06 Constitutional Law Assignment: Government Security Act Analysis

This report provides a detailed analysis of the proposed Government Security Act, examining its various components and their implications under Australian Constitutional Law. The report begins by outlining the context of the Act, including the powers it grants to the government and the legal systems it interacts with. It then delves into specific aspects of the Act, such as the proposed DNA and fingerprint testing for citizens and non-citizens, the introduction of an Australian identity card, and the imposition of a security fee on social media businesses. The report also addresses the Act's impact on voting rights, conscription, and internet service, as well as its implications for government suppliers. Furthermore, it references key legal precedents, such as Farey v Burvett and the Australian Communist Party case, to provide a comprehensive understanding of the Act's constitutionality and potential challenges. The report concludes with a critical assessment of the Act's various provisions and their alignment with existing constitutional principles.

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06 CONSTITUTIONAL LAW
The proposed Government Security Act is also known as The National Security Act 1939 which
gave the Australian government new powers at the time of war. The government uses such
powers in order to make laws and regulations. The government generally enforces the law which
is set forth in defining a document by the government associated with the constitution. There are
different legal systems, a statue which is declared unconstitutional by different courts. These are
also being done by some of the special courts of the constitution that are liable to authority. They
generally have authority over the validity of the statue. The act generally made the Australian
Government to enable the process of invoking the clauses that are compulsory in nature. This
deals with the Defense Act and also controls the overall areas that are associated with the
controlling of the existing Constitution1.
The proposed activity that is submitted by the Senator Tronk generally is set down so that the
Act secures the Government of Australia as well as provides proper protection to the citizen of
Australia. This is because there are different illegal activities that can happen and can insecure a
citizen’s as well as the government rights to secure Australia. It generally confers with a proper
set of citizenship rule. There is a fingerprint test, DNA Test which is tested for the Australian
citizen's only. On the other hand in case of non-citizenship, the Federal Court generally offers
detention on the pending deportation. There are other security configurations that are associated
with it. In the meantime, there was a mishap that took place, that is an early voting location in
Melbourne is bombed2.
As a constitutional lawyer in Sydney, there are different approaches that are to be kept in mind,
in order to understand and identify the facts that are associated with the Government Security Act
proposed by Senator Tronk. He is the newly appointed government security minister of
Australia. The acts within it engulf with power on the minister for Government Security to deem
any single individual on the basis of some valid grounds, which can act as a threat to the national
security. On such aspects, the minister Senator Tronk has taken out two approaches, one for the
1 L. Zucca, "Why (Constitutional) Law Matters: A Debate" (2015) 13(1) International Journal of
Constitutional Law.
2 O'Donnell E., "SEC Issues New Breach Guidelines" (2018) 2018(3) Computer Fraud &
Security.
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Australian citizens and the other for the non-citizen of Australia. These identification tests will
allow a general proof that the citizen is Australian or outside Australian resident. This is because
such records of identity will be stored in the new Government Security Archive. There is a
proper validity of fingerprint and the DNA test because previously there was a registration
certificate that was issued by the Government of Australia to a person, who was born outside of
Australia. In that case at least one of the parents was of Australian citizenship. There were
assigned dates on the certificates which was acquired by the descent. Nowadays, there are
frequent problems arising within the country itself, these are like terrorism, sudden attacks,
bombing and so on. Therefore, to restrict such violence within the country, DNA and fingerprint
are proposed by Senator Tronk, so that there is a proper paternity testing of children or adults
done. The testing is generally performed by the collection of buccal cells that are mainly found
inside the cheek of a single individual. Therefore it can be said that DNA testing is a strong
identification proof in order to understand the parenting of any individual3.
The incident that took place in Melbourne is a strong example of danger with many feared dead
and many more wounded, and a terrorist group claiming responsibility. Therefore if the records
are available in the hands of GDS, then the government can easily identify that the attacks are
performed by people within Australia or outside Australia. This can be done as the Government
security department will keep both the evidence of the citizen as well as non-citizen of Australia.
The Family Law Act 1975 is the law that governs with the DNA paternity testing in Australia4.
So, in the new proposed bill of Government Security Act, the DNA and fingerprinting will not
act as an abnormal issue for further security checking. The proposal must be justified, to a
Privacy Impact Assessment (PIA), which includes a specific consultation with the affected
people, representatives and advocates. There must be an inclusion of appropriate safeguards so
that no illegal activities can take place further. In such an area, this will be essential to review the
3 Neetu K, "Women’S Status And Legal Rights In Australian Constitution" (2018)
27(2) Contemporary Social Sciences.
4 Paul F Scott, "Hybrid Institutions In The National Security Constitution: The Case Of
The Commissioners" [2019] Legal Studies.
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existing applications associated with biometrics, in order to ensure that they also measure up
against the specific standards5.
