UNSW LAW

PRINCIPLES OF PUBLIC LAW

Mid-Session Take-home Assignment

Semester One 2017

Weight: 30%
Due: Wednesday 12 April 2017 by 4.00pm

The following instructions supplant the Faculty’s general policy on these issues:

Limits and citation:

The page limit for the mid-session assignment is 5 pages. All papers should:
• be typed using the Times New Roman 12pt font;
• be double spaced throughout; and
• have a 3cm margin on all sides.
Do not attempt to circumvent these requirements by using a different font or font
size or by altering the spacing and margins – such variations are easy to spot. Papers
that depart from these requirements will be reformatted, and only the first five
pages of the paper will be read.
In order that well-referenced papers are not disadvantaged by the page limits, the
paper is to be referenced by means of endnotes rather than footnotes. These
endnotes are not counted in the page limit. Endnotes are for referencing, not the
making of substantive points.
Incomplete or inaccurate referencing will attract a penalty. Students should follow
the advice on referencing found in the Australian Guide to Legal Citation (3rd ed) that
can be found at www.law.unimelb.edu.au/mulr/aglc.

Procedures for submission of assignments

Hard copy (this is mandatory unless your teacher has indicated that hard copy
submission is not required): Assignments are to be submitted via the Assignment Box
located at the Student Services Office, Level 2, Law Building before 4pm on
Wednesday 12 April 2017. The Assignment Box is cleared daily at 9 am and 4 pm.
After 4pm the work will be cleared and date stamped by administrative staff on the
following working day. You must complete and sign a cover sheet when submitting
assignments. The Assignment Cover Sheet is available at
http://www.law.unsw.edu.au/current-students/my-academic-life/policies-
procedures-and-student-forms.

Electronic copy: Students must also upload their paper on Moodle in Word format so
that these may be processed using the Turnitin software which picks up excessive
similarity between papers and acts as a check on student plagiarism. Papers must be
loaded on to Moodle no later than 6.00pm on Wednesday 12 April 2017. For more
information on uploading your paper via Moodle using Turnitin, see
http://teaching.unsw.edu.au/moodle-students-turnitin. Please also keep a hard copy
of your assignment.

Late Work
Penalties will apply for any work submitted after the due date and time unless you
have obtained an extension prior to the date for submission. A penalty of 5% of the
mark awarded will be deducted for every day (or part thereof) of lateness, up to a
maximum of 50% penalty. No work will be accepted once papers have been returned
to other students.
Please note that a two week period has been provided to complete this assignment.
However, it is not expected that students will need to spend more than two to three
days on this task. Two weeks has been set so students can manage their time
effectively in determining what days they have best available to complete this task.
This means that an extension can only be granted where a student can demonstrate
that they were unavailable to work on this assignment for 12 or more days of the
available period.

