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LAWS4001 Constitutional Law

tag 0 Download 13 Pages / 3,196 Words tag 31-12-2020


It is June 2018 and you are a constitutional lawyer in Sydney, who is often asked to advise the Australian Government. You are looking forward to a long weekend of relaxation, of leaving the demanding practice of constitutional law behind you, and seeing Souths’ win gloriously in the NRL.

However, at 5pm on the Friday afternoon before you leave work, your telephone rings and you are asked to meet in Canberra, urgently, with the newly appointed Minister Without Portfolio, Senator Antigone Cavalier of South Australia.  Senator Cavalier is to administer the proposed Government Security Agency ("Agency"), which was to be funded out of the recent Budget. The Agency’s creation has been criticised by the media as redundant, given other existing government departments and agencies. 

Nonetheless, on the following Tuesday, you go to Canberra and meet with Senator Cavalier at Parliament House.  Senator Cavalier informs you that she is concerned by the general insecurity of the national government. She tells you that the problem starts with the Parliament, the politicians and public servants, who she thinks are of dubious loyalty to Australia. Senator Cavalier says, “The problem begins in Canberra. This place leaks! I must have the power to accredit everyone here and I must have the power to fire them! I also need my own source of income to run this department and to help Government Security to pay for itself.”

Senator Cavalier promises you a full briefing on the nature of the threat. She says that there is a need for a broad new agency with extensive power to investigate the parliament and the government. She tells you, “The enemy is here! The enemy is often within Parliament House!”

Senator Cavalier hands you a copy of her Bill.  The Bill’s main provisions include these features:

Part 1

Establishes the Government Security Agency ("Agency") which:

Recruits and employs Government Security Agents (“Agents”), who are deemed by the Bill to have all the same arrest and investigatory powers as an Australian Federal Police officer;
Requires all current MPs, Senators, Parliamentary staff and those aspiring to be political candidates to provide to the Agency the full details of:
    1. their ancestry;
    2. religion;
    3. parental nationalities; and
    4. political views;

So that they can be approved by the Agency as fit and proper people to enter the Parliamentary precincts, whether as an elected member or senator, or as a parliamentary staff member; and

Requires all MPs, Senators, Parliamentary staff and political candidates approved under (b) to obtain and to carry a Government Security identity card (“ID card”) at all times.

Part 2

Concerns the powers of the Agents who are authorised:

On any matter pertaining “Government Security”, the Agents may:

Inspect all Parliamentary and Ministerial offices;

Detain and question MPs, Senators and parliamentary staff; and

Inspect the records of MPs, Senators and parliamentary staff;

On application to the Federal Court, the Agents may seek an order permitting the Agency’s interception of the telephone calls, mail and communications of Senators and Members of the House of Representatives who are suspected to have “compromised” the security of Australia.

Part 3

Imposes an annual national security surcharge ("Surcharge") of $1,000 per month on all Government Security contractors who have premises in Canberra, Darwin, Perth, Townsville and Brisbane, which is payable to the Government Security Agency.

Part 4

Confers upon the Minister for Government Security the power to:

Deem certain public service positions as “Government Security Jobs”;

Impose a security administration fee (“Fee”) of $100 on all applicants for Government Security Jobs to pay for their extensive security vetting;

Require those employed in Government Security Jobs to reside only in the 2600 postcode area; and

Dismiss holders of Government Security Jobs if the Minister forms the view that an employee holds ‘unsound’ political views.
Senator Cavalier tells you that she is confident the bill would be a valid law. She also says that the Attorney-General agrees that the bill is constitutional and that the High Court would agree. Nonetheless, to be sure, Senator Cavalier seeks your considered advice on the constitutional validity of the Bill, before she introduces it into the Senate on the 1st of August 2018.
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Total 13 pages

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