CONSTITUTIONAL LAW MOOT Moot Problem

Transcription

1 SIR HARRY GIBBS CONSTITUTIONAL LAW MOOT 2018 Moot Problem Melbourne Law School would like to thank Dr Stephen Donaghue QC, the solicitorgeneral of the Commonwealth, for gratefully writing the 2018 Moot problem.

2 IN THE HIGH COURT OF AUSTRALIA MELBOURNE REGISTRY No M100 of 2018 BETWEEN: AND WILFRED Plaintiff THE COMMONWEALTH OF AUSTRALIA Defendant SPECIAL CASE 1. In March 2018, rumours began circulating in the Australian media of a report by the Australian Security Intelligence Organisation citing the growing threat to Australian democracy posed by Russian agents in Australia publishing and promoting the circulation of fake news aimed at creating divisions in Australian society. 2. In April 2018, the Government introduced, and after an urgent late night sitting the Commonwealth Parliament passed, the Fake News (Protecting the Truth) Act 2018 (Cth) (Fake News Act), which commenced immediately. In the Second Reading Speech to the Bill that became the Fake News Act, the Prime Minister relevantly said: Anyone who has glanced at the international media over the course of this year will see that Russia has been wreaking havoc across the democratic world. There are credible reports that Russia actively undermined the integrity of the Brexit referendum, last year's presidential elections in France and the 2016 presidential election in the United States. There are also other nations reportedly conducting interference operations outside their borders, including Iran and North Korea. In some cases, authoritarian states have been literally manufacturing public opinion in order to hijack political discourse and tilt the decision-making landscape in Western democracies to their advantage. These are their aims but it is up to us to determine whether they are successful. And now these methodologies have been turbocharged by cyber. The very technology that was designed to bring us together, the internet, is being used as an instrument of division. Russian agents seeking to sow discord in the United States reached 126 million users on Facebook, 1

3 published more than 131,000 messages on Twitter and uploaded over 1,000 videos to YouTube, according to the belated admissions from those platforms. We are witnessing the mass production, the democratisation if you like, of disinformation. With a general election and a half Senate election due to be called next year, we must act now to ensure Australian democracy is resilient to such threats, from any country, now and in the future. 3. The Fake News Act relevantly provides as follows: 1 Object The object of this Act is to protect voters from being deceived or misled by fake news and thereby to protect the integrity of, and maintain public confidence in, Australia s representative democracy. 3 Interpretation In this Act: election period means a period commencing with the issue of a writ for an election pursuant to ss 12, 32 or 33 of the Constitution and ending with the return of that writ under Part XIX of the Commonwealth Electoral Act 1918 (Cth). social media platform includes, without limitation, FaceBook, Twitter and YouTube. 5 Offence (1) A person commits an offence if: (a) the person publishes a statement on a social media platform during an election period; (b) the person knows that the statement is false or misleading, or fails to take reasonable care to ensure that the statement is not false or misleading; and (c) the statement is a political statement. Penalty: $5,000. (2) Subsection (1) does not apply if the statement is not false or misleading in a material particular. Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code (Cth). 2