ALL STUDENTS MUST ANSWER THE FOLLOWING QUESTION

Laura is a student at the University of New South Wales who would like to see more
young people elected to the federal Parliament. She was disappointed to learn that
only one member of the current Parliament is under the age of 30. Laura decides to
set up a new party - the Australian Youth Party - with the goal of running Senate
candidates in all states at the next election. She needs to sign up at least 500
members to register her party with the Australian Electoral Commission.
At the beginning of the year, Laura holds a meeting on campus with the goal of
recruiting like-minded people to her cause and encouraging them to sign up as party
members. At the first meeting, Laura signs up 30 members. She is especially
impressed with an attendee named Stephen. He is enthusiastic and volunteers to
help Laura recruit members and draft a party constitution. Later, Laura looks
Stephen up on Google and learns that, as a teenager, he served a 15-month prison
sentence for indictable drug offences. She considers asking him about it, but decides
against it as the conviction was many years ago and does not seem relevant.
Over the next three months, Laura continues to work towards recruiting new party
members. She holds two more meetings on campus but mostly communicates with
members through a special Facebook group that she has set up. Stephen continues
to be active, and Laura sends him Facebook messages or emails at least once a week
about the party constitution and recruitment efforts.
Laura is preparing to submit the paperwork to register her new political party when
a friend tells her to be careful about how much contact she has with Stephen. The
friend tells her that she may be in breach of criminal association laws. Laura does
some research and learns of the following NSW law.
Criminal Association Act 2009 (NSW)
3 Object
The object of this Act is to promote public safety and public order.
4 Definitions
…
"convicted offender" means a person who has been convicted of an indictable offence
(disregarding any offence under section 9).
…
9 Criminal association
(1) A person who associates, on not less than 6 occasions during a period of 12 months, with
a convicted offender is guilty of an offence.
Maximum penalty: Imprisonment for 3 years.
(2) A person does not commit an offence against subsection (1) unless, on each occasion on
which it is alleged that the person associated with another, the person knew that the other
was a convicted offender.
(3) A person who:
(a) has a criminal conviction (against the law of this State or another jurisdiction);
and
(b) associates, on not less than 6 occasions during a period of 12 months, with
another person who has such a criminal conviction,
is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(4) A person does not commit an offence against subsection (3) unless, on each occasion on
which it is alleged that the person associated with another, the person knew that the other
had the relevant criminal conviction.
(5) A person may be guilty of an offence against subsection (1) or (3) in respect of
associations with the same person or with different people.
(6) The following forms of associations will be disregarded for the purposes of this section
unless the prosecution proves that the association was not reasonable in the circumstances:
(a) associations between close family members;
(b) associations occurring in the course of a lawful occupation, business or
profession;
(c) associations occurring in the course of training or education;
(d) associations occurring at a rehabilitation, counselling or therapy session of a
prescribed kind;
(e) associations occurring in lawful custody or in the course of complying with a
court order;
(f) associations occurring in the course of the provision of legal advice.

Laura learns that the Minister for Justice, when introducing the law into Parliament,
said the following in her Second Reading Speech:
 This law will modernise law enforcement in this State. It will provide police
with the support they need to respond to the modern methods of criminal
organisations… Critics have said that the criminal association provisions will
undermine civil liberties. This is incorrect. This government is not interested
in criminalising everyday interactions between citizens. It is interested in
preventing serious crime. This is reflected in the way that this new law
targets behaviour that forms or reinforces criminal ties, or that otherwise
strengthens the associations that allow organised crime to thrive.
Laura discovers that a similar law about criminal association exists in South Australia.
Under South Australian law, it is an offence to associate with a member of a declared
organisation (such as a motorcycle gang) or with a person who is subject to a control
order. The relevant Act provides that ‘a person may "associate" with another person
by any means including communicating with that person by letter, telephone or
facsimile or by email or other electronic means’.
Laura is confident that she has not committed an offence, as she has only met
Stephen in person on the one occasion. Also, Stephen’s conviction was many years
ago, and they have never discussed anything criminal in nature.

Question:
(a) Advise Laura on whether section 9(1) applies to her conduct. You must focus only
on matters of statutory interpretation studied in this course. (Reference to
dictionaries is permitted.) Do not discuss the principle of legality, as this is the
focus of (b). (15 marks)

(b) Advise Laura on whether the principle of legality applies to section 9(1), such that
it might be read in a way that does not apply to her conduct. (5 marks)

(c) James Spigelman, former Chief Justice of the NSW Supreme Court, has said:
‘The task of the courts is to interpret the words used by Parliament. It is not
to divine the intent of the Parliament. The courts must determine what
Parliament meant by the words it used. The courts do not determine what
Parliament intended to say.’
Interpreting a statutory provision involves making a variety of choices about the
appropriate use of text, context, purpose and extrinsic materials, and how best
to apply interpretive principles. Thinking about the choices you have made in
interpreting section 9(1) and responding to (a) and (b), reflect on the extent to
which your approach is consistent with Spigelman’s view about the appropriate
role of the courts in statutory interpretation. (10 marks)
Note: In your responses to (a), (b) and (c), refer only to materials that form part of
the readings for this course. Do not do additional research – this is not a research-
based assessment task. Do not deal with issues not studied in this course, including
express or implied constitutional guarantees such as the implied freedom of political
communication.