Primary Examination for the Bachelor of Laws

Semester 2, 2013

XXXX (course id)

Official Reading Time:

Writing Time:
Total Duration:

PRINCIPLES OF PUBLIC LAW

LAW 1504

10 mins
150 mins
160 mins

Instructions for Candidates

This is an open book examination

This examination consists of PART A and PART B
Students should answer ALL THREE (3) QUESTIONS IN PART A, and
ALL TWO (2) (BOTH) QUESTIONS IN PART B
Each of the FIVE (5) questions in the examination is worth TWENTY (20)
marks.

Permitted Materials

Candidates may take into the examination room any book or materials
other than those borrowed from a University Library.

DO NOT COMMENCE WRITING UNTIL INSTRUCTED TO DO SO

PART A PROBLEM QUESTIONS

Answer ALL the questions following the set of facts
The Australian Government is alarmed and concerned at the increasing prevalence of
tuberculosis (TB), a highly contagious and often deadly disease spread through the
air when people who have an active TB infection cough or sneeze. For the past fifty
years tuberculosis has been well managed by antibiotics, but it is reported to the
Government that there are new strains entering Australia which seem immune to
antibiotics and there are reports of many more resistant TB infections and deaths
linked to TB.
Cabinet decides the Government should commission confidential reports from two
Australian health experts, one from the CSIRO and the other from the University of
the Southern Stars (UniSS). The reports are received and initially sent to
Department of Prime Minister and Cabinet (PMC). PMC decides that one of the
reports would not be useful as it suggests that no action other than more frequent
attention to hand washing is necessary to stop the spread of infection. The other
report is submitted to Cabinet for its consideration.
Cabinet meets and considers the reports. It decides on legislative action, and
subsequently Parliament passes the TB and other Infections Containment Act 2013.
[Assume the Commonwealth Parliament has an appropriate head of power
under which to enact this legislation and that it is valid under that head of
power].
The Commonwealths TB and other Infections Containment Act 2013 contains the
following provisions:
Section1
The purpose of this Act is to contain and prevent the spread of tuberculosis
and other associated infections in Australia.
Section 2
(a) The Minister may direct the quarantine of any person diagnosed with any
of the symptoms of tuberculosis.
(b) Symptoms of tuberculosis include chronic coughs, fever and chills.
Section 3
(a) The Minister may quarantine any person who has had any association with
a person who has been diagnosed with the symptoms of tuberculosis
pursuant to section 2.
(b) Association means any physical contact, connection or relationship.
Section 4
The Minister may declare any residential or commercial area to be a
quarantine zone if:
(a) The Minister is satisfied that more than one person who has been the
subject of quarantine order pursuant to section 2 or section 3 lives or
works in that area; and
(b) The Minister has received a report from a nominated person that the area

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presents a serious risk of contagion.

Section 5
Any person affected by the decision of the Minister to declare an area to be a
quarantine zone pursuant to section 4 may seek a review of the Ministers
decision in the Administrative Appeals Tribunal, but there is no other or
further right of review of the Ministers decision.
Section 20
(a) On the application of the Minister, the Federal Court of Australia must
make an order detaining any prisoner who has been diagnosed with the
symptoms of tuberculosis until the prisoners symptoms have been
eliminated.
(b) On the application of the Minister, the Federal Court of Australia must
make an order detaining for an indefinite period any prisoner who has been
convicted of any offence related to the spreading of any disease nominated
in regulations made under this Act and who the Court believes is more
likely than not to pose a danger to the community if released.
(c) In making an order under subsections (a) and (b) the rules of evidence
apply and the Court must be satisfied that the Minister has established the
facts on which the order is sought to be made.
The regulations made under the Act specify a number of diseases for the purposes of
section 20(b), including Human Immunodeficiency Virus (HIV).
QUESTION 1
Anton is a the managing director of Australian Clean Water Ltd, a private company he
owns, and is well known as a contagion denier. He proposes that if chemoclorax
(CC), a chemical which he produces, were added to the public domestic water
supply, most infections would be eliminated, as he asserts that most infections are
caused by bad water, which CC would clean. The Government has condemned
his proposals and declared that the position he takes on the question of contagion (that
infection is not spread by human contact but by bad water) is damaging its public
health measures and threatens the safety of the community.
Anton is keen to access the reports commissioned by the Government, especially
because he has heard that one of the reports was not taken to Cabinet. He wants to get
copies of both the reports so that he can discredit the Government and the legislation
and promote his own views and commercial interests.
Advise Anton of his legal options to obtain copies of the reports.

QUESTION 2
The Minister appoints Justice Brown of the Federal Court as the nominated person for
the purpose of section 4. Justice Brown is widely acclaimed as an appropriate person
for this role as she was an environmental scientist before she became a lawyer, and

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her legal practice and experience prior to her appointment to the Federal Court was in
the areas of environmental and health law. The Minister states in announcing Justice
Browns appointment that he appreciates that the power vested in him under section 4
is a controversial power and he will only exercise it on Justice Browns advice which
he will not in any circumstances question.
Bernie lives in the same apartment building as two people who have been quarantined
under section 2. The building has been made the subject of an order under section 4.
The Minister receives a report from Justice Brown that the area presents a serious risk
of contagion, and the Minister declares the apartment block to be a quarantine zone.
The Minister states in making the declaration that Justice Browns report cannot be
challenged on the ground of credibility or expertise as the Judge is highly esteemed as
a member of the Federal Court, and also an expert in these issues. The Minister
states that he had no need to even read the report as he was completely committed to
leaving the decisions about these issues in the hands of the expert, Justice Brown.
One of the quarantined people in the apartment suffers from malaria, which shares
some symptoms with TB, namely fever and chills, and the other person quarantined
says she just has a cold. They both object to their quarantining.
Advise Bernie where and how she can get the Ministers decision reviewed and the
arguments she could use to do so.

QUESTION 3
Chris is currently in prison and his release date is 1 December 2013. Chris has been
convicted of deliberately infecting his former girlfriend Dee with HIV. His conviction
followed a trial in which Dee gave evidence against him, along with a number of her
friends who gave evidence of threats Chris had made to take as many women as
possible with him because he blamed women for his own HIV infection. While in
prison Chris has written a number of letters to Dee and her friends blaming them both
for his medical condition and his imprisonment, and saying that once he is released he
will make sure they and as many other women as possible all get what they
deserve.
The Minister brings an application to the Federal Court seeking an order for Chris
indefinite further detention so that he is not released on 1 December.
Advise Chris.
Would your answer be different if the TB and other Infections Containment Act 2013
was a South Australian statute, with the order to be made under section 20 by the
State Supreme Court? Explain your answer.

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PART B SHORT ANSWER QUESTIONS

Answer BOTH these questions
QUESTION 4
A no legal effect clause has accompanied the recognition of Indigenous peoples in
State Constitutions where this recognition has occurred.
Explain what a no legal effect clause means, and the benefits and disadvantages of
such a clause in this context.

QUESTION 5
Has the High Courts development of the Kable principle been a positive development
in Australian constitutional law?
Using three case examples, explain whether you think it has been effective in
protecting individual liberties.

END OF EXAMINATION