Take Home Exam Spring Session 2014

1 Found helpful • 6 Pages • Essays / Projects • Year: Pre-2021 • Previously uploaded under: LLB280 - Constitutional Law

QUESTION 1 (35% -maximum 4 pages) Students to note: the facts and law below are hypothetical. Advise Lionel Messi in relation to the constitutional issues that might arise with respect to the scenario outlined below. Address any constitutional limits which may impact on the application of the legislation and police action. Consider whether Lionel Messi’s statements regarding changing the Constitution are consistent with section 128 of the Constitution. Mr Lionel Messi had lived in Victoria all his life before moving to New South Wales in January 2014. In April, he was pulled over by a highway patrol car, for a random breath test. The police officer saw his Victorian licence and told him he only had a few days before he would have to transfer his licence to a NSW licence, if he intended to stay in the State permanently. The officer told him to have a look at the Roads and Maritime Services Act 2012 (NSW) for details. His neighbour, Mr Cristiano Ronaldo, helped him find the legislation, and the relevant parts seem to be: Roads and Maritime Services Act 2012 (NSW) Long title: an Act to regulate licencing of drivers … 7. All residents of NSW must hold a valid NSW driver’s licence while driving in the State. … Division 2 New licences 10. All drivers in NSW must have passed a driving test in Australia. 11. For the purpose of s 10, driving tests in other Australian States are recognised as relevant tests. 12. On passing a NSW driving test, the driver is subject to a fee of $15 in order to obtain their NSW licence. 13. On transfer of a licence from another State, the driver is subject to a fee of $45 in order to obtain their NSW licence. … 21. A photo must be taken by an officer of the Roads and Maritime Services to be placed on the NSW licence. The photo must: (a) be in colour (b) clearly show the face of the licence applicant (c) not include any head coverings Messi attended the local office of the Roads and Maritime Services, where he complained about the amount of the fee for the transfer of his licence. The officer told him that ‘it was the law’, so he shouldn’t complain to him about it. When he went to take Messi’s photo, he asked Messi to remove his turban. Messi said he could not, as it was part of his faith of being a Sikh. The officer insisted that he could not take the photo while Messi wore his turban, again because it was ‘the law’. Messi left without a licence, furious at the NSW ‘law’. 3 In the meantime, without having a NSW driver's licence, Messi was unable to prove his identity and residency details for the coming NSW elections. This was due to s 92 of the New South Wales Electoral Act 1912 (NSW), which states “The only form of identification which is accepted by the New South Wales Electoral Commission is a valid and current driver’s licence issued in the State of residence.” Messi thought that he wouldn’t be able to enrol to vote without a licence. It is Messi’s understanding that being unable to vote at the State level would lead the Commonwealth Electoral Commission to automatically reject his application to vote for the Commonwealth Parliament. Unhappy with this situation, one week before the election, Messi went to the city mall and put up some big posters and also distributed pamphlets stating his views as follows: 1. Australia is a racist country since the Constitution fails to protect minority groups. Not even our democratic right to vote is protected from discrimination! 2. Without referenda, Judges of the High Court, who are not democratically chosen but appointed, have made plenty of 'alterations' to the Constitution through their interpretation. The High Court has robbed our rights as citizens. Only we can change the Constitution, when the people rise up for change, regardless of the powers of the judges or even the politicians. We should start a revolution to get our rights back! 3. As a result of a revolution, we as citizens should draft an interim constitution to replace our current Constitution. Messi was arrested for distributing 'objectionable material' and for 'disorderly conduct', offences established by the Electoral Posters Act 1920 (Cth), an Act to regulate the placing of political campaign advertising: Electoral Posters Act 1920 (Cth) 2. For the purposes of this Act, a publication is objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good. … 6. A publication shall be deemed to be objectionable for the purposes of this Act if the publication promotes or supports, or tends to promote or support,— (a) the use of violence, or coercion to compel any person to participate in, or submit to, political revolution; or (b) acts of torture or the infliction of extreme violence or extreme cruelty; or (c) promotes to depose democratically elected government4 (d) …. ……….. 13. It is an offence to place an election poster in any place where it may give rise to a danger to public safety. Maximum penalty: 2 years’ imprisonment. …. 17. Every person is required to conduct himself in an orderly manner in or near the polling station and to obey the lawful directions of the Presiding Officer. The polling agents should maintain strict discipline and order in their conduct in the polling station. If any person behaves in a disorderly manner or misconduct's himself or fails to obey the lawful directions of the Presiding Officer, the Presiding Officer is authorised to have such man removed from the polling station. If any such person re-enters the polling station, without the permission of the Presiding Officer, he can even be got arrested and prosecuted for an electoral offence punishable with imprisonment for a term which may extend to three months or with fine or with both. QUESTION 2 (15% -maximum 2 pages) The High Court permits the grant of non-judicial powers to judges of a federal court in their personal capacity (as persona designata). What is your view on this issue? Discuss!

This document is 10 Exchange Credits