Australian Constitutional Law

Cover page for the assignment

Constitutional Law in Australia LAWS 11-216 SEMESTER 143

Assignment Outline for an Argument

THE COMMONWEALTH OF AUSTRALIA Respondent AND THE AUSTRALIAN CIVIL LIBERTIES ACTION GROUP (ACLAG) Applicant IN THE HIGH COURT OF AUSTRALIA BRISBANE REGISTRY No 29 OF 2017

A SYNTHESIS OF THE RESPONDENT'S CASE PART I: OVERVIEW

By denying the Civil Liberties Action Group's (ACLAG) claims that Sections 1 and 2 of the Countering Terrorism Activities Act (CTA) are unconstitutional, the Commonwealth of Australia attempts to defend its initial decisions and actions.

PART II: RESPONDENT'S SUBMISSIONS

Section 1 of the CTA is a valid exercise of legislative power under the Constitution of Australia. Specifically, section 1 is within the scope of section 51(xxxi) in combination with section 51(vi).

The need to make amendments to the Australian laws regarding terrorism is an imperative exercise that ought to be done when deemed necessary by the Commonwealth of Australia because of the dire need to protect the residents of the country. For instance, the 2010 Counter Terrorism White Paper notes the increased terrorism threats which have become a persistent problem to the country. Information from the Intelligence agencies also points to the importance of addressing the matter as attacks are imminent. In fact, the Commonwealth could be condemned if attacks happened in the country without effective mitigation by the relevant agencies. As such, the setting up of a research and investigation Centre is a remarkable milestone that is geared towards contributing to efforts by other organizations to handle the terror-related cases expediently. For this reason, it is within the responsibility of the Commonwealth of Australia to put in place radical measures to ensure that terrorism is mitigated using any means at its disposal.

The powers and duty to introduce legislations and making amendments to the existing laws that are of greater national interest are enshrined in the constitution. Section 51(xxxi) in combination with Section 51(vi) gives the responsible agencies the responsibilities of coming up with mechanisms of abating terrorism. The Constitution of Australia identifies the establishment of the Commonwealth and also acknowledges its competence in developing legislations that address issues of national interest. As such, the petitioner cannot purport to criticize the decisions taken by the Commonwealth in the course of their work without issuing alternative solutions to the problems that the respondent intends to address.

The Commonwealth of Australia has the jurisdiction to introduce policies that are deemed essential in offering solutions to the existing problems or to address legal shortcomings of the applicable laws. As such, it is within the mandate of the commonwealth to determine the challenges that exist in matters national security and offer remedy to them as deemed necessary by the people of Australia. History shows that terror-related cases do not result in convictions because of the absence of sufficient information to jail the suspects. The acquittal of people alleged to have committed terrorism crimes is done at premature stages because the agencies that handle the investigations lack sufficient information about the background of the suspects and the possible tiles they could be having with other groups. The new ideas that have been implemented by the Commonwealth, therefore, should not be conceived as being friendly to the terror suspects, but instead as mechanisms of mining information from the accused.

The issue beforehand fails to point out the aspect that is legally or morally negative in the light of the laws of the land. The acquisition of the Pond University Library for research is not done in bad faith, but meant to offer assistance and positive contribution to the body of knowledge of security forces. Besides, the establishment of this agency is meant to protect the rights of suspected terrorists by affording them a fair hearing. The research Centre is a fulcrum of the investigations process by preserving the lives of the suspects for them to offer the information that is fundamental in the settlement of the matter.

The broader National Security Landscape recognizes the need to make counter-terrorism legislations that encompass surveillance, intelligence and telecommunications. The activities by the Commonwealth of Australia are consistent and geared towards addressing this concern. Intelligence operations cannot take place in the absence of information as they rely on interviews, espionage and technology. The research center at the Pond University serves a similar purpose by creating a hub of investigations where the suspected terrorists can be subjected to a panel of specialists who will guide the process of profiling the suspects as well as assessing their connections to the alleged crimes. As such, the respondent wishes to submit that the claims by the respondent that seeks to invalidate Sections 1 and 2 of the Countering Terrorism Activities Act (CTA) are not well-informs as they lack the necessary legal and logical backing.

In the case of Pochi v Macphee, the petitioner submitted that the Parliament has the jurisdiction to enact legislations which are aimed at enhancing peace, order and good governance i9n regards to the Commonwealth of Australia. A similar decision using the same principle was made in Robtelmes v. Brenan, where it was settled that the Parliament had powers to provide for the deportation of Aliens if it was convinced that the underlying reasons for its decisions were justifiable. The same principles are relevant in this case. It is essential to observe that the decision by the Commonwealth of Australia to put in place a special wing that seeks to research on people linked to terrorism is important as it assists the law enforcement and anti-terror agencies to get to the bottom of suspected crimes. Besides, it is essential to acknowledge that this decision is made for the common good of the people as it seeks to cover the residents of the country from potential terrorists in the country by understanding their criminal history. Besides, investigation departments operate in a manner that they rely heavily on the information availed to them. As such, it is our submission that the decision by the commonwealth to establish the research Centre is well-informed and is geared towards addressing the security situation in the country.

