COMMONWEALTH CONSTITUTIONAL LAW

COMMONWEALTH CONSTITUTIONAL LAW

COMMONWEALTH CONSTITUTIONAL LAW

All questions in this assignment must be attempted. • You should address all relevant issues. In particular, in considering the validity of provisions, you should consider all relevant powers or aspects of powers for each provision. • Your answers to these questions should draw ONLY from material relevant to classes 1-8 (ie only the material from the beginning of the course up to, and including, s 109 inconsistency. In particular, the defence power in s 51(vi) should not be considered). • Word limit: The maximum word limit for the take-home assignment will be 2,600 words (strictly enforced). The word length must be set out clearly at the end of the final page of your assignment. • Referencing Requirements: You will not be expected to comply strictly with the Australian Guide to Legal Citation. Case citations must, however, be used to support legal principles and arguments, including the identification of individual judgments as appropriate. However, there is no need in the context of this assignment for formal citation (for example, the popular name of a case might be used), and no need for pinpoint referencing to pages of the law reports (even for quotations). Assessment criteria: Answers will be graded according to the following criteria: • How well you identify the relevant issues from the factual situation presented in the question; • How well you identify and accurately explain the applicable legal principles giving authority; • How well you understand the Constitution and High Court judgments and use them in your legal reasoning; • How well you accurately and concisely apply the legal principles to the factual situation, arguing where possible by analogy from the cases studied; • Your ability to avoid irrelevant issues; and • How well you have structured and written an answer that responds to the question and organises ideas and arguments in a logical way. • (The take-home question follows on the next page … ) 1 BACKGROUND The United Nations General Assembly (UN) has been concerned about the growing incidence of citizens from member states going to other countries to be involved in armed conflict. In February 2015, the UN adopted the following Resolution: (1) We recognise the risk that armed conflict in member states can be escalated if citizens of other member states travel to those areas of conflict. We reaffirm the duty of member states to take all reasonable steps to prevent their citizens from travelling to other countries to become involved in armed conflict. (2) In addition to its involvement in these discussions in the UN, the Commonwealth government has been concerned about:  • The growing number of Australian health professionals who are travelling to other countries to provide medical assistance to those injured in armed conflict; and Efforts within Australia to solicit and encourage persons to provide medical assistance in foreign conflicts. LEGISLATION In March 2015, the Commonwealth Parliament enacted the Foreign Conflict Act 2015 (Cth) (the Commonwealth Act). Its relevant provisions include: Section 4: Definitions • • • • Constitutional corporation means a corporation of a kind referred to in s 51(xx) of the Constitution. Foreign area of conflict is an area outside Australia declared by the AttorneyGeneral. Health services means medical and other health related services, whether or not for payment. Practise means to provide health services to patients for payment. Section 5: Criminal offence to provide health services in areas of conflict It is an offence for any person to provide health services in a foreign area of conflict. Section 6: Loss of entitlement to practise in a health profession A person who contravenes section 5 is prohibited from practising in any health profession in Australia. Section 7: Criminal offence to solicit or encourage health services to areas of conflict (1) (2) It is an offence for any person to solicit or encourage another person to provide health services in a foreign area of conflict. It is an offence for any constitutional corporation to solicit or encourage another person to provide health services in a foreign area of conflict. 2 (3) (4) It is an offence for a person connected with a constitutional corporation to solicit or encourage another person to provide health services in a foreign area of conflict.A constitutional corporation which has contravened subsection 7(2) is ineligible to receive any financial support from the Commonwealth government. QUESTIONS AND FURTHER INFORMATION (Answer all 3 questions) Question 1: Doctor Natalia Romanova is a registered medical practitioner in New South Wales (NSW). She is employed by the NSW government in the emergency department of a public hospital in Sydney. In May 2015, she travelled to the town of Debaltseve in eastern Ukraine to visit family. Whilst there, armed conflict erupted between Ukrainian government forces and proRussian rebels. Hundreds of people were injured or killed. Dr Romanova volunteered her services at the local hospital, assisting with the treatment of injured people. Upon her return to Australia, Dr Romanova is charged with an offence against s 5 of the Commonwealth Act. The eastern Ukraine, including the town of Debaltseve, has been declared by the Attorney-General to be a ‘foreign area of conflict’ for the purposes of the Commonwealth Act. On the assumption that all the elements of an offence under s 5 of the Commonwealth Act can be proved, advise Dr Romanova as to whether the provision can validly apply to her. ___________________________________________________________________________ Question 2: The Health Practitioner Regulation Act 2010 (NSW) (the NSW Act) regulates the provision of medical services by medical practitioners in NSW. Section 10 prohibits a person from providing medical services in NSW unless they are registered as a medical practitioner under the NSW Act. There are two classes of registration under the NSW Act: (i) general registration under s 11; and (ii) restricted registration under s 12. Other provisions of the NSW Act include: Section 13: A person who holds a general registration may practise as a medical practitioner in NSW. Section 14: A person who holds a restricted registration may only be employed in NSW in a public hospital or other public health service. 3 Assume that Dr Romanova is found guilty of an offence under s 5 of the Commonwealth Act. Advise Dr Romanova whether (i) she can continue to hold a general registration under s 11 and to practise as a general practitioner under s 13; and (ii) she can hold a restricted registration under s 12 and continue to work at the Sydney hospital. ___________________________________________________________________________  Question 3: Ms Virginia ‘Pepper’ Potts works for a small non-government organisation called the ‘World Unity Squad Australia’ (WUS Australia). It is incorporated under the Associations Incorporation Act 2009 (NSW). WUS Australia is affiliated with its parent organisation, World Unity Squad International (WUS International), which is based in Geneva, Switzerland, and incorporated under Swiss law. Both organisations aim to address the health needs of people displaced as a result of war. WUS Australia’s activities include education, training and coordinating the provision of health services by Australian health professionals to persons in foreign countries displaced by war. Those health services are provided by Australian health professionals on a voluntary basis. Sixty percent of WUS Australia’s funding comes from grants from the Commonwealth government. The remainder of its finances comes from donations (30%) and education and training provided to corporations on corporate responsibility (10%). Ms Potts organises a meeting with Dr Romanova to discuss her recent experiences in the Ukraine. Dr Romanova takes along with her a colleague from the hospital, Dr Robert Banner. They meet at the Asgard Café in Surry Hills, Sydney. During their meeting, Dr Banner becomes inspired by Dr Romanova’s experiences and expresses his desire to offer his services in overseas countries. The next
day, Ms Potts sends an official letter to Dr Banner indicating that WUS Australia and WUS International would be in a position to finance Dr Banner’s trip to Afghanistan to assist with the ongoing medical treatment of civilian victims of war. Afghanistan has been declared by the Attorney-General to be a ‘foreign area of conflict’ for the purposes of the Commonwealth Act. WUS Australia is charged with offences under each of subsections (1), (2) and (3) of s 7. The basis of the charge under s 7(3) is that WUS Australia, as a person, is connected with WUS International. Advise WUS Australia as to (i) whether it is liable for a contravention of s 7(1), 7(2) or 7(3) of the Commonwealth Act and (ii) whether it is liable to lose its Commonwealth funding under s 7(4).