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The consequences of plagiarism law constitutional administrative essay

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McGuire

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Graham

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Contact Phone 2( 03 ) 93277714Unit Code*LWA221Lecturer name*Simon Lee – Ros VickersUnit Name*Military LawAssignment Title*Essay ExaminationCharles Darwin University is unable to accept and process assignments without a completed assignment cover sheet. CDU Logo

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24 /2/1320/2/13Summer SemesterHave you applied for an extension? No

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I declare that all material in this assessment is my own work except where there is a clear acknowledgement and reference to the work of others. I have read the University’s Academic and Scientific Misconduct Policy and understand its implications.*http://www. cdu. edu. au/governance/documents/3. 3academicandscientificmisconduct. pdfI agree Graham McGuire

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Plagiarism is the presentation of the work of another without acknowledgement. Students may use a limited amount of information and ideas expressed by others but this use must be identified by appropriate referencing. Consequences of Plagiarism is misconduct as defined under the Student Conduct By-Laws. The penalties associated with plagiarism are designed to impose sanctions on offenders that reflect the seriousness of the University’s commitment to academic integrity. Confirmation of receipt will be made via email to your student email account. It is the responsibility of the student to ensure that they manage their CDU student email. More information about your CDU email account can be found at http://www. cdu. edu. au/itms/student/email. html

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1I have completed and submitted the assignment cover sheet. 2My CDU email address is activated. 3I have read and understood the important information on this form. 4I have kept a copy of my assignment. 5I have completed all sections of this cover sheet.

