Corporate Social Responsibility And Communities

LAW 2501 Australian Constitutional Law

Proposed National Security Act 2017 is not valid

Discuss about the Corporate Social Responsibility and Communities.

Part (a) states the imposition of new “Technology Security Fee (TSF)” on the sales of Information Technology products within Australia. The fact is covered within the enumerated powers granted under section 51 of Constitutional law to the Commonwealth Parliament. Considering the legislation of section 51(i) on trade and commerce with other countries as well as among states, it is essential to follow the definition of trade and commerce with respect to the nature of rights, duties, powers and privileges[1].

As per the decision created in case of W & A McArthur Ltd v Queensland, court held that the trade and commerce among different countries would not be limited to the transportation act over the border. Further, court held that the act of trade and commerce would include the financial transactions along with the participation of federal government principles[2]. The act of trade and commerce as per the legislation includes certain prohibition of definite trade that has been considered in the decided case of Murphyores Inc Pty Ltd v Commonwealth. Legislation of section 51(i) includes trade and commerce between interstate as well as intrastate if the act is “inseparably connected”.

In the present case, objective of TSF includes funding the operations and activities of National Security Bureau (NSB), which is not a part of trade and commerce. On the contrary, fact mentioned in part (a) constitutes the primary grant of the constitution power, use of fund for non- trade activity purpose will not be considered as invalid act. In view of the legislation on trade and commerce act, charges and collection of fund does not constitute any interconnection between the trading activities of IT products based on the interstate as well as intrastate transaction. For the purpose of validating a trade activity under the Australian Constitution, it is essential to regulate the transaction within the meaning of trade and commerce[3]. Therefore, part (a) of the proposed bill for the purpose of intrastate trade cannot be called as valid under the constitutional law.

On the other hand, legislation under section 51 (ii) with respect to taxation is valid but invalid as per the regulations under section 55 of the Constitutional Act. The legislation states that the taxation amount refers to the amount collected by public authority as per the requirement of legislations and not the amount collected against the services offered[4]. In the given case, TSF has been collected by the vendors that does not constitute a part of public authorities while the collected amount would be directly paid to the bank account of NSB. According to the legislation of section 51(ii), the collection of charges cannot be said as invalid due to the collecting non- public party. It is important that the charges should be collected for the purpose of public use while the collected party may be non- public authority. 

Proposed National Security Act 2017 is valid

As per the legislation of Constitutional Law in Australia, all the technology businesses in Australia entitles to register and obtain business license for operating the business activities of information technology. Further, exclusive powers of the constitutional parliament proposed laws for appropriating the amount of revenue including the amount of taxation should not be originated from Senate. However, the proposed law should not constitute the amount of revenue collection or tax imposition resulting from the appropriation of licenses fees[5].

On the contrary, as per the constitutional law in Australia, businesses involved in the operations of information technology for creating, repairing or dealing in the process of information technology requires to obtain security license. Further, the business organizations located in New South Wales and Queensland are required to obtain security licenses mandatorily whether the business organization is sole business entity or corporate entity. The constitution of Australia provides the legislation on purchasing the information security licenses for the business organizations engaged in the operating activities of information technology[6]. Moreover, the power of parliament does not provide the authority to terminate the business activity as well as power to forfeit the organizational asset to the National Security Bureau (NSB).

Appropriation of Bills under the constitution of states the acquisition of license for appropriation of money in terms of revenue. Considering the decided case of Entick v Carrington (1765) 19 Howell’s State Trials 1030, court held that purchase of security license for the business entities involved in the Information Technology refers to the purchase of private security. However, business operations in the sector of information technology involve several cyber crime attacks that affect the business functions and therefore it is essential to obtain the security license to protect the IT business. Considering the fact of part (b) failure in purchasing of IT Security License involves termination of business and forfeiture of assets along with no rights of appeal to the court or tribunal. It can be said that each individual or organizations have the right to appeal under Writ Petition if no other option of appeal is available[7]. Therefore, first point of the fact given in part (b) is not valid as per the Australian Constitutional Law.

Requirement on the second point of the given fact part (b) states that the technology business in Australia should provide complete details with respect to full names and personal information. The details would be related to all the employees, corporate officers, partners and shareholders for the purpose of creating a National IT Registry[8]. According to the legislation on Constitution of Australia, this point is valid because it is essential to maintain the records of details of employees and other corporate stakeholders including shareholders. Such information is important to eliminate the probable risks from fraud and error activities that may involve with the cyber crime or other frauds in the information technology business activities.

Section 109 of the Constitutional Law in Australia states the regulations of legislative discrepancy among the laws of federal law as well as state laws. It states that the provisions and regulations of Commonwealth law override the provision of State law in case there is any inconsistency between the two legislations. As per the explanatory memorandum provided by the parliament as per the power under constitutional head, Australian citizenship of the individual would be in consistent with the power provided under the legislation of section 51(xix). Under the Australian constitution, the parliament has been given the power to state the concept of citizenship in Australia as well as control orders to operate the business activities[9].

Moreover, ex parte order refers the proceedings under judiciary that is considered for the benefit of one party only. It is also referred as connection with the individual represented against the attorney for the purpose of significant person named as per the legislative term. In view of the amendment in the legislation of the constitution, it has been stated that the any individual should not be destitute with the requirements of life, property or any source of liberty unless the “due process of law” has been constituted[10].

In the given part of the fact, National Security Bureau proposed to make application for ex parte to the court, which may provide the order against the Australian individuals. Such order would require the person to remain deprived from sources of liberty, remain in home, surrender passport and reporting at the local police station every day. The order would also provide the restriction on the business organizations involved in information technology for a maximum period of 10 years. According to the regulation of section 109, legislation of Commonwealth Act would prevail whereas proceedings under ex parte jurisdiction can be considered for urgent matters where serving notice to one party would place irrevocable harm. Accordingly, NSB can make application as ex parte to the court only of the matter consists of urgent and irrevocable harm to the party. Consequently, the order on the person with respect to remain in home and other restrictions would be valid provided in the Bill.

