Introduction to the Australian Constitution
A Constitution is a set of rules and regulations which governs a nation. Australian Constitution consist structure of parliament, it is houses and the powers allocated among them. In Addition to this national constitution, every state of Australia has it is own separate constitution, but there are some subjects on which state cannot make law, these are the subjects which influence matters of national level such as security and defense. In the constitution of Australia there some powers are mentioned such as executive powers, legislative powers, and judiciary powers and so on.
Similarly, constitutional powers are divided in between nation and state. There are some topics define on which only commonwealth can make law, whereas some of them are of nature on which state government also can make laws. In addition to this concurrent list is also there which includes the topics on which both commonwealth and state can make laws.
- Here in the situation given, issue is that whether the powers similar to Australian Federal Police officer can be granted to Government Security Agents, so in order to answer this it may state that Federal Police is the principal agency authorized to ensure the security of Commonwealth of Australia. This agency has crucial powers in respect of crime investigation and control. To give such authority and powers to the government security agents, proper approval chain need to be follow. As per Section 61 of Constitution of Australia, executive powers related to commonwealth are delegated to Queen, which are executed by governor general on her behalf. As Security is the matter of commonwealth list, the same will be required to get Queen’s approval.
- As the Government agency will ensure the general security of national government, the same needs to have some powers in course of performance of their duty. As similar to National Security agency of Australia, this government security agency also expected to secure the targeted people such as MPs, Senators, Parliamentary staff and other government officers. Constitution provides that the proposed laws which are essential in order to smooth operations and which are not contradictory to the current laws will be valid. So, here the submission of personal details such as religion, parental nationalist to agency will be valid under constitution as the same will help to identify the fit and proper person and will restrict the entries of unsocial people in parliament premises.
- Identity card is all essential factors in the field of security. Without a proper Identity card, anybody can have access to parliament premises. In such case there is a possibility to enter some unsocial or unethical people in the premises of parliament. Here it is important to mention that only entry is not a factor to check, whereas these ID cards are required to be with MPs, Senators and Parliamentary staffs so that there will be fear to those who make unauthorized access in parliament and put a question mark on efficiency of security. So, if Government security agency is required to have some powers in the course of performance of their duty, the same are not invalid in the views of constitution.
- (i) Government Security agency is expected to ensure safety of all parliament and Ministerial officers. As earlier mentioned that in order to perform it is duties pertaining to safety of government employees, MPs and parliamentary ministers, it is required to grant some powers to government security agency. But this is also to take care that in course of performance of the duty, one should not disrespect the positions of others. As Positions of MPs, Senators and parliamentary staff are highly reputed, inspection of all of them can be a question of defamation. Further, if to secure their lives and interest the said inspection is necessary then it will not be invalid under constitution of Australia.
(ii) Although security is an essential element, yet the same cannot over bound the right granted to Parliamentary and Ministerial officers. Such Ministers and staff of parliament are human at first instance. Here the role of Australian Human Right Commission also comes into light. Article 9 of International Covenant on Civil and Political Rights 1966 stipulated that a person cannot be detained without the proper justice as everyone has right to liberty and freedom. So, until unless the justification of such detention has made, this action will not be considered as valid under constitution of Australia.
(iii) Parliamentary ministers are the person who takes decision for the commonwealth and keep the crucial record related to the same with them. These records can be the subject of national security. Although, security of parliamentary staff is also necessary but cannot over rule the significance of national security. So, in this context it may state that this proposed Government Security agency can inspect the records of MPs, Senators and parliamentary staff; but only those who are not crucial in nature and inspection of the same would not put any adverse impact on national security.
- Federal Court of the Australia is the superior court, which has jurisdiction and power to entertain the cases related to federal law except family law matters. This court generally looks after the cases related to civil crimes. In addition to this Privacy Act, 1988 (Cth)and The freedom Information Act 1982 (Cth) (FOI Act) are there to regulate matters pertaining to privacy of individuals.
The freedom Information Act 1982 (Cth) (FOI Act) provides that everyone has right to access the information and documents available with ministers of parliament up to the extent they are not include matter of inappropriate personal information. But there is an exemption of this rule that a minister cannot deny to provide the information available with him/her because the same also consist his/her personal information. So, as the issue involved that whether the government security agency can seek order to check e-mail and telephone communication to suspected Senators and Members of the House of Representatives from federal court, it may conclude that the same would already have such powers under the mentioned acts. Further, if the information available with them would be subject matter of inappropriate personal information, then the same will be on discretion of federal Court that whether to allow the interception or not.
Implications of the Proposed Government Security Agency Bill
The Australian Government Cost recovery Policy includes the Provisions and manner related to cost recovery. Australian government made this policy so that the cost pertaining to government services can be recovered. Every government brings some programmes and activities for the government ministers as well as for the general public, and in order to meet out the cost, same has to develop a procedure to re-collect such cost.
Department of finance is one of the department and area under constitution of Australia, which develops the aforementioned Cost Recovery Policies for nation. Cost recovery plans are also important in order to influence the demand of government activities and to provide a better quality of services by government. Further, under this policy , there are some kind of activities are mentioned for which no cost charges fee can be recovered from the persons to whom such services have provided.
These services include general policy development, law enforcement, ministerial support and defense and national security. In the given scenario, issue is that the proposed government security agency is adhere to levy an annual national security surcharge worth $ 1000 per month on all Government Security contractors who have premises in some particular states. So, in reply of this investigation, this might state that the said Government security Agency cannot do so. The reason of the same is that this agency is supposed to provide government security instead national security; further for the matter related to national security and defense no cost recovery charges can be levied according to Australian Government Cost recovery Policy.