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Once your assignment with a completed cover sheet has been received you will be sent a confirmation email. Your assignment is then sent to the appropriate lecturer. The lecturer will then grade your assignment and will return your assignment to the Flexible Delivery Team (FDT). FDT will then send a confirmation email to you, advising that the graded assignment has been despatched to you. LWA 221 Final EssayQuestion 3IntroductionDefence assistance to the Civic Community you would think would be an easy process but as with most things in law, there are many things to consider such as the Australian Constitution, Australian Legislation, and Australian Defence Forces (ADF). Australian Governments from all political persuasions have used the ADF for other matters other than defence at certain times. They have been used for things such as flood mitigation, during industrial disputes, assisting State police, and festive fly-overs, and on and on. There are limits as to when and where Governments can use the ADF; the Australian Constitution sets limits to its use, where there is no external threat involved, and there are administrative constraints on how legislation may be lay-out. The ADF has its own legislation and guide lines on how it is to operate or provide assistance for civil operations. In the High Court, case Re Tracey: Ex parte Ryan[1]where Justices Brennan and Toohey said ” The most important aspect of the discipline which that law was intended to secure was the control of armed forces to ensure that their existence as a permanent armed body under hierarchical command should not threaten the peace and civil order of the Realm.” When the military is used in the area of civil authority it is a recognised principle in Section 68 of the Australian Constitution where the Governor-General (with guidance by the Government) has the control of the armed forces. Justice Hope said: ” Use of the military other than for external defence, is a critical and controversial issue in the political life of a country and the civil liberties of its citizens. ‘ An armed disciplined body is in its essence dangerous to Liberty: undisciplined, it is ruinous to Society’. Given that there must be a permanent Defence Force, it is their operation comes from that point. Any laws that regulate the ADF activities need to be consistent and comes from that constitutional authority. The maintenance of law and order is critical that it be employed only for proper purposes and that it is subject to proper control.” The community was worried during in the Bowral call-out at the thought of armed troops in the streets. The defence force is mentioned in the Constitution and the authority for their operation. Any laws that regulate the ADF must be in line with that constitutional authority. The Federal system has of law and order where it only operates in its own areas of responsibility, each state or territory is primarily responsible for its own area. The Constitution makes allowance for Commonwealth to assist the States in the area of law and order.[2]The Commonwealth’s Power to callout for Domestic ViolenceThe Commonwealth’s has the power to call out the troops using the executive power (Section 61 of the Constitution) also in Section 68 and the legislative powers contained in 51(xxxix) the external affairs power and Sections 51(vi) and (Section 51 (xxix)) supports anti-terrorist measures of the Constitution. The Governor-General may do all things and matters deemed by him or her to be desirable or necessary for the efficient protection and defence of the Commonwealth or of any other State or Territory. Paragraph 63 (l) (f), together with Sections 124 and 51 of the Act (the regulations that give the power of the Act) providing the legal basis for creating the AMRs dealing with Section 119 the conduct in domestic and violence situations. It is a provision in both the AFRs and AMRs looks to apply, those bits of the situation where the Commonwealth comes between them to protect its own interests. The provisions (AFR 511 and AMR 415) are worth taking note of as they are a legislative concern to Commonwealth’s power to protect its own interests. But, the regulations don’t produce the power of the source. This is provided from the Constitution.[3]Some constitutional lawyers have suggested that in their opinion this comes about from the Bowral call-out and what was done there; it is highly unlikely that Section 119 would ever be used. Professor Blackshield has said: ” Since almost any social controversy can nowadays be injected with ‘national security’ implications, it would seem that a way has been found of circumventing Section 119 and intervening in State affairs whenever the Commonwealth chooses. In the long run, that may be the significant new precedent created at Bowral.”[4]The Commonwealths Power to use Troops as Strike BreakersThe use of ADF in the field of industrial relations, this must have been considered when drafting Section 51 of the Defence Act as this section prohibits the use of Emergency and Reserve Forces in connection with industrial relations. They would not have had to exclude them if it was not of a concern, when it was considered beyond the use of the regular ADF to be used in an industrial dispute. Sir Robert Mark said ” Military aid to the civil power can be an unnecessarily emotive procedure in free societies, especially those in which it has rarely been invoked. Emotion and unease arise almost entirely from two factors. The first is the failure of governments to explain the purpose for which military aid is, or ought to be, acceptable to everyone as representing no threat to civil liberty. The second is the lack of contingency planning which causes military aid to be drawn from sources which even the general public can see are not appropriate.” It was said, that the two causes referred to by Sir Robert Mark are inter-related to an association of a deficiency of unadulterated legislative guidance, a deficiency of the correct legal jurisdiction and the internal secret operating procedure for the ADF. In a free society, there is nothing wrong in using the ADF in dealing with disasters or emergencies such as aircraft crashes, floods, and so on. Most of the public are accepting of their participation in the use of essential services. But the majority of the public consider troops should not be used as strike breakers. There comes a point when legal and political aspects merge into one. Quick and Garran’s analysis would be the Commonwealth interest is to protect, if an industrial law of the Commonwealth had been breached. For example an intervention on the waterfront. The Commonwealth would have an interests relating to legislation that uses the commerce power and overseas trade (Section 51(i)) that would be affected by the industrial situation e. g., customs matters. And on Hope’s analysis the absence of a relevant Commonwealth Legislation this would still not preclude protecting a Commonwealth interest. The Commonwealth would have a legitimate interest in commerce and overseas trade as this is a matter which the Commonwealth is able to use laws of the Section 51(i) of the