Write a discussion about constitutional validity.
ASSESSMENT
QUESTION 1 – 45% (maximum of 3150 words)
You are a solicitor employed at the law firm Criminal Defendant Lawyers (CDL). The following clients
have attended the firm located in Toowoomba seeking assistance with their situation. Use only the
fake legislation provided to you, along with the relevant Acts Interpretation Act legislation, The
Constitution, extrinsic sources such as a dictionary, and statutory interpretation cases, to review
each client’s matter applying your statutory interpretation skills.
Note: Ensure you use the mandatory headings provided on the last page of this assessment
document. Some preliminary areas can be addressed relating to all clients and does not then need
repeating for each client. You will need to apply your analysis to each client and reach a conclusion
in your essay for each client.
FACT SITUATION
The following clients’ facts are provided in brief. You may find you will need further evidence or
questions answered to ensure you can apply your statutory interpretation of the fake Act to their
case. You can note the questions as part of your analysis.
1. Mr Reus
Mr Reus, an Australian citizen, has been travelling extensively overseas for the past three years. He
owns a number of properties in Australia, New Zealand and in Bali. The AFP have issued confiscation
orders against all of his real estate and monies held in bank accounts within Australia. He is quite
upset that the AFP have suggested he has been involved in a major criminal drug dealing
organisation, and the monies used for the purchasing of real estate has been from his alleged
criminal activities. When he purchased the properties, he states that he used a law firm in Brisbane
for all of the matters and deposited cash into the law firm’s trust account for each transaction. From
memory he doesn’t think the law firm reported any cash transfers to AUSTRAC. When prompted for
how he was able to fund his property purchases (which ranged in value from $1million to $6million),
Mr Reus states that he came into some money in business dealings with his mates. He has been
charged by the AFP for money laundering with the criminal matter to still be heard.
Provide Mr Reus advice based upon your analysis of the Act.
2. Miss Lucky
Miss Lucky states that she recently won Lotto in the United States where the lottery authority
transacted $12,000 at a time to either her own bank account, another friend or family member of
her choice. In total there were sixteen transactions made, some on the same day to the same
account with the lottery authority being provided with the bank account details of all people.
The AFP issued confiscation orders of all monies received from the lottery authority. No transactions
have been reported to AUSTRAC despite all monies being transferred to an Australian citizen or
entity. Upon review of the ‘lottery’ you find that it may not have been registered appropriately and
there are questions whether Miss Lucky has received monies in a scheme known as ‘cuckoo
smurfing’. 1 When questioned as to how Miss Lucky won such a lottery, she said that a friend
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purchased the ticket and advised her when she won. The friend has made all of the arrangements
with the lottery for the transactions and some of the monies are going into the friend’s bank
accounts in Australia. Miss Lucky is worried about any involvement she may have with such a
scheme now she has her bank account ceased by the AFP.
Note: ‘A victim who can demonstrate that s/he was ignorant of the deposit pattern may, in an
appropriate case, succeed in an application for exclusion of restrained property.’ 2
Provide Miss Lucky advice based upon your analysis of the Act.
3. Ms Barrister
Ms Barrister has worked in a similar practice of law to your law firm in defending clients who have
been convicted of criminal offences. During a stressful time in her career, she decided to approach
the State Police to give confidential information about her clients to assist them in their prosecution
against her clients. The State Police were highly successful with their cases and continued to work
with Ms Barrister as an informer. Ms Barrister however let it slip to a friend that she has lots of
information that would make a best seller of all of the criminal activities of her clients. The friend
encouraged her to sell her story to a publisher who has agreed to keep her name anonymous. An
Instagram page was setup with brief facts from the cases as marketing for the book to be released
with pre sales in the thousands. The advertising monies from the Instagram page have totalled to
date $1million.
The AFP have tracked down who is the author of the book and have issued a confiscation order to
Ms Barrister on the basis that she has received literary proceeds. This is also an attempt to block the
final publication of the book.
Provide Ms Barrister advice based upon your analysis of the Act.
QUESTION 2 – 5 % (maximum of 350 words)
You are an officer in the Office of Parliamentary Counsel Commonwealth. An amendment is
proposed to clarify the scope of what ‘profits from literary works’ means in the Act.
Detail how the proposed amendment needs to progress through the various stages in the
Commonwealth Parliament. Provide this in proper sentences and not just bullet points explaining
the process starting with the Attorney General reviewing the policy reasons for such amendment.
You do not need to draft the provision, only the process for passage into and through Parliament.
1 For the purpose of the statutory interpretation essay, it is not necessary to understand the concept of
‘cuckoo smurfing’ except that it is a type of money laundering activity. See https://egreaves.com.au/cuckoo-
smurfing/ for a short explanation of it.
2 Noted by Edward Greaves who acted as Counsel in the HC case of Kalimuthu v Commissioner of the Australian
Federal Police [2019] HCA 39 https://egreaves.com.au/lordianto-kalimuthu-high-court/2019/11/
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THE MANDATORY STRUCTURED APPROACH FOR QUESTION 1
PRELIMINARY ANALYSIS OF THE STATUTE
Threshold questions
o Commencement
o Constitutionally valid
o Jurisdiction
Classification of statute
Identification of the operative provisions
Purpose and context of the Act
o Intrinsic analysis
o Extrinsic analysis
APPLYING THE APPROACHES OF STATUTORY INTERPRETATION
Modern approach to statutory interpretation
Analysis of the operative provisions: Intrinsic Aids
Extension of the analysis of the operative provisions: Extrinsic Aids
word limit: 2899