CONSTITUTIONAL LAW

CONSTITUTIONAL LAW

Instructions:

1. This assignment comprises two sections (Section A and Section B):
a. Section A [20 marks] Your answer to Section A should be no longer than 1,000 words.
b. Section B [20 marks] You answer to Section B should be no longer than 1,000 words.

2. Answer each question separately with your student number at the beginning of each answer. Your cover page should have both your name and student number. It would be preferable if you also put your student number on each page and number the pages.

3. The Constitution of Australia Act 1900 (Imp) may be referred to simply as “Constitution”.

4. When citing legislation, references to particular sections should be provided where appropriate.

5. When citing cases, it is not necessary to include the full citation, provided that the citation given is sufficiently clear to identify the relevant case. For example:

“In the Koowarta case, the Federal Court considered the extent of the external affairs power in s 51(xxix) Constitution.

Section A (10 marks): Your answer for this question should be no longer than 1,000 words.
Question 1:

Close adherence to legal reasoning is the only way to maintain the confidence of all parties in Federal conflicts.

Statement of Sir Owen Dixon on his swearing in as Chief Justice

Critically evaluate this statement with reference to both case law and the secondary literature. You should discuss only those cases and secondary material covered in Weeks 1-5.

Section B (20 marks):Your answer to this question should be no longer than 1,000 words.
Christos McCarthy is the proprietor and managing director of an emu farming company, CMU Pty Ltd “(CMU)”. CMU holds a Customs Department export permit under the Export Control Act 1982 (Commonwealth). The scheme of that Act is that all exports of animals, amongst other things, are prohibited, unless officially permitted.

Permits are issued subject to the Act, which includes, in Part IIA, a scheme for ‘Accreditation of Veterinarians for Purposes of Approved Export Programs in Relation to Eligible Live Animals’.

Section 9A defines an ‘approved export program is a program of activities to be undertaken by an accredited veterinarian, or an authorised officer, for the purpose of ensuring the health and welfare of eligible live animals, or the health and condition of eligible animal reproductive material, in the course of export activities’.

Part IIA contains a specific Division titled ‘Offences’, covering both veterinarians and exporters. Part IIA includes an offence of not engaging an accredited veterinarian to certify and monitor the required ‘approved export program’. Part IIA does not however create any specific offences about animal welfare.

CMU engaged a veterinarian, accredited under the Export Control Act, who approved its export program, including its containers.

In a routine inspection at the Brisbane Port, officials of the Royal Society for the Prevention of Cruelty to Animals (RSPCA) come across a cargo of CMU emus bound for export. The emus are in containers up to 15 cm too short for the largest birds to extend their necks fully, a position that will cause them excruciating pain during their last voyage.

Christos, as proprietor and managing director of CMU, is charged under s 18 of the Animal Care and Protection Act 2016 (QLD):

18 Animal cruelty prohibited
(1) A person must not be cruel to an animal.
Maximum penalty – 1000 penalty units or 2 years imprisonment.

(2) Without limiting subsection (1), a person is taken to be cruel to an animal if the person does any of the following to the animal –
(a) causes it pain that, in the circumstances, is unjustifiable, unnecessary or unreasonable;
(b) beats it so as to cause the animal pain;
(c) abuses, terrifies, torments or worries it;
(d) overdrives, overrides or overworks it;
(e) uses on the animal an electrical device prescribed under a regulation;
(f) confines or transports it –
(i) without appropriate preparation, including, for example, appropriate food, rest, shelter or water; or
(ii) when it is unfit for the confinement or transport; or
(iii) in a way that is inappropriate for the animal’s welfare; or
Examples for subparagraph (iii) – Placing the animal, during the confinement or transport, with too few or too many other animals or with a species of animal with which it is incompatible. Not providing the animal with appropriate spells.
(iv) in an unsuitable container or vehicle;
(g) kills it in a way that –
(i) is inhumane; or
(ii) causes it not to die quickly; or
(iii) causes it to die in unreasonable pain;
(h) unjustifiably, unnecessarily or unreasonably –
(i) injures or wounds it; or
(ii) overcrowds or overloads it.

Advise on the application of s 109 of the Constitution to Christos’s case.