Constitution. On the basis of this interest of the executive power of the Commonwealth’s (Section 61) would be sufficient to authorise (together with the other Constitutional provisions) action by the Commonwealth. This action could involve the ADF using force legitimately with or without the State Government agreement. Hope had said: the maintenance and execution of the Constitution which Section 61 of the Constitution, this would extend the Executive power all though that interference may still not cause an offence under the law of the Commonwealth; the Governor-General, having the correct advice could take the necessary steps to make sure there is no interference. Especially if a minister has the authority to deploy the resource, (Hope at 152). H. P. Lee[5]said Australia can use troops in industrial relation situations. As this author’s analysis leads to this conclusion of the Commonwealth has the power to protect its own interests, and that power is the main basis for the Commonwealth interfere to protect its own interests. And the executive power would grant the use of troops if there was breach of a Commonwealth law. It was also noted in Davis v. The Commonwealth[6]the executive power extends well beyond the legislative power as set out in Section 51 of the Constitution. The Chief Justice Mason, Justice Gaudron and Justice Deane said:” The scope of the executive power of the Commonwealth has often been discussed but never defined. By Section 61 of the Constitution it extends to the execution and maintenance of the Constitution. In the words of Section 61, the executive power of the Commonwealth extends to the maintenance and execution of this Constitution, and the laws of the Commonwealth.” In Victoria v the Commonwealth[7]using this authority, ” it could be argued the executive power of the Commonwealth could send the troops in as strike-breakers if the consequences of the industrial dispute had touched on the Commonwealth power over, e. g., commerce and overseas trade, the Section 51 power would allow the executive power to operate. In conclusion the Commonwealth can send in the ADF as strike-breakers intervening in the dispute to protect its own interests but should use this option only after exhausting all other options.[8]Deployment of Troops at NurrungarIn October 1989 the Minster for Defence MR Beazley, called in the ADF as a backup for South Australian (SA) police officers who were enforcing the law in regards to demonstrators at Nurrungar Defence Facility. A spokesman for the Minster of Defence said ” There was no precedent in the use of troops against a civilian demonstration. Troops normally only became involved in civilian emergencies at the request of the local authorities under what was known legally, as aid to the civil power.” The SA Premier said” that the Federal Government had not warned him that it was sending troops to defend the base. However, he was not concerned as he believed that the defence of the base was a Federal issue.” The ADF didn’t come in contact with any of the protesters. The protestors were not aware that the troops were already on the base. The troops were armed and ready if they had have been needed to control the protesters, but as it turned out there was no need to rush them to the Nurrungar Defence Facility, they had reports that it was likely that they would have to use force and that the ADF should be prepared for a clash. Four-hundred-and-ninety-two protestors were detained over a five day period. There were forceful clashes with the SA police; the protesters were breaching the security of the base. At times some of the protesters did succeed in breaking through the SA police ranks. There was a discussion between the Government and the ADF as to the legal basis that troops had been moved to Nurrungar. There was some debate as to Sec. 51 of the Defence Act and that the base was a prohibited area, and what orders were given to troops which was to use minimum force. The Governments position on the deployment of troops at Nurrungar a Commonwealth Base was given at a Parliamentary question time the Minister for Defence’s Mr Beazley answer was: ” No specific legislative authority is required for the Government to assign tasks to the Defence Force. This is a normal aspect of the executive power of government. However, it should be borne in mind that, under section 8 of the Defence Act 1903, the Defence Force is subject to the directions of the Minister for Defence.” Then a question was asked about what legislative authority do the ADF personnel require to be deployed at Nurrungar? It was answered with ” Under section 23 of the Defence (Special Undertakings) Act 1952, Defence Force personnel at Nurrungar were lawfully entitled to arrest persons who entered the Nurrungar perimeter area without permission and to hand arrested persons to the Federal or State police. In fact, those powers were not exercised.” And noted under section 82 of the Defence Act 1903, the ADF has always had the power to arrest any persons who trespass on defence installations. The deployment of troops at Nurrungar was one that would fall into the Quick and Garran opinion that the Commonwealth has the right to act to protect its own property and interests. There had been no request from the SA State Government but that none is required. No proclamation by the Governor-General is required either. The Commonwealth acting to protect its own interests was the legal basis this draws mainly on the provisions of Sections 61, 68 and 51(vi) of the Constitution. This might change if the troops in their situation were outside the base. It would then be unclear if the troops were involved in stopping domestic violence or were being called on to enforce defence legislation.[9]ConclusionAt times the ADF needs to assist the Civic Community especially in times of floods and fires, ect. There can be an issue with the Civic Community perception if the ADF is used as a strike breaker or for political motives. The Australian Constitution sets out conditions on when the ADF can be used. But the High Court tends to read the Constitution widely and there usually is a case to be made for protecting its own assets. Under the powers that it already does have especially under its power of overseas trade and commerce. As Professor Blackshield said ” Since almost any social controversy can nowadays be injected with ‘national security’ implications, it would seem that a way has been found of circumventing Section 119 and intervening in State affairs whenever the Commonwealth chooses. In the long run, that may be the significant new precedent created at Bowral.” As to deployment of the ADF at Nurrungar there is no doubt that this incident was a one that could have been worse with Four-hundred-and-ninety-two protestors who were detained. The Minister of Defence was correct to rush the ADF as back up for the SA police as this is a top secret base that Australia shares with the USA, this could have been a lot bigger international incident than it was. This incident shows the need for the Commonwealth to have these powers but there is a need to be very cautious about using them.

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