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Constitutional Law

Problem based scenario Task You are required to consider the below scenario and prepare a LEGAL MEMORANDUM addressed to the NSW Minister for Corrective Services. Your memorandum should comply with the IRAC method and address the following questions: 1. Does the NSW Government have any constitutional basis for challenging the validity of the Correctional Services Bill 2018 (Cth) if enacted in its current form? 2. If you determine that the NSW Government does have a legal basis for challenging the validity of the Bill on what grounds can it do so? 3. If you determine that the NSW Government does not have a legal basis for challenging the validity of the Bill explain why not. 4. Are there any other legal issues that the NSW Government needs to consider before considering commencing action? Note that all persons, facts, campaigns, reports, treaties and legislation are invented for the purposes of this assessment. Context The Dunee Correctional Facility (DCF) is a privately-owned prison located in western NSW. The DCF receives income from two main sources- 1. The NSW State Government; and 2. Income from sale of products manufactured by inmates including demountable buildings and headphones for commercial aircraft. The demountable buildings are currently being sold to the Victorian and Tasmanian governments for use in schools. The airplane headphones are sold to various commercial airlines throughout the world. Recently, there have been negative media reports regarding the standard of care provided to inmates at the DCF following several hunger strikes that culminated in a riot where a number of guards and inmates were injured. Although the States have responsibility for prisons, the Federal Minister for Justice, Janice Jones, announces at a press conference that because the NSW State government was not taking any steps to address this crisis, the Federal government would be investigating the standard of care at the DCF and if necessary, take steps to remedy any determined substandard level of care. In 1998 the Federal Government ratified the International Covenant on Political Rights which provides: Article 1 Any person deprived of their liberty shall be treated with humanity and dignity Minister Jones introduced the Correctional Services Bill 2018 (Cth) to the Federal Parliament with the key provisions as follows: Definitions DCF is the Dunee Correctional Facility that is also a constitutional corporation within the meaning of section 51 (xx) of the Commonwealth Constitution Minister is the Minister for Justice … Section 8 1. The Minister may appoint an independent Complaints Officer to investigate any complaints from an inmate within the DCF; 2. The Complaints Officer will make a recommendation to the Minister as to whether the complaint is substantiated, and the Minister may make orders including but not limited to dismissal of staff, a financial penalty or an appearance before the Correctional Facility Appeals Tribunal; 3. In the event an order of dismissal of staff is made, all staff employed in replacement shall be approved by the Complaints Officer. The NSW Minister for Corrective Services Alfred Sing holds a press conference the day after the Bill is introduced into Federal parliament. Mr Sing is outraged by the Bill as he sees it as an intrusion into the NSW Governments role to regulate corrective services.