4 (3) For the purposes of subsection (1), a political statement is any statement except a statement that is solely concerned with a person s own social or family activities, or with fashion, music, cats or food. (4) The offence against subsection (1) is a summary offence. 10 Jurisdiction The Truth Court of any State shall be invested with jurisdiction with respect to the trial of and conviction for an offence against section 5(1). 4. The Truth Court of Victoria is established under the Truth Court Act 2018 (Vic) (Truth Court Act), which was enacted by the Victorian Parliament and commenced a day before the Fake News Act. The Truth Court Act relevantly provides: 1 Establishment of the Court There is hereby established a court of record to be known as the Truth Court of Victoria. 2 Composition of the Court The Court is to consist of: (a) the President; and (b) at least three judicial fact-checkers. 3 Appointment and qualification (1) The Governor may, by commission under the public seal of the State, appoint any qualified person to be the President or a judicial fact-checker. (2) A person is qualified to be the President only if the person is a judge of the Supreme Court. (3) A person is qualified for appointment as a judicial fact-checker if the person is enrolled as a legal practitioner (however described) of the High Court of Australia or the Supreme Court of a State or Territory and has been so enrolled for at least 5 years. 4 Term of appointment (1) The President and any judicial fact-checkers hold office for a period of 3 years from the date of appointment, and are eligible for re-appointment. (2) The Governor may remove the President or a judicial fact-checkers from office as a member of the Truth Court for incapacity, incompetence or misbehaviour. (3) The remuneration of the President and any judicial fact-checkers must be set by the Governor at the time of appointment, and must not be reduced during any term of appointment. 3

5 5 Jurisdiction The Court shall have such jurisdiction as is conferred on it by this or any other Act. 6 Constitution of the Court In exercising its jurisdiction, the Court may be constituted either by the President or by a judicial fact-checker. 5. In addition to the jurisdiction invested in it by s 10 of the Fake News Act, the Truth Court of Victoria is invested with the jurisdiction previously exercised by Victorian courts with respect to defamation, perjury, and misleading or deceptive conduct in trade or commerce. 6. In late 2017, Wilfred, a Victorian retiree who was sick and tired of politicians being unable or unwilling to comply with s 44 of the Commonwealth Constitution, founded a group with his neighbours known as Australians for Undivided Allegiance (AUA). The aims of the group were to promote compliance with s 44 and to campaign against any referendum that might be called to amend or repeal that provision. 7. On 11 May 2018, following yet another disqualification of a politician under s 44, the Speaker of the House of Representatives issued a writ for the election of a Member for the electoral division of New Scotland, with polling to take place on 22 June The following day, Mr Filip Alfred Isaacs (Filip), the great grandson of Sir Isaac Isaacs, announced his intention to nominate as a candidate for the by-election. 8. Based on historical research, Wilfred was convinced that Sir Isaac Isaacs, whose father had been born in Russian Poland, was a citizen of Russia at the time of nominating for, and sitting as, a Member of Parliament. He did not know whether Filip had inherited Russian citizenship from his great grandfather. He tried to find this out using Google, but Russian citizenship laws are all written in Russian, and Wilfred does not speak Russian. Nevertheless, Wilfred suspected Filip might be Russian, and he had had enough of disqualifications under s 44(i) of the Constitution. 9. On 23 May 2018, Wilfred posted the following on AUA s newly-created Facebook page: EXCLUSIVE NEWS SCOOP!!! Russian embassy confirms Filip Isaacs is a Russian citizen and therefore ineligible to stand for election on 22 June

6 10. Neither Wilfred, nor any other member of the AUA, had any contact with the Russian embassy before that Facebook post was made. Nor had the Russian embassy made any public statement about Filip s citizenship. 11. Filip may or may not be a Russian citizen, depending on the exact location in Poland where his great, great grandfather was born. There is no record of that information. 12. On 1 July 2018, an officer of the Australian Federal Police commenced a prosecution against Wilfred in the Truth Court of Victoria for an offence under s 5 of the Fake News Act. 13. In August 2018, Wilfred commenced proceedings against the Commonwealth in the High Court of Australia, pursuant to s 76(i) of the Constitution, seeking a declaration that ss 5 and 10 of the Fake News Act are invalid. The following questions have been reserved for the consideration of the Full Court: 1. Is s 5 of the Fake News Act invalid on the ground that it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution? 2. Is s 10 of the Fake News Act invalid on the ground that it is not supported by s 77(iii) of the Constitution as it purports to confer federal jurisdiction on a body other than a court of a State? *** NOTES 1. For the purpose of Question 1, assume that neither the common law, nor any other Commonwealth or State law, imposes any relevant burden on political communication. 5