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					    LAWS 2202 COMMONWEALTH CONSTITUTIONAL LAW
                                 Semester 2, 2008
                 Optional Mid-Semester Take-home Exam




                           GENERAL INSTRUCTIONS
This take-home exam will be available on Tuesday, 2 September 2008 (12 noon) and
due on Monday, 8 September 2008 (4 pm). Answers must be submitted to the
Services Office (essay chute). Since this is an optional take-home exam, in
accordance with the College’s assessment policy, answers that are submitted after the
due date and time will not be marked unless an extension has been granted. The exam
covers work from classes 1-14 (ie the material from the beginning of the course up
to, and including, s 109 inconsistency).
The maximum length for this exam is 8 pages, including footnotes if any. Exams
must observe the following formatting requirements:
      double spacing (not single or 1.5 line);
      Times New Roman or Arial font;
      12pt font size;
      page margins of 2.5 cm (not inches) at top and bottom, 3 cm left and right.
These parameters also apply to any footnotes used in the exam.
Please note: exams not conforming to these formatting requirements and the 8-
page limit will not be marked.
The take-home exam will be worth 35% and is redeemable. Redeemability means that
the take-home exam will only count towards a student’s final result if a student’s take-
home exam mark is higher than his or her total mark in the examination (eg, if a
student obtains a take-home exam mark of 65, and an overall final exam mark of 70,
the take-home exam will not be counted and the final exam mark will count for 100%
of the final result; conversely, if a student obtains a take-home exam mark of 70, and
an overall final exam mark of 65, the take-home exam will count for 35% of the final
result and the overall final exam mark will count for 65% of the final result).
Note: the mark for the mid-semester exam will only count towards the final mark in
the course if the mark for the final exam is 40% or more.
Please refer to the LLB Handbook for information concerning special consideration.
Please refer to the means of assessment for other details about the assessment task,
including the criteria that will be used for assessment.
You must reference all authorities and we recommend that you follow the Australian
Guide to Legal Citation in doing so. Since this is a take-home exam, however, it is
acceptable to refer to well-known cases by their shorthand name (eg Engineers’
Case). In addition, pinpoint referencing is only necessary for quotes.
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You must submit your answer with an ANU College of Law coversheet attached
(download from http://law.anu.edu.au/ServicesOffice). Write your student number
on the coversheet but do not write your name on any part of the take-home
answer. Students must keep an electronic copy of their answer.
Penalties for breach of academic honesty will be strictly enforced. Please refer to the
Course Outline and the LLB Handbook 2008 for information concerning academic
honesty.
Although you will have the take-home for seven days it is not our intention that you
devote all that time to preparing your answer. Indeed you should not. Our object is to
give you enough time to complete the exam in conjunction with your other family,
study and work commitments.




                                                                      Heather Roberts
                                                                      Amelia Simpson
                                                                       James Stellios

                                                                    2 September 2008


  THE TAKE-HOME EXAM QUESTION BEGINS ON THE FOLLOWING
                         PAGE
                                            3



               MID-SEMESTER TAKE-HOME EXAM QUESTION

The Commonwealth government has been considering a range of options to address
carbon dioxide emissions from the use of fossil fuels. One proposal being considered
by the Commonwealth would involve:

   (a)       the regulation of persons who engage in certain emissions-intensive
             production processes which generate unacceptably high emission levels;
             and

   (b)       the regulation of persons who trade in the products or services produced
             from emissions-intensive production processes which generate
             unacceptably high emission levels.

A bill has been drafted to give effect to this policy. The Carbon Reductions
(Emissions-Intensive Industries) Bill 2008 (Cth) relevantly provides:

Section 5:        A prescribed person is not to engage in a restricted activity
                  without a licence.

Section 6:        A licence may be granted to a prescribed person by the Minister
                  upon satisfaction of prescribed conditions.

Section 7:        For the purposes of this Act:

                (1)        Constitutional corporation means a corporation to which s
                           51(xx) of the Constitution applies.

                (2)        Prescribed person means:

                       a. A person who exports or sells interstate products or services
                          that have been produced in a way that produces carbon
                          emission levels exceeding prescribed levels.

                       b. A person who produces products or services for export in a
                          way that produces carbon emission levels exceeding
                          prescribed levels.

                       c. A person who sells in the Australian market imported
                          products or services that have been produced in a way that
                          produces carbon emission levels exceeding prescribed
                          levels.

                       d. A constitutional corporation.

                       e. A person who is a contractor of a constitutional corporation.

                (3)        Restricted activity is:

                       a. In relation to a person referred to in s 7(2)(a) – the
                          exportation or sale interstate of those products or services
                          referred to in s 7(2)(a).
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                      b. In relation to a person referred to in s 7(2)(b) – the
                         production for export of the products or services referred to
                         in s 7(2)(b).

                      c. In relation to a person referred to in s 7(2)(c) – the sale of
                         the products or services referred to in s 7(2)(c).

                      d. In relation to a person referred to in s 7(2)(d) – the
                         production of products or services in a way that produces
                         carbon emission levels exceeding prescribed levels, or the
                         sale of products or services that have been produced in a
                         way that produces carbon emission levels exceeding
                         prescribed levels.

                      e. In relation to a person referred to in s 7(2)(e) – the
                         production of products or services in a way that produces
                         carbon emission levels exceeding prescribed levels, or the
                         sale of products or services that have been produced in a
                         way that produces carbon emission levels exceeding
                         prescribed levels.

               (4)        Prescribed conditions are those prescribed by the Minister
                          for the purposes of reducing carbon dioxide emissions from
                          fossil fuels.

               (5)        Prescribed levels are those prescribed by the Minister.

The proposed legislation will have a significant impact on the coal-fired electricity
generation industry. In Western Australia, the Electricity Generation Corporation
(‘the EGC’) has the primary responsibility for the generation and supply of electricity
in that State. The EGC is established as a body corporate by s 4 of the Electricity
Corporation Act 2005 (WA) (‘the State Act’). The EGC is authorised by s 35 of the
State Act to generate and supply electricity. The process used by EGC for generating
electricity may produce carbon emission levels that exceed those levels prescribed by
the Minister under the Commonwealth provisions.

Answer BOTH of the following questions:

   1.      There have been concerns expressed within the Commonwealth
           Department of Climate Change about the constitutional validity of the
           Carbon Reductions (Emissions-Intensive Industries) Bill 2008 (Cth). You
           work for the Australian Government Solicitor. Provide advice on the
           possible constitutional problems with the Bill.

   2.      The Western Australian government is concerned that the Carbon
           Reductions (Emissions-Intensive Industries) Bill 2008 (Cth) has the
           potential to impact on the operations of the ECG. You work for the
           Western Australian State Solicitor’s Office. Provide advice on the
           potential impact of the Commonwealth Bill on the EGC’s operations,
           and on what the Western Australian government might do to put the
           EGC’s activities outside Commonwealth control.

               ____________________________________________

				
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