Moreover, the legislation under Constitutional Law of Australia states that if the ex parte order has been imposed against the defendant, then the person would be entitled to make application to the court that passed the set aside decree under the “order number 9 Rule 13”. The defendant is also entitled to make application for review or revision as per the legislations in terms of “prohibition writ, mandamus or certiorari”[11]. Considering the decided case of Boilermakers’, R v Kirby, the defendant ex party Boilermakers’ Society conducted prohibition writ against the party named, Kirby after the ex parte order had been imposed on the defendant. However, it is essential for the defendant party to maintain the appropriate evidence but representation of lawyer of the proposing party is nor mandatory.

Accordingly, in the present case, fact on considering the challenge or appeal against the ex parte order should not be closed to the public. The appeal can be made with respect to the writ prohibition or mandamus but presentation of appropriate evidence along with the brief of prosecution is mandatory. In Addition, point of part (c) for the purpose of representation of case by the lawyer based on the agreement of National Security Bureau is not mandatory for the purpose of making application against the ex party decree.

According to the legislation under Rule 36.15(1), a judgment by the court can be set aside in terms of appeal made under ex parte, if the court considers that the party to the application would be illegal or against the good faith. Similar to the decided case of Arnold v Forsythe (2012) NSWCA 18, the judgment under the application of ex parte order had been set aside since the party entered in the contract was irregular and conducted the agreement against the constitution’s good faith. Therefore, in the given situation, the given point under the Bill would be valid for setting aside the order because threat of person on Australia’s national security is considered against the good faith of the constitution[12].

Section 51 provides exclusive power to the parliament under Australian Constitutional Law with respect to the pensions and bonuses to the household citizens of Australia. The amount of payment of such bonus payable would be dependent on the purpose of payment of bonus. As per the regulations of Constitution, bonus is mandatorily payable to the employers and taxpayers against the services rendered by them[13]. Further, High court of Australia contended that the amount of bonus payable to the Australian citizens up to the amount of $900.

In the given case of part (d) under the proposed Bill of National Security Bureau, proposed to authorize the Commonwealth Government for the purpose of payment of “National Security Bonuses” amounted to $1,000 to each of the household citizens. The proposal has been constituted to make provision for the Information Technology security measures at their home. In view of the decided case of Langer v The Commonwealth (1996) 186 CLR 302, court held that the defendant party, Langer would be entitled to receive bonus as per the legislations of Australian Constitution up to the amount of $900[14]. Accordingly, in the present case National Security Bureau’s proposed Bill for authorizing the payment of bonus amounted to $1,000 cannot be said to be valid. The purpose of the proposed bonus is to provide security measures against the Information Technology to the household citizens the maximum bonus of which should be $900 as per the legislation and court’s decree. Therefore, NSB’s authorization for payment of bonus can be valid for the amount $900 and not for $1,000. 

Reference List  

Arcioni, E. and Stone, A., The small brown bird: Values and aspirations in the Australian Constitution (2016). International Journal of Constitutional Law, 14(1), pp.60-79.

Australia.Gov.Au (2017) Australia.gov.au <https://www.australia.gov.au/>

Care, E., Scoular, C. and Bui, M., Australia in the Context of the ATC21S Project (2015). In Assessment and Teaching of 21st Century Skills (pp. 183-197). Springer Netherlands.

Cheng, Jianjun and Alan P. Kozikowski, “We Need 2C But Not 2B: Developing Serotonin 2C (5-HT 2C ) Receptor Agonists For The Treatment Of CNS Disorders” (2015) 10 ChemMedChem

Christensen, S., O’Connor, P., Duncan, W.D. and Lark, A., Statutory licences and third party dealings: Property analysis v statutory interpretation (2015). New Zealand Law Review, 2015(4), pp.585-615.

Dixon, R., an Australian (partial) bill of rights (2014). International Journal of Constitutional Law, 14(1), pp.80-98.

Evans, M., Subsidiarity and federalism: a case study of the Australian Constitution and its interpretation (2014). In Global Perspectives on Subsidiarity (pp. 185-205). Springer Netherlands.

Kiefel, S. and Puig, G.V., The Constitutionalisation of Free Trade by the High Court of Australia and the Court of Justice of the European Union1 (2014). Global Journal of Comparative Law, 3(1), pp.34-49.

Mayes, R., A social licence to operate: corporate social responsibility, local communities and the constitution of global production networks (2015). Global Networks, 15(s1), pp.S109-S128.

Posner, E.A., The Court and the World: American Law and the New Global Realities BY STEPHEN BREYER ALFRED A. KNOPF (2015). Yale LJ, 126, pp.504-545.

Saunders, C. and Foster, M., The Australian Federation: A story of the centralization of power (2014). In Federalism and legal unification (pp. 87-102). Springer Netherlands.

Shanahan, M.P. and Round, K., Creating the “secret register”: The background to the register of trade agreements in Australia, 1967–1974 (2014). Entreprises et histoire, (3), pp.72-91.

Stone, A., Constitutional Orthodoxy in the United Kingdom and Australia: The Deepening Divide: Constitutional Review under the UK Human Rights Act by Aileen Kavanagh (2014). Melb. UL Rev., 38, p.836.

Van Gramberg, B., Bamber, G.J., Teicher, J. and Cooper, B., Conflict management in Australia (2014). The Oxford Handbook of Conflict Management in Organizations, pp.425-448.