Section 2 of the CTA is a valid exercise of legislative power under the Constitution of Australia. Specifically, section 2 is within the scope of section 51(xix). Further, section 2 of the CTA is not in breach of the implied right to vote or the implied freedom of political communication.

The citizenship of an individual to a country is their commitment to the said nation and, therefore, the individual ought to be subject to the laws of the land and pay allegiance to it. An individual who bears the Australian citizenship should recognize the importance of keeping the country safe for themselves and other occupants therein. As such, the citizens who are found culpable of attempting to compromise the security situation of the country should be subjected to a harsh penalty or sanctioned by the state. The decision by the Commonwealth to limit the democratic right to individuals who are uninvolved in terror activities as per the CTA is meant to be a corrective action and as a punishment to their terror-related activities. As such, it is our submission that the petitioner ought to consider the magnitude of the terror problem and acknowledge the need to discourage such atrocious activities and, hence, point out and sanction the members of the society and limit their activities with the sole intention of reinforcing the safety of the country's residents.

Section 2 of the CTA is meant to sensitize people with dual citizenship that in as much as they are entitled to two home countries, it is important to observe the security regulations of their domicile nation because of the significance of the lives of the people who reside in it. The provision is also meant to ensure that people with dual citizenship do not abuse their privilege by compromising the security of their neighbors who do not have the privilege of having an alternative home country. On the same note, the decision of the Commonwealth in Australia to limit the democratic right of the individuals with dual citizenship through voting is meant to ensure that disloyal people should not have the full discretion of making decisions for the common good of the people. As such, the people of Australia cannot entrust people with a terror mentality to make decisions that are effective in safeguarding the nation. It is inconceivably difficult for the people of Australia to trust people who abuse their right to dual citizenship by engaging in terrorism activities as they have alternative homes unlike the majority of citizens whose only home and hope is Australia. For this reason, the respondent submits that Section 2 of the CTA is an express legislation that is meant to restrict people associated with terror from making crucial decisions for law-abiding citizens as such people cannot be trusted to make valuable judgments for the common good of the country.

In the case of Singh v Commonwealth of Australia, the High Court was presented with a question to determine whether the plaintiff was an alien in the light of section 51 (xix) of the constitution. In this case, the weight of the arguments was tiled to the legislative powers of Parliament regarding the law making process for the naturalization of aliens. The proceedings of the case challenged the Migration Act of 1958 (Cth), especially the provisions of Section 198. The section provided for the removal of non-citizens from the country in some circumstances. The plaintiff in this case had Indian citizenship by descent, though she was born in Australia. However, the Commonwealth came to the plaintiff's rescue that in as much as she lacked the Australian Citizenship, it was inappropriate for Parliament, through its legislations to treat her as such. In its ruling, the court ruled that the plaintiff was an alien, but protected her rights by the fact that she was born in the country. In light of the decision made by the High Court, it is evident that the Commonwealth has a right and powers to pronounce itself on matters whose regulations are determined by the Parliament. The Commonwealth is meant to protect the individual rights of persons and not to violate them. The move my the Commonwealth to establish a research and investigations wing as well as offer support to people linked with terror activities is meant to protect the rights of the suspects and at the same time assist the relevant departments to handle the matters expediently. The research Centre is meant to offer a supportive role to anti-terror agencies and not to disjoint efforts by the agencies to do their work.

Reference

Cases

Pochi v Macphee (1982) 151 CLR 101

Robtelmes v. Brenan [1906] HCA 58; (1906) 4 CLR 395, pp. 404, 415, 418-419

Singh v Commonwealth of Australia [2004] HCA 43 222 CLR 322; 78 ALJR 1383; 209 ALR 355

Legislation

2010 Counter Terrorism White Paper

Australian Citizenship Act 1948 (Cth) – ss 10(2), 14.

Australian Citizenship Act 2007 (Cth).

Australian Citizenship Act 2007 (Cth) s 22 General residence requirement.

Constitution of Australia, Section 51(xxxi)

Constitution of Australia, Section 51(vi)

Migration Act of 1958 (Cth)

Report of the Inquiry into Potential Reforms of Australia's National Security Legislation

Section 2, the Civil Liberties Action Group (ACLAG)

Section 2, the Countering Terrorism Activities Act (CTA)

Nationality and Citizenship Act". The Advocate. Melbourne. 15 September 1949. p. 10. Retrieved 9 November2017 – via National Library of Australia.

The Terrorism Act 2000, section 130(1)