LAW2104 - A Constitutional Law Issue with ASIO Agent Shavi McGroom

Assignment Task

Question 1

Shavi McGroom is a special agent with Australia’s top secret spy force, known as ASIO. He is deployed overseas to gather information on Italian tomato subsidies, which the Australian Government suspects is contrary to its trade agreements. Shavi’s actions are undoubtedly contrary to Italian law; however, this is not a significant issue for our purposes. More significant is that Shavi spent most of last year and the year to date on the shores of Sicily. He’s gathered a lot of information about olives, but none of that is particularly useful to ASIO, and is therefore not particularly useful to Australia. He has spent all his covert operation budget lying back and having a good time.

Prior to Shavi’s deployment, there had been significant consternation about ASIO spies not doing their job properly while overseas and wasting taxpayer money. The Commonwealth government simply had to act – fast. So in 2022 the Commonwealth enacted the Oversees Mitigation of Gross Dereliction of Duty Act. We will call this the “OMG Act”. There were some concerns about how the OMG Act was to be enforced, and how ASIO agents might feel isolated and alone while overseas. So the Commonwealth further determined that they would establish an ‘Overseas Kangaroo Court’ to hear and determine charges, because the reference to kangaroos was bound to provide a sense of home to the lonely agents. The relevant provisions of the OMG Act are set out below.

Section 5 of the OMG Act reads:

Jurisdiction

s5(1) This Act applies only to ASIO agents; and

s5(2) This Act only applies while ASIO agents are deployed overseas. Section 12 reads:

Gross Dereliction of Duty

s12(1) It is an offence against this Act to be in gross dereliction of duty. Maximum penalty: 5 years imprisonment or $10,000 fine.

s12(2) Whether an ASIO agent has engaged in a gross dereliction of duty is a question of law and shall be determined according to the following factors:

• The nature and scope of the assignment;
• The nature and scope of the assigned duties relevant to that assignment;
• The clarity of the instructions relevant to the assignment;The level of fulfillment of the assigned duties;
• Whether illness or other factors outside the ASIO agent’s control contributed to

the failure to perform their duties.

Section 82 provides for the establishment of the Kangaroo Court. It reads:

Kangaroo Court

s82(1) A Court known as the Kangaroo Court is hereby established.

82(2) The Director-General of ASIO or their delegate shall be the presiding judicial officer of the Kangaroo Court.

Shavi is charged and convicted of gross dereliction of duty and fined $5,000. The Director- General was the presiding officer, and you can take it that the Director-General has correctly applied the law in the OMG Act. You can also take it that the OMG Act purports to apply to Shavi – he is deployed overseas and is an ASIO agent within the meaning of the OMG Act. You work as a junior for the law firm ‘Skive and Partners’. Shavi seeks legal advice from Skive and Partners, and your supervisor asks you to prepare written advice on the constitutional issues. As ever, the tutorial series provides you with the tools you need to answer problem questions. See further instructions on Canvas. There are also further instructions below, and of course there is a marking rubric.

Question 2

For some very general context for this question, you can read this articl

In 2020, the Western Australian government was concerned to protect the integrity of democracy in Western Australia (WA). It had noted various concerns about foreign interference, including the ones alluded to in the article above. [ Do not concern yourselves too much with the chronology in terms of the date of the Crikey article – it suffices to note these sorts of concerns have been around for some time and form part of our general background. ] There had not been any direct allegations against WA politicians, but the WA

Section 10 of the PPIA provided: “It is an offence to receive money from a foreign government or foreign national. Penalty: 3 years imprisonment.”

Section 2 of the PPIA provided various definitions, including ‘receive money’, ‘foreign government’ and ‘foreign national’.

Section 26 of the PPIA provided as follows:

‘No provision of this Act shall be repealed or amended except by an Absolute Majority of both houses and by a simple majority of electors at referendum’.

In early 2024 the concerns about foreign interference increase. With an ordinary majority, the WA Parliament quickly passes the Protection of Parliament from Interference (Double Protection Amendment) Act. We’ll call this the “Double Protection Act”. Relevantly, s2 of the Double Protection Act amends s10 of the PPIA to double the penalty to 6 years imprisonment.

A local politician, John Johann Johnson*, received money in February 2024 from a man named Xi-Ping Ji*. John had no idea that Xi worked for China and is very upset to discover he is being charged under the PPIA and could face up to 6 years in prison. You still work as a junior for Skive and Partners. John seeks legal advice from Skive and Partners, and your supervisor asks you to prepare written advice on the constitutional issues. Your supervisor tells you the elements of the offence are clearly met, and John’s only chance is a constitutional argument. As ever, the tutorial series provides you with the tools you need to answer problem questions. See further instructions on Canvas. There are also further instructions below, and of course there is a marking rubric.

By reference to the modules studied this semester, and only those modules, consider the constitutional issues (and rules, and how those rules apply, and conclude on those issues) that arise from the scenarios above in preparing your briefs. Please note the marking rubric in Canvas. You should not consider every module, rather you should confine your analysis to the issues that arise. The question is designed to be answered primarily from the lecture and tutorial series. For example, you should not consider freedom of political communication in your answer. You do not need to comply with AGLC for this exercise. Inline referencing is acceptable. The case name, year and jurisdiction are important for authority (rules should still have authority!). For case names, the accepted shorthand is best, for example (not a substantive hint!) ‘the Engineers case’ and ‘the Payroll Tax case’.

This LAW2104 - Law has been solved by our PhD Experts at My Uni Paper.