Constitutional Law Summer 2018-19 Assignment: Transport Security Act

This report analyzes the proposed Transport Security Act, examining its various provisions and their constitutional validity within the Australian legal framework. The report begins with an introduction to the context, including the concerns of Senator MacAdder regarding security issues such as terrorism, delayed flights, and document verification. The act is divided into five parts, each of which is analyzed for its constitutionality. Part 1 focuses on the establishment of the Transport Security Protection Board and the imposition of fees and bonuses, concluding that these provisions are generally valid but should be extended nationwide. Part 2 examines the registration of travel suppliers, the need for a Transport Security License, and the requirement to provide worker details, suggesting modifications for enhanced validity. Part 3 covers the mandatory Travel Identity Card, assessing the implications of requiring all citizens to carry identity cards and the associated fees. The analysis includes relevant case laws to support the arguments. The report assesses the act’s potential impact on civil liberties and suggests modifications to ensure compliance with constitutional principles, offering a comprehensive legal review.

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Civil Law

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Introduction
In December 2018, the constitutional lawyer of Canberra, who is the legal advisor of the
Australian government, is requested to conduct a meeting as soon as possible with the newly
recruited minister for the administrative security, known as Antigone MacAdder of Queensland.
He was the administrator of the transport security department (TSD) as created in the latest
planning of the budget of that year. The creation of this department was new and it was subjected
to various forms of criticisms from the media and other backgrounds1. After a meeting with
Senator MacAdder at the Parliament house, the lawyer is informed that the people who visit
Australia face various and grave issues like terrorist assaults, delayed flights, poor security
services and losing of luggage. Senator MacAdder is specifically tensed about the reports from
the police and the security services. There are also concerns regarding the passports,
identification of the documents by the government of Australia. The relationship with the foreign
governments also is under consideration. The senator commits to the constitutional lawyer that,
“the government’s first duty is to protect the people!” and wants to undertake immediate steps to
adhere to the same. The constitutional lawyer is requested to go through the functioning of the
proposed Transport Security Act. As per the opinion of Senator MacAdder, the proposed act
would be very advantageous for the holiday makers who intend to spend their vacations in
Australia and would be protected from the ill effects of the terrorist assaults2. The senator
claimed that only the most loyal and the trusted people should be recruited under this sector.
There would be complete supervision and monitoring upon the workers engaged in such purpose.
Certain provisions of the act are mentioned in the facts of the case section. They are later
depicted in the section of the provisions of law involved in the case. The senator is very
confident for the rules and regulations of the bill and is assured that such a bill would be
1Benno Engels and Gang-Jun Liu. "Social exclusion, location and transport disadvantage
amongst non-driving seniors in a Melbourne municipality, Australia." Journal of Transport
Geography, 19(4), 2011, 984-996.
2Alexa Delbosc and Graham Currie. "Modelling the causes and impacts of personal safety
perceptions on public transport ridership." Transport Policy, 24, 2012, 302-309.

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converted into a valid law3. The senator has had plenty of conversations and meetings regarding
this bill with the Attorney General, Mr. Jebediah O’ Cafelatte QC MP. The attorney general
opined that such a bill possessed no seriousness and it would be a laughing stalk in the procedure
of law. The senator was treated with contempt by the attorney general and thus required legal
advice from the constitutional lawyer with regard to the provisions of the TSD bill.
Upon an examination of the provisions of the transport security act, it can be stated that such was
divided into five parts4. A close perusal of the act includes the following information:
Part 1: Transport Security Protection Board
The first part lays stress upon the establishment of a Transport Security Protection Board which
would propagate in the secured travelling and transmission of persons and goods by the
Australian travelers. The establishment of the board needs the deposition of a security fee of
$100,000 from all the owners of the aircrafts, pilots and the fright companies which are situated
in Sydney, Brisbane, Perth, Darwin and Melbourne5. The board would pay from the passenger
carrying airlines a sum of $50,000 as a Transport Security Bonus upon application to the people
aggrieved as damages in compliance with rules and regulations of the latest act. The board would
be empowered to initiate both civil and criminal suits against the travel firms for the causing of
any kind of misconduct, contempt or any offence in relation to the above mentioned facts6.
3 Benno Engels and Gang-Jun Liu. "Social exclusion, location and transport disadvantage
amongst non-driving seniors in a Melbourne municipality, Australia." Journal of Transport
Geography, 19(4), 2011, 984-996.
4ChrisKoniditsiotis, Jerker Sjögren, and StenWandel. "HIGH CAPACITY TRANSPORTS
(HCT) IN SWEDEN AND AUSTRALIA–EXPERIENCES AND ROAD MAP TO THE
FUTURE." Proc. 12th International Symposium on Heavy Vehicle Transportation Technology,
Stockholm Sweden, 2012.
5JonathanLiberman. "Plainly constitutional: the upholding of plain tobacco packaging by the
High Court of Australia." American Journal of Law & Medicine. 39(2-3), 2013, 361-381.
6David RBoyd. The environmental rights revolution: a global study of constitutions, human
rights, and the environment. London: UBC Press, 2011.

