The Constitutional Issues and Authorities - Law Assignment Help

Assignment Task :

Assignment 1

Assume that the Commonwealth government is unhappy that Tasmania and some other states have failed to properly protect adolescent children from the damaging effects of domestic violence. In particular, it has been discovered that many child victims have escaped abusive treatment only to fall victim to international child slave labour crime syndicates in South East Asia.

 To address this problem, the Commonwealth government has ratified the Protection of Children against Trade in International Child Exploitation Protocol with New Zealand and South Africa for the purpose of reaching a common understanding in regard to this mounting global problem.

Article I of the Treaty states:

Domestic abuse against children leading to international child slavery is endangering the integrity of the family unit and therefore the future of the world. Signatory nations will in good faith uphold the noble rights of the child and facilitate the protection of children within their borders.

Article II states: 

Each signatory nation shall within reasonable limits, implement domestic laws to assist, foster, nurture the better well being of such children found within that nation’s borders and minimize activities of child slavery. 

In response, the Australian Parliament passes the Child Protection and Anti-Slavery Treaty Act 2019 (Cth). The following selected provisions of the Act declare: 

Section 1: “Child” includes any person aged up to 21 years of age

Section 2: The Federal Police shall have the power to detain, question and hold without charge any person suspected of the ill-treatment of children in any part of Australia.

Section 3: Australian corporations shall have the duty to arrange permanent accommodation and security for any child found in need of protection upon request by the Attorney-General.

Section 4: Any director, officer, employee, landlord, agent, contractor, customer or supplier of an Australian corporation shall be guilty of an offence if the corporation does not within 24 hours arrange permanent accommodation for a child in need of protection upon request by the Attorney-General. Maximum Penalty: 20 Years imprisonment or fine of $20m.

Section 5: Federal Police shall have the power to interrogate and detain any person in connection with Australian corporations’ duty under section 3.

Section 6: The Federal government shall reimburse Australian Corporations, their directors, officers, employees, agents, contractors, landlords, or suppliers any costs incurred in providing accommodation of a child found to be in need of protection, provided that the state in which the corporation operates commits to building a new facility to house children in need of accommodation within 12 months.

Tasmania claims that the Child Protection and Anti-Slavery Treaty Act 2019 (Cth), interferes with the Tasmanian government’s ability to govern for the benefit of all Tasmanian families, but commits to building a new facility to house children in need because it claims it is forced to do it and has no other options. Assume also that the Tasmanian government is a landlord to several large corporations that are likely to be affected by the Act. Several big corporations have already advised the Tasmanian government that they would move their headquarters to New Zealand should the Tasmanian government not accept the conditions of the Commonwealth funding.

REQUIRED: 

You have been retained to act as Tasmanian solicitor-general’s assistant. Advise the solicitor-general whether there are grounds for Tasmania to initiate proceedings in the High Court of Australia on the basis that the Child Protection and Anti-Slavery Treaty Act 2019 (Cth) is invalid under the Australian Constitution. Fully advise the solicitor-general on potential claims under the constitution, including s 51(29) of the Constitution and any other relevant constitutional provisions covered in the first 4 weeks of the course. Do NOT discuss section 109 of the Constitution. Your answer should also include advice whether the law would be compliant if the Commonwealth made any amendments to the provisions as presently drafted.

You should use the IRAC methodology in answering this question.

1. Identify the constitutional issues

2. Recite the applicable constitutional law and authorities

3. Apply the constitutional law to given facts

4. Reach a conclusion on each identified issue.

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