Part 2 of the proposed act reveals about the identity card that an Australian citizen above 18
years of age should possess. The particular citizen should enroll names in voting, must be
registered for the conscription purposes and also carry identity card every time. The acts suggest
in keeping the identity card twenty-four hours with the entity so that there are no issues that arise
with the identification of the particular citizenship. In such aspect, it can be said that every
citizen of Australia who is above 18 years of age should have identification card so that their
names get enrolled in the electoral panel and they are legally authorized for the purpose of the
vote. The Right to Vote Act 1861 complies with the rights of an Australian citizen, to vote for
the right leader. Therefore there should be a mandate voting card for all the eligible voters and
the election process should be corruption free, so as to make Australia, a violence-free country..
It is not within the powers of the constitution with respect to Executive, to make a proper
determination about the overall conduct and imposing of a penalty for the commission of that
specific conduct. This is generally considered as ‘an essential weakness’ of the proposed section
of 33AA. This is because a court would be unlikely to treat with a proper reference to the basic
provisions of the Criminal Code, when the fact is associated in conducting itself amounts to an
offence under the specific Code. So penalty money is not at all validating under such
circumstances.
The biometric system will provide a chance to ensure the original parental information of the
particular individual or group. Therefore, Senator Tronk has become impatient to validate the
law and implement it under the Australian legislation6.
Part 3 of the proposed act suggests in the promotion of voting rights as well as Australian Card
for every single citizenship of Australia. It also promotes with the registration for the
conscription. It also includes in the deposition of the payment regarding the annual Government
5 Ian Cram, "Amending The Constitution" (2016) 36(1) Legal Studies.
6 Steve Mansfield-Devine, "Your Life In Your Hands: The Security Issues With Healthcare
Apps" (2016) 2016(4) Network Security.
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Security Fee of $100,000 (“Fee”) which is to be paid by the social media businesses working
from Sydney, Brisbane, Darwin, and Melbourne. Lastly, part 3 confers its power on the banning
of internet service as it often circulates violence against elections as well as undermine
Australian National Security7.
The Australian Card will be the most important asset for the Australian citizen; this is because it
will act as a proof and identification of Australian citizenship. Conscription in Australia is
generally termed as the national service provided by the military person. Now the conscription
has generally constricted around during the times of war. Previously there were issues that came
up with the need of registering in Conscription. The Conscription generally ended in the year of
December 1972. This situation arose and the seven men of Australia were freed in mid-to-late
December 1972. Therefore, according to validity, it can be said that Conscription registration
cannot be forcefully pressurized to each and every citizen of Australia8.
The Explanatory Memorandum which states that ‘the principal source of power for a person’s
Australian citizenship ceasing is the aliens power in section 51(xix) of the Constitution’. In
that aspect, the Bill who relies on the concept that ‘alien’ is ‘a person that is lacking allegiance to
Australia’. There is no High Court case, which took place that is necessary for the Court to
decide the overall constitutional meaning of ‘alienage’, to determine the basic ‘outer limits’ of
the Parliament’s power under section 51(xix). Therefore it can be said that the parliament has
the power to express the citizenship with a valid constitutional forms with respect to Australian
Card.
There are different problems that an individual can have which is related to physical inability.
Therefore, it should be made a choice for the Australian individual, that they want to get
registered under the Conscription training or not. The Security Fee which has been proposed in
the act should be kept the same to make the social media businesses working from Sydney,
Brisbane, Darwin, and Melbourne aware of their activities. Internet banning also contains
7 Law D.S, "Biometrics: Security Issues And Countermeasures" (2015) 4(12) International
Journal of Science and Research (IJSR).
8 Alexi J., "Asus Issues Malicious Updates" (2019) 2019(4) Network Security.
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validity because undermining Australian National Security is considered as a criminal offense.
This is because it can influence a mass people against the current legislation of Australia9.
Farey v Burvett [1916] HCA
Farey v Burvett, is the early High Court of Australia case, which is concerning to the extent of
the defense power of the Commonwealth. The majority of the Australian Court took an
expansive view that the defense power at the time of war, holding extended to fixing the overall
price for bread. This is the defense case of Australian High Court that dignifies the Australian
matter of parliament.
In part 4 of the proposed act, it comprises that all the suppliers that are supplying goods and
services to the Australian Government should be registered as suppliers under the specific Act.
This will be done by the purchasing of Government Security Licence from the recognized Board
by 1st April 2020. The suppliers generally need to apply for compliance to label the product and
they are also a specific need of registering under the national database as a part of the responsible
supplier. The registration is maintained by the ACMA, Australia itself, therefore this new
proposed law will just act as an extra wing to the supplier registration and buying of a license
under the government. This will also have an extra amount of security to the Australian
Government as a whole10. This is because there are many illegal activities performed with the
supplying of goods, but the registered suppliers will need to think twice about performing any
illegal activities11.
The part 5 of the proposed act, which generally complies with the fees and the charges that are
to be collected on pursuant to Part (3)(c) and Part 4 are to be paid into the GSD Fund. This is
9 Glenn Patmore, "Altering The Australian Constitution" [2016] SSRN Electronic Journal.
10 Susann Liebich, "The Colonial Journals And The Emergence Of Australian Literary Culture"
(2015) 46(2) Australian Historical Studies.