4
Looking upon at the above provisions it can be stated that such provisions would be deemed to
constitutionally valid. The taking of the hefty sum of $100,000 would be pinch in the pocket of
the owners of the aircrafts, pilots and the freight companies from before. This would create an
added responsibility among these people to take special care of the sums they have incurred for
this purpose7. Naturally, they would want to take the special care so that their money is not
wasted for the purpose of providing security and protection to the passengers while they travel
within Australia. To add to this, there needs to be paid a compensation of a further $50,000, in
case there is violation of the act. This feature would be considered to be constitutionally valid.
This is because, unless stringent laws are imposed for this purpose, the laws would not be
followed. In order to curb all the malpractices with regard o the transportation, the constitution of
Australia should impose these kinds of monetary punishments as damages to make good the loss.
These features are valid as per the constitution of Australia.
However, these provisions extend only to the metropolitan areas of Australia including Sydney,
Perth, Melbourne, Brisbane and Darwin. Since there is an escalated transport system here, the
board is established her. But such measures should be extended to the whole of Australia. This is
because the rules and the articles provided in the constitution of Australia with regard to the
transport and security, extend to the whole of it and not to selected regions. This is considered to
be constitutionally invalid. There should be no discrimination among all the places in Australia
for the purpose of securing the citizens. In order to support this, there are relevant case laws are
Pirrie v McFalane and Commonwealth v Cigmatic8.
7 Chris, Jerker Sjögren Koniditsiotis and StenWandel. "HIGH CAPACITY TRANSPORTS
(HCT) IN SWEDEN AND AUSTRALIA–EXPERIENCES AND ROAD MAP TO THE
FUTURE." Proc. 12th International Symposium on Heavy Vehicle Transportation Technology,
Stockholm Sweden, 2012.
8 Vivienne Bath, "Foreign investment, the national interest and national security-foreign direct
investment in Australia and China." Sydney L. Rev., 34, 2012, 5.

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Part 2: Travel Suppliers
The second part of the act needs all the travel suppliers to register themselves under the act. The
travel suppliers have been defined as a person who may be a sole trader or under partnership,
association or corporation that deal with the provision of adequate services during travel and the
freight services to the passengers. The travel suppliers should become registered suppliers
through the buying of the Transport Security License from the Board within the specified date of
1st April, 2022. Not complying with these provisions would determine their business through the
commands of the Security Board and all their assets and securities would be finished to the level
of setting up funds9. The other way is giving to the Board, the complete and accurate details of
all the workers, officers of the corporate fields, partners and the shareholders who have come
into a contract with the help of the supply of the goods and services to the transport industry.
This is the other mode of becoming a registered supplier under the act10.
This portion of the act provides a conclusive definition of the Travel suppliers. The definition is
exhaustive and it comprises of various people under this category. Within the arena of the travel
suppliers, there is included the sole traders, partnership firms, corporations, companies and the
associations. Such travel suppliers should always be registered. The registration becomes an
essential mode of letting the government of Australia know about all such travel suppliers. The
registration can be obtained by the buying of the Transport Security License from the board
within the date of 1st April, 2011. In case this is not purchased, the company would be
terminated. Such a measure is deemed to be valid as per the provisions of the constitution of
Australia. However, these provisions can be enhanced with the addition of certain measures.
Unless the travel suppliers are registered, they should not be permitted to sue or undertake court
proceedings whether civil or criminal11. Adding these laws would make the second part valid as
per the constitution of Australia. There is every need for the provision of details of personal
factors and factors relating to business to the Board. However, this measure should be altered.
Instead of this, all the details should be furnished to the board as early as possible during the
9VivienneBath. "Foreign investment, the national interest and national security-foreign direct
investment in Australia and China." Sydney L. Rev., 34, 2012, 5.
10Robert LMaddex,Constitutions of the World. London: Routledge, 2014
11 Robert L Maddex, Constitutions of the World. London: Routledge, 2014.

