Mock Exam Constitutional Law B

Constitutional Law Exam (Practice)

The questions in this exam are taken, in part, from the tutorial questions – but expanded.

Question one

The Commonwealth government passes a tax act on coal which is 10% tax on the sale of coal. The act also deals with regulations on the way coal is mined in states. If a coal company heeds all the regulations the government will increase the amount of funding given to the States for all its projects. The tax will increase the price of coal sold interstate as the companies attempt to offset the tax increase.

The act also provides provisions for new mining companies that set up in ‘country towns’ will pay only 7% of the tax – this is part of its decentralised sustainable planning policy. To encourage people to go and work in these country towns and to encourage other businesses also the act adjusts the income tax rate for people who work in the mines and live in the country. It also prescribes a reduction in HECS and education costs for miners with children who attend university/school.

• Is there a head of power to support these laws?
• If yes, Is the Act constitutionally valid?

Issues for concern: multi-characterization

• S 51(20) – Corporations power – ‘trading corporation’ –Adamson’s activities test etc.
• S 51(1) – Trade and Commerce.
• S 51(2) – Taxation power.
• S 51(39) – Incidental Power. Constitutional Limitations:
• S 51(2) does it discriminate between States?
• s51(2) – issue of non-coal mining tax compared to coal mining states – Tasmania v Queensland

Regulations – cleaner technology – more funding from federal government gives preference to mining States – Tasmania v Queensland – possible breach of s 99? The coal tax act must deal exclusively with tax anything else [regulations] shall have no effect:

• Section 92 – in effect the laws impact on the ‘absolutely free’ intercourse of trade between states – increase in prices.
• Section 117 – tax reduced to 7% or new business setting up in country towns; adjustment of income tax rates in for country towns – and educational benefits – discrimination between the residences of States.

Question two

The Federal Government makes a regulation in the immigration legislation in relation to that claiming refugee status. It states that the applications of those who come from Middle Eastern countries should not be processed for six months. The Government argues these rules are necessary because the situation in those countries is unsettled, and it is difficult for them to properly assess claims of persecution at this time.

The new regulations also prevent the renewal of all working visas for Middle Eastern people, and require immediate deportation of people whose visas have expired. The new regulations also require that those of Islamic faith (from Middle-Eastern countries) must identify themselves with a patch sewn on their clothes and any mosque must be registered with the Australian Federal Police. The regulations prescribe that the accounting books of these mosques are audited every two months.

There has been a great deal of protest over these new laws and so the government has also passed regulation that attempts to retard the more aggressive protestors by imposing mandatory prison sentences for those people cause grievous bodily harm to police officers in protesting, or cause damage to cars/buildings or other property.

• Is there a head of power to support these laws? If yes,
• Is the Act constitutionally valid?

Issues for concern: multi-characterization

• S 51(19) – Alien power.
• S 51(26) – Race.
• S 51(2) – Emigration or Immigration.
• S 51(39) – Incidental Power.
• S 51(6) – Defence Power (not an issue for the exam – but noteworthy).

Constitutional limitations

• Breach of freedom of religion s 116.
• Implied freedom of political communication
• Possibly an issue of Separation of Powers – Kable – (not an issue for the exam – but noteworthy).

Question three

The Federal Government makes regulation to stimulate the economy and then begins issue handouts to business in the Eastern States, as well as Eastern State Governments.

They argue that because Eastern States contribute the most to our economy their economies are more important coming out of a recession.

• Is there a head of power to support these laws? If yes,
• Is the Act constitutionally valid?

Issues for concern: multi-characterisation:

• S 96 – Grants to the States.
• S 81 – Appropriations – head of power for this section:
• S 51(20) – Corporations power – ‘trading corporation’ –Adamson’s activities test etc.
• S 51(1) – Trade and Commerce. S 51(39) – Incidental Power. Constitutional Limitations:
• Section 99 – preference to States.
• Section 117 – residence.

Question four (Essay Question)

Are rights in Australia sufficiently covered by the Constitution; even when rights have been provided for – right to trial by jury – they have been narrowly construed to circumvent their application? Should this happen? Is a bill of Rights need in our constitutional regime? Are implied rights sufficient?