11 Elizabeth Grosz, "Irigaray, The Untimely, And The Constitution Of An Onto-Ethics" (2017)
43(1) Australian Feminist Law Journal.
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because the board can use such funds to make special grants to agile as well as disruptive
security entrepreneurs, which are to be done in the area of Adelaide, Norfolk Island, Hobart, and
Perth. It can be said that the funding system should be kept in a limited amount so that it does not
make any pressure or burden on the common people. On the other hand, a proper amount of
money is required by the GSD, in order to monitor the overall security issues of Australia.
Therefore the need for money should be summarized and levied minimum on the pursuant to
Part (3) (c) and Part 4 so that there is no extra burden on the common population12.
Australian Communist Party v Commonwealth
The Communist Party Dissolution Bill was introduced into the House of Representatives by
Prime Minister Menzies on 27 April 1950. The Bill’s operative provisions generally fell into
three categories. The Australian Communist Party was generally declared an unlawful
association and was abolished. The property was to be taken away without compensation. There
were limited safeguards against the “affiliated organizations [of the Communist Party]”, as
unlawful declarations that an organisation was affiliated with. The Constitution generally does
not allow any kinds of judicature to the conceding of the principle which the Parliament can
conclusively make a “recite itself” into the power.
According to Attorney-General, Ms. Nikita Gunn-Runner QC MP, the proposed law can be
tyrannical in nature because the election is impending. Therefore no constitutional head will try
to make any forceful acts that can harass the population before the election. The head of the
constitution can have the motivation to cancel the bill before the election. But Australia has now
become a more sensitive area, because of the recent bombing that took place in Melbourne.
Therefore on such ground, Australia should modify the national security for the government as
well as the population of Australia in order to save from further terrorism or violence. On such
an aspect, it can be said that the rules that are imposed within the law are strict, but not unethical
in nature. This is because there are different acts and laws mentioned above which were already
initiated in Australia. These are like the Family Law Act 1975, The Right to Vote Act 1861,
12 Mehrdad Payandeh, "The OMT Judgment Of The German Federal Constitutional Court"
(2017) 13(2) European Constitutional Law Review.
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and registration of suppliers by the ACMA13. The security law that has been proposed by the
newly appointed security minister of Australia, added wings and modified it. Therefore, to
achieve proper stability, there is a need for taking an effective decision regarding the security
system of Australia14.
It can be said that the security of Australia should be tightened enough so that such frequent
terrorist attack, cannot take place. It is the government that needs to take initiative in legalizing
the act irrespective of the election that is going on currently. This is because the proposed act
made by the newly appointed security minister does not aim at the small demands of the
government. The election will come and go, but the security of Australia needs to be tightened so
that such terrorism and consequence cannot harm the common people of Australia. There are
some modifications needed on the proposed bill by Senator Tronk.
13 Philippe Gérard and Willem Verrijdt, "Belgian Constitutional Court Adopts National Identity
Discourse" (2017) 13(1) European Constitutional Law Review.
14 Terry D Clark, Beyond Post-Communist Studies (Taylor and Francis, 2016).
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Bibliography
Clark, Terry D, Beyond Post-Communist Studies (Taylor and Francis, 2016)
Cram, Ian, "Amending The Constitution" (2016) 36(1) Legal Studies
D.S, Law, "Biometrics: Security Issues And Countermeasures" (2015) 4(12) International
Journal of Science and Research (IJSR)
E., O'Donnell, "SEC Issues New Breach Guidelines" (2018) 2018(3) Computer Fraud &
Security
Gérard, Philippe and Willem Verrijdt, "Belgian Constitutional Court Adopts National Identity
Discourse" (2017) 13(1) European Constitutional Law Review
Grosz, Elizabeth, "Irigaray, The Untimely, And The Constitution Of An Onto-Ethics" (2017)
43(1) Australian Feminist Law Journal
J., Alexi, "Asus Issues Malicious Updates" (2019) 2019(4) Network Security
K, Neetu, "Women’S Status And Legal Rights In Indian Constitution" (2018)
27(2) Contemporary Social Sciences
Liebich, Susann, "The Colonial Journals And The Emergence Of Australian Literary Culture"
(2015) 46(2) Australian Historical Studies
Mansfield-Devine, Steve, "Your Life In Your Hands: The Security Issues With Healthcare
Apps" (2016) 2016(4) Network Security
Patmore, Glenn, "Altering The Australian Constitution" [2016] SSRN Electronic Journal
Payandeh, Mehrdad, "The OMT Judgment Of The German Federal Constitutional Court" (2017)
13(2) European Constitutional Law Review
Scott, Paul F, "Hybrid Institutions In The National Security Constitution: The Case Of The
Commissioners" [2019] Legal Studies
9

06 CONSTITUTIONAL LAW
Zucca, L., "Why (Constitutional) Law Matters: A Debate" (2015) 13(1) International Journal of
Constitutional Law
10