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initial periods of registration or during the purchasing of the Transport Security License. In this
way the government of Australia would have a hold upon all these companies and ensure that
they work according to the proper security and protection of the citizens during travelling.
Altering these laws would deem to make it constitutionally valid as per the regulations of
Australia. In order to support these, certain case laws have been cited for this purpose. They
mainly include, Bath v Alston Holdings and Victoria v Commonwealth (ILO case).
Part 3: Travel Identity Card
The third part encompasses the requirement that every Australian citizen should possess a valid
and accurate identity card made under the rules and regulations of the Transport Security Board,
as an evidence of citizenship and the uniqueness of identity. There is a specified cost for it, that
is $50 per Australian. It is required for every such citizen to carry their identity proofs during
their periods of travel in the ports, airports or the railways department. They should be bound to
produce and disclose their identities before the police when asked upon to do so. The failure to
abide by such laws would render the citizen to be under the criminal offense with a period of one
year imprisonment and a fine up to $10,000 per person. The citizens of Australia should always
carry their identity cards, even when they are not travelling.
Thus, the carrying of the identity cards to all places is considered to e mandatory for the
recognition of every citizen. In this way, they can prove many facts in various situations and the
identity cards would act as a source of evidence. The issuing of the identity card requires a fixed
sum of $50 for every citizen. No citizens should be discriminated upon this basis. However, this
measure can be made valid as per the provisions of the constitution of Australia if this fixed
amount is subjected to a reduction. This is because the motive of the constitution of Australia
aims to serve the people of all classes without any form of discrimination12. Since the making of
the identity card, would be a mandatory provision for all the costs should be altered and reduced
to a minimum amount. This is primarily because of the reason that the monetary status of all the
citizens are not at par with each other. It can be possible that every citizen cannot afford the same
12 Alexa Delbosc and Graham Currie. "Modelling the causes and impacts of personal safety
perceptions on public transport ridership." Transport Policy, 24, 2012, 302-309.

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and the laws become violated. For the purpose of the maintenance of the laws as per the
provisions of the constitution of Australia, these measures should be undertaken. To add to this, a
imposing of a severe punishment when the people do not produce the same before the police is
constitutionally. In case this was not done, then there would be ample cases of the violation of
the laws of the constitution. Polyukhovich v Commonwealth and R v Sharkey are related case
laws.
Part 4: Parliamentary Identity Card
The fourth part of the act states that no member of the House of the Senator can avail the
transport facilities through the airways, waterways, railways or roadways unless they are under
the possession of their respective parliamentary identity cards. These special identity cards of the
members of the parliament must be issued by the board. Such an identity card would be provided
to these special people only upon proof of the evidences that these people are legitimate and
possess the qualification to be a member of the house of the parliament.
Since the people under the parliament possesses a special responsibility towards the nation to
protect and secure them, under the constitution of Australia, the need for a special identity card is
deemed to be valid as per the constitution. In this way, these people can be given special
recognition13. Theophanous v Herald and Weekly times ltd (1994) 182 CLR at 124 is a relevant
case law for this purpose. The eligibility of these members are deemed to be essential and valid
as per the constitution of Australia. These measures ensure that these members do not abuse their
position.
Part 5: Transport Security Protection Fund
The fifth provision of this act lays stress upon the pecuniary importance. It states that all the
sums accumulated through the fees, damages and compensation under Part (1)(b), must be put
13 Elyes Ben Hamida, Hassan Noura, and Wassim Znaidi. "Security of cooperative intelligent
transport systems: Standards, threats analysis and cryptographic countermeasures." Electronics,
4(3), 2015, 380-423.

