Assignment

Answer all three questions 

Alarmed at current events in the United States and wishing to avoid similar tensions in Australia, the Commonwealth Government declares that 2021 will be ‘Celebrating Australia’s Aboriginal History Year’. Celebrating Australia’s Aboriginal History Year will involve a program of organised activities including a major Aboriginal History exhibition, to be held in Canberra, and specially developed Aboriginal History Education programs, to be implemented in schools around the country.

To support Celebrating Australia’s Aboriginal History Year, the Commonwealth Parliament passes the Celebrating Australia’s Aboriginal History Act (2020). The Act provides:

Section 5 

Any person engaging in race-related protests is guilty of an offence. Maximum penalty: $1000 fine.

Section 9

Upon application by the Commissioner of the Australia Federal Police, the Federal Court of Australia may issue a control order against any individual whom the Commissioner suspects of planning a race-related protest. 

Section 10

A control order issued under section 9 of this Act prohibits an individual from attending any gathering of 10 or more people under any circumstances or for any purpose.

Jarrah and his friends are Law students at the University of Tasmania. As part of planning for the university’s Celebrating Australia’s Aboriginal History Year activities, Jarrah begins collecting newspaper articles about key High Court cases relating to Aboriginal rights in Australia. Jarrah sends an email to his Public Law lecturer telling her what he is doing and asking for her assistance to organise a public exhibition of the newspaper articles. Three days later, Jarrah receives a letter from the Federal Court of Australia advising that he is subject to a ‘control order’ issued under section 9 of the Celebrating Australia’s Aboriginal History Act. The letter states that Jarrah must not join any gathering of 10 or more people. Jarrah is extremely disappointed as this would prevent him from attending the opening of the exhibition that he and his friends are planning.

After receiving notice of the control order, Jarrah becomes concerned about other aspects of at the Commonwealth Government’s planned Celebrating Australia’s Aboriginal History Year as well. He wishes to challenge the government’s program for Celebrating Australia’s Aboriginal History Year as well as the control order issued to him in the High Court of Australia.

Prepare a written submission on behalf of Jarrah addressing the following legal issues (questions):

Question 1

Is the Commonwealth Government’s planned Celebrating Australia’s Aboriginal History Year supported by the Commonwealth Executive’s ‘nationhood’ power? (Note: you should consider both whether it ‘protects’ or ‘promotes’ the nation in a way that is supported by the nationhood power and whether any limitations on the nationhood power apply.)

Question 2

Is the Celebrating Australia’s Aboriginal History Act (2020) valid under section 51(xxvi) of the Constitution (the ‘races’ power)?

Question 3

Does the control order issued to Jarrah under section 9 of the Celebrating Australia’s Aboriginal History Act infringe the separation of powers in the Australian Constitution?

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