">in the Australian IT in" rel="nofollow">industry as in" rel="nofollow">innovators, manufacturers, importers, exporters, dealers, contractors and employees. The bill's main" rel="nofollow">in features are as follows: (a) Part 1 imposes a new "Technology Security Fee" ("TSF") on all sales of IT products within" rel="nofollow">in Australia. The TSF is charged and collected by vendors and then paid directly by them to the NSB's bank account to fund its operations; (b) Part 2 requires that all Australian technology busin" rel="nofollow">inesses (defin" rel="nofollow">ined as "any person(s), sole trader, partnership, association or corporation" that builds, repairs or deals with or in" rel="nofollow">in in" rel="nofollow">information technology") that are located in" rel="nofollow">in New South Wales, Queensland and Western Australia must: (i) purchase an IT Security License from the NSB by 01 January 2018 or these busin" rel="nofollow">inesses will be termin" rel="nofollow">inated by the NSB and all of their assets forfeited to the NSB, with no rights of appeal to any court or tribunal; and (ii) provide the full names and personal details of all employees, corporate officers, partners, and shareholders, that are contracted to or associated with any Australian technology busin" rel="nofollow">iness, so as to create a National IT Registry; (c) Part 3 provides that: (i) the NSB may apply ex parte to the court for control orders again" rel="nofollow">inst any person listed in" rel="nofollow">in the National IT Registry. These control orders, if made, would require the person to remain" rel="nofollow">in in" rel="nofollow">in their home, surrender their passport, report to the local police station daily, and ban them from usin" rel="nofollow">ing any in" rel="nofollow">information technology for a period not longer than 10 years; (ii) the person again" rel="nofollow">inst whom the order in" rel="nofollow">in (i) is sought: (1) can challenge the order in" rel="nofollow">in a control order confirmation hearin" rel="nofollow">ing that is closed to the public; (2) must be provided with the prosecution's brief of evidence again" rel="nofollow">inst them; and (3) may only be represented by a lawyer if the NSB agrees; (iii) the court "must make the order set out in" rel="nofollow">in (i) if it is satisfied that on the balance of probabilities the person is or may become a threat to Australia's national security." (d) Part 4 authorises the Commonwealth Government to pay "National Security Bonuses" of $1,000 per household to all citizens to enable them to take any IT security measures at home. Senator Ironside tells you that he is confident the bill would be a valid law. However, he says that he has met repeatedly with the Attorney-General, Ms Antigone Blackstone, to discuss this bill. Ms Blackstone has, apparently, in" rel="nofollow">informally advised Senator Ironside that his proposed bill is "laughable", has numerous constitutional problems and that she doubts any constitutional head of power validly supports any part of the bill. Senator Ironside said, "the Attorney-General treats me with contempt. That is why I need your advice". Senator Ironside seeks your advice on the constitutional validity of his National Security Act before he in" rel="nofollow">introduces the bill in" rel="nofollow">into the Senate on the 1st of February 2017. consider all of the facts of the above and provide your advice on the constitutional validity of each of (a), (b), (c), and (d).