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into the Transport Security Protection Fund14. It is upon the board to utilize the sums which has
been collected in the fund for the purposes as mentioned in the act. Some of these purposes
include, the creation of grants to the new suppliers of the transportation security products of
Norfolk Island, Adelaide and Canberra.
Certain areas under this part are not valid as per the constitution of Australia. As stated earlier,
the regulations of the constitution of Australia extend to the whole of Australia. Thus, in this part
the laws should not only be prevalent under Adelaide, Canberra and Norfolk Island but to the
whole of it. Hence, the provisions for the establishment of the funds should extend to the whole
of the dominion of Australia. The maintenance of the fund for the Transport Security is essential
to meet all the needful expenses and meet all the emergencies that arise in the various
situations15. Moreover, apart from the grants, all compensation, fees, damages etc. should be
incorporated in this fund. These alterations would make it constitutionally valid. Strickland v
Rocla Concrete Pipes is the relevant case law.
Conclusion
In the contemporary era, there has been increase in the crimes and bad deeds among the people
in the transport services. There has been a rise in the rates of the terrorist attacks,
mismanagement in the transport facilities, increased carelessness and lack of responsibilities.
The people who come to Australia for spending their holidays become preys to the horrendous
criminal activities and the other misdeeds of the latest era16. There is an urgent need to put
14Bernadette McSherry, and Kay Wilson. "Detention and treatment down under: Human rights
and mental health laws in Australia and New Zealand." Medical law review, 19(4), 2011, 548-
580.
15 Bernadette McSherry and Kay Wilson. "Detention and treatment down under: Human rights
and mental health laws in Australia and New Zealand." Medical law review, 19(4), 2011, 548-
580.
16Elyes BenHamida, Hassan Noura, and Wassim Znaidi. "Security of cooperative intelligent
transport systems: Standards, threats analysis and cryptographic countermeasures." Electronics,
4(3), 2015, 380-423.

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checks and balances in the rules and regulations of the transport system of Australia as soon as
possible. For this sole reason, the Senator MacAdder wanted to initiated a new bill with regard to
the security and the protection of the people under the transport system of Australia. For this
purpose, MacAdder intended to initiate the bill, which contained several provisions with regard
to the transportation security, protection and facilities. She was assured that such a bill would
become an act.
After a close perusal of the facts of the case, the issues involved in the case and the provisions of
law involved in the in above case it can be concluded that the provisions of the Transport
Security Act are partly valid and partly invalid as per the laws of the constitution of Australia.
The opinion of the Attorney General, Jebediah O’ Cafelatte was partly correct and was partially
right in judging the consequences of the transport security act with regard to the meetings
conducted with Senator MacAdder. Thus, in order to be constitutionally valid, the provisions
must be altered as per the needs and requirements of the people and the system working in
Australia.

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Bibliography
Bath, Vivienne. "Foreign investment, the national interest and national security-foreign direct
investment in Australia and China." Sydney L. Rev., 34, 2012, 5.
Boyd, David R. The environmental rights revolution: a global study of constitutions, human
rights, and the environment. London: UBC Press, 2011.
Delbosc, Alexa, and Graham Currie. "Modelling the causes and impacts of personal safety
perceptions on public transport ridership." Transport Policy, 24, 2012, 302-309.
Engels, Benno, and Gang-Jun Liu. "Social exclusion, location and transport disadvantage
amongst non-driving seniors in a Melbourne municipality, Australia." Journal of Transport
Geography, 19(4), 2011, 984-996.
Hamida, Elyes Ben, Hassan Noura, and Wassim Znaidi. "Security of cooperative intelligent
transport systems: Standards, threats analysis and cryptographic countermeasures." Electronics,
4(3), 2015, 380-423.
Koniditsiotis, Chris, Jerker Sjögren, and StenWandel. "HIGH CAPACITY TRANSPORTS
(HCT) IN SWEDEN AND AUSTRALIA–EXPERIENCES AND ROAD MAP TO THE
FUTURE." Proc. 12th International Symposium on Heavy Vehicle Transportation Technology,
Stockholm Sweden, 2012.
Liberman, Jonathan. "Plainly constitutional: the upholding of plain tobacco packaging by the
High Court of Australia." American Journal of Law & Medicine. 39(2-3), 2013, 361-381.
Maddex, Robert L. Constitutions of the World. London: Routledge, 2014.
McSherry, Bernadette, and Kay Wilson. "Detention and treatment down under: Human rights
and mental health laws in Australia and New Zealand." Medical law review, 19(4), 2011, 548-
580.