- Under the Australian constitution Law, powers of Queen, Governors, Ministers and Senators are define. According to Australian constitution Law, there three kinds of powers are stated such as executive power, Legislative Powers and Judiciary Powers. Executive Powers are vested in the queen. A minister cannot grant permission to make laws by his/her own. A ministry consists of Prime Minister, Cabinet, Minister and parliamentary secretaries in it are primary structure.
Every government departments has it is minister as head of the department. For instance finance minister is the main authority in context of department of finance; whereas Defense Minister would deal as head authority in the matter related to security and defense. Such Ministers are the members of Federal Executive Council and give their vote in passing of a new Law. As stated in the issue that whether the minister for government security can declare certain services as Government Security Jobs, so here to conclude that a minister of a particular department cannot do so. This is subject matter of executive powers of parliament, which can only be exercised by calling the proper meeting of both of the houses of parliament.
- As mentioned in the earlier discussion, that The Australian Government Cost recovery Policy defines the manner in which cost recovery or other kind of charged for the better services can be imposed by Australian government. Security is a matter of protection and also attracts heavy amount of expenditure so it does not remain possible for government to provide the same in free. Here people would submit their application to get themselves declared as holder if Government security Jobs, so in the process of their security vetting, cost would be generated to government of Australia. In the given scenario, the question is that whether minister can do so or not so this is to mention that minister would have power to impose charges or levies to meet out the expenditure accrued. But this minister would be the Finance Minister instead Minister for Government Security.
Collection of charges and recovery of cost is the matter of department of finance and minister of this department would be able to decide that whether to impose any charges in respect of government services or not, and if yes then how much. As here the security mentioned has nature of government security not the national security, security administration fee can be levied under The Australian Government Cost recovery Policy.
- The proposed Government security agency is expected to secure the lives and other interest of national government. Further, minister is adherer to locate the holders of Government Security Jobs in 2600 Postal code area. Here again the right to movement attracts under the Australian Constitution. At the first instant Minister for Government Security cannot declare a particular kind of services as Government Security jobs. Further, if the same has done after following the proper procedure required by the law, then also the said minister cannot give such orders to those people who are the holder of Government security jobs. In Australia, rights of a human are not mentioned in a single piece of paper, instated they are the part o0f constitution, legislation and common law. It was held in the case Peltonen v. Finland, that according to article 12 and 13 of International Covenant on Civil and Political Rights (ICCPR), a person can reside and move to any of the area of the country Australia without any hurdle and restriction. Although this right has some exception. This is to mention that as stated under article 12(3) of the ICCPR, this right can be restrict in the matters of national security. So, here in order to conclude the issue, it may state that Minister of Government security can do so until the same is essential to protect the national security or for other reasons mentioned in aforesaid articles of ICCPR.
- Political views are an individual perception. Every person has right to keep and maintain their personal views and opinion. On the basis of political views, one cannot get dismiss from the job. Here this is also to mention that Minister cannot dismiss the job of a person who is holder of Government Security Job. This is not a power of Minister. Unsound Political views are not a subject matter due to basis on which, a person can get dismiss.
The Role of the Australian Human Rights Commission
Further, if an employee a person is involved in any criminal activities or has done any civil wrong, then the same can get be fired from his/her designation. But in this case also the same would be a judicial power and the same are vested in High court of the Australia. So here it may conclude that in the given case, Minister cannot dismiss an employee on the basis of the fact that the same holds “unsound” Political views.
Conclusion
After discussing the provided four issues, it may state that among the said issues, some are valid under Australian Constitution; whereas some are not. As Senator Cavalier seeks the advice on constitutional validity of the Bill, it is to conclude that the same cannot become a valid law. A bill becomes valid law when it gets required approval from both of the houses of parliament. It also happens that a proposed bill which does not have requisite and characteristics to become a valid law can be passed after alteration. In order to pass a bill, constitutional validity of the same is also a mandatory element. So, here in the given context subjective bill would be a valid law.
References
Peltonen v. Finland Communication No. 492/1992, U.N. Doc. CCPR/C/51/D/492/1992 (1994)
Privacy Act 1988 (Cth)
The Freedom Information Act 1982 (Cth) (FOI Act)
Aroney, N, Gerangelos, Murray, S and Stellios, J The Constitution of the Commonwealth of Australia (Cambridge University Press, 2015, page no 460)
Campbell E, Lee, H P and Campbell E M The Australian Judiciary. (Cambridge University Press, 2013, Page no 11)
Coppel, P Information Rights: Law and Practice.(Bloomsbury Publishing, 2014, Page no 565)
Doeker, G The treaty-making power in the Commonwealth of Australia. (Springer, 2012, Page no 69)
Park, I The Right to Life in Armed Conflict (Oxford University Press, 2018 Page no 19)
Paterson, G L Where to, Australia? (Strategic Book Publishing & Rights Agency, 2018, Page no 247)
Saunders, C and Stone, A The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018, Page no 632)
Smith, H. and Webster, S. A Principles?Based Cost?Recovery Framework for Government Program Resourcing Decisions. Economic Papers. 36(3) Pages 275-288
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Department of Finance, Australian Government Cost recovery Guidelines (2018) < https://www.finance.gov.au/sites/default/files/australian-government-cost-recovery-guidelines_0.pdf>
Department of Finance, Charging for regulatory activities (Cost Recovery) (2015) < https://www.finance.gov.au/resource-management/charging-framework/charging-for-regulatory-activities/>
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Parliament of Australia, Security (2018) < https://www.aph.gov.au/Help/Disclaimer_Privacy_Copyright/Security>
Parliamentary Education Office, The Australian Constitution (2018) <https://www.peo.gov.au/learning/closer-look/the-australian-constitution.html>
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Austrlian Government, Australian Federal Police Act 1979 (2018) < https://www.legislation.gov.au/Details/C2016C00710>
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