CONSTITUTIONAL LAW – MLL323 – THIRD TRIMESTER 2013/14

MLL323 – CONSTITUTIONAL LAW

The Victorian Government decides that it will build the ‘West-East Link’ tollway (‘the Link’)

in a misguided attempt to ease traffic congestion in Melbourne. The construction of the Link will

destroy large areas of parkland in the City of Carringbush in inner city Melbourne. Local protestors

and environmental and public transport activists backed by the left wing Carringbush Council indicate

that they will engage in political protests to disrupt the construction of the Link.

On 1 February 2014 both Houses of the Victorian Parliament pass the West-East Link Bill

2014 (Vic) (‘the Victorian Bill’) by way of a simple majority in both Houses. The Victorian Bill

relevantly provides:

Section 1 Establishment of West-East Link Corporation

(1) The West-East Link Corporation is established as a body corporate.

(2) The West-East Link Corporation is established solely for the purpose of constructing the

West-East Link on behalf of the people of Victoria.

Section 2 Offence to Disrupt Construction of West-East Link

(1) It shall be an offence under this Act to engage in any activity whatsoever which disrupts the

construction of the West-East Link

Penalty: Maximum penalty of one million dollars.

(2) The West-East Link Corporation may issue an infringement notice against any person in

relation to an offence under this section in any sum up to the maximum penalty for the

offence.

(3) If a person issued with an infringement notice by the West-East Link Corporation under this

section does not pay the penalty amount indicated in the infringement notice within 30 days to

the West-East Link Corporation, the West-East Link Corporation may apply to the

Magistrates’ Court of Victoria to register the infringement notice.

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(4) On registration with the Magistrates’ Court of Victoria, the offence indicated in the

infringement notice is deemed to be a criminal conviction imposed by the Magistrates’ Court

of Victoria in relation to the person named in the infringement notice.

Section 3 Power of Minister to dismiss Carringbush Council

Notwithstanding s 74B(2) of the Constitution Act 1975 the Minister may dismiss any Council

if he sees fit to do so on any grounds whatsoever.

The Victorian Bill has not yet received royal assent.

QUESTION 1 (30 MARKS IN TOTAL)

You are approached by Carringbush Council. The Council requests your legal advice as to the

lawfulness of:

(i) Section 1 of the Victorian Bill; (5 marks)

(ii) Section 2 of the Victorian Bill; and (15 marks)

(iii) Section 3 of the Victorian Bill. (10 marks)

Assume that the Victorian Bill receives royal assent as the West-East Link Act 2014 (Vic) (‘the

Victorian Act’) and that the Victorian Act is constitutionally valid. The Commonwealth government

is opposed to the construction of the West-East Link and favours the construction of a Melbourne

Metro Rail System in an enlightened attempt to reduce traffic congestion in metropolitan Melbourne.

The Commonwealth Government has received advice from the Productivity Commission that

Melbourne’s traffic congestion costs the national economy about $10 billion per year and that the only

way to relieve that congestion is to extend Melbourne’s underground rail network. On 1 July 2014

the Commonwealth Parliament enacts the Melbourne Metro Rail System Act 2014 (Cth) (‘the

Commonwealth Act’). The Commonwealth Act relevantly provides:

Section 1 Objects

The purpose of this Act is to facilitate the construction of the Melbourne Metro Rail System

in order to:

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(i) reduce traffic congestion in Melbourne;

(ii) reduce the adverse economic impact of Melbourne’s traffic congestion on the national

economy; and

(iii) reduce Australia’s greenhouse gas emissions in accordance with Australia’s

commitments under the Warsaw Convention on Climate Change by reducing reliance

on private motor vehicle transport within Melbourne.

Section 2 Cessation of Construction of West-East Link

The West-East Link Corporation shall cease all construction work on the West-East

Link within 30 days of the date of commencement of this Act.

Section 3 Establishment of Melbourne Metro Rail System Corporation

The Melbourne Metro Rail System Corporation is incorporated under this Act in

order to construct the Melbourne Metro Rail System.

Section 4: Appropriation

The sum of $50 000 000 is appropriated from the Consolidated Revenue Fund to be

spent by the Melbourne Metro Rail System Corporation to construct the Melbourne

Metro Rail System.

During the 2014/15 financial year the Melbourne Metro Rail System Corporation intends to

spend 10 million dollars on preliminary engineering surveys in relation to the construction of the

Melbourne Metro Rail System.

In 2013 the Commonwealth Government signed and ratified the Warsaw Convention on

Climate Change. Article 1 of the Convention provides that ‘Signatory nations are committed to

reducing their greenhouse gas emissions by 25% from 2010 levels by 2025’.

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QUESTION 2 (30 MARKS IN TOTAL)

(i) Advise the Victorian Government on the validity of s 2 and s 3 of the Commonwealth Act.

(15 marks)

(ii) Advise the Victorian Government on the validity of s 4 of the Commonwealth Act.

(5 marks)

(iii) Advise the Victorian Government on the lawfulness of the proposed expenditure of 10 million

dollars by the Melbourne Metro Rail System Corporation on preliminary engineering surveys in

relation to the construction of the Melbourne Metro Rail System in the 2014/15 financial year.

(10 marks)

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