The constitutional validity of each element of a Transport Security Protection Board (“Board“), which promotes safe travel and vigilance by Australian travellers;
It is December 2018 and you are a constitutional lawyer in Canberra who is retained to advise the Australian Government. You are looking forward to a long summer holiday and leaving the demanding practice of constitutional law behind you. Late on a Friday afternoon, however, your telephone rings and you are asked to meet urgently, with the newly appointed Minister for Administrative Security, Senator Antigone MacAdder of Queensland.
Senator MacAdder administers the new Transport Security Department (“TSD“), which was created by the recent Budget. The TSD is a new department and there has been much media criticism that the department is already underfunded, pointless and plays no useful role in the Australian Government.
Nonetheless, you meet with Senator MacAdder at Parliament House. She informs you that she is concerned that Australian holiday makers are at grave risk of suffering terrorist attacks, late flights, poor security facilities, and, also, lost baggage. Senator MacAdder is particularly concerned by what she says are reports by the police and the security services that passports and identity documents issued by the Australian Government are finding their way into the hands of criminals, terrorists and hostile foreign governments. She has promised you a future security briefing by her department. Senator MacAdder makes many references to recent terrorist attacks and says to you, “the government’s first duty is to protect the people!”
For now, Senator MacAdder wants you to examine her proposed Transport Security Act (“the Act“). The proposed Act, in Senator MacAdder’s view, will protect Australian travellers in the coming holiday period (and after) from the threat of terrorism. She adds, also, finally, that she is concerned that the Australian Parliament not be composed of anyone who “cannot be trusted” and “we need to find out who should and should not be in the Parliament…and if they cannot be in Parliament, they should not be travelling either. They need to be watched closely”.
Provisions of the Act include these features:
- Part 1 establishes a Transport Security Protection Board (“Board“), which:
- promotes safe travel and vigilance by Australian travellers;
- requires an annual transportation security fee of $100,000 (“Transportation Security Fee”) to be paid by all aircraft owners, pilots, and freight companies, located in Sydney, Brisbane, Perth, Darwin, and Melbourne;
- pays, on application from passenger-carrying airlines, a “Transport Security Bonus” of $50,000 as compensation for complying with the new Act’s provisions; and
- may initiate proceedings (both civil and criminal) against any travel firm who has engaged in conduct and/or offences against the Act;
- Part 2 requires that all “travel suppliers” (defined as “any person(s), sole trader, partnership, association or corporation” that deals with or in providing passenger travel and freight services“) must become registered suppliers under the Act by:
- purchasing a Transport Security Licence (“Licence“) from the Board by 01 April 2022 or their business will be terminated by order of the Board and their assets forfeited to the Fund set up in (5) below; and
- providing to the Board, the full names and personal details of all employees, corporate officers, partners, and shareholders, that are contracted to or associated with any supplier of goods and services to the transportation industry, so as to create a Transportation Security Registry;
- Part 3 requires that every Australian have a valid Travel Identity Card issued by the Board as proof of identity and citizenship, which is to be issued at the fixed cost of $50 to each Australian. There is a further requirement in this Part that each Australian carry their Travel Identity Card when entering any port, airport, or railway station, even if not travelling, and to produce their Travel Identity Card when asked to do by Police. Failure to produce a Travel Identity Card when required by police is a criminal offence punishable by a fine of $10,000 and/or 1 year in prison;
- Part 4 requires that no Member of the House or Senator is allowed to board an aircraft, train, or ship, unless they first have a Parliamentary Identity Card issued by the Board, which is granted only when a Member of the House or a Senator has proven they are themselves eligible to sit in the Parliament; and
- Part 5 requires that all monies collected by the Fee in (1)(b) to be paid into the Transport Security Protection Fund (“Fund“). The Board may then use the Fund’s monies for any purpose set out in the Act, including making grants to new suppliers of transportation security products based in Adelaide, Canberra, and Norfolk Island;
Senator MacAdder tells you that she is confident the bill would be a valid law.
However, she says that she has met repeatedly with the Attorney-General, Mr Jebediah O’Cafelatte QC MP, to discuss this bill. The Attorney-General has, apparently, informally advised Senator MacAdder that her proposed bill is “laughable“, “Orwellian”, and that he doubts any constitutional head of power validly supports any part of the bill. Senator MacAdder says, “the Attorney-General treats me with contempt. That is why I need your advice. Also, he knows that I know his mother is Canadian. And the Deputy Leader’s father was born in Russia, you know.“.
Senator MacAdder seeks your advice on the constitutional validity of each element of the proposed Act before she introduces her bill into the Senate on the 1st of April 2019.
Examine all of the facts of the above and provide your opinion on the constitutional validity of each of (1)-(5) above.
Remember to include:
- accurate word count
- accurate footnotes
- accurate bibliography
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