5th September 2016

R Smith
Qwerty Barrister

As requested I will in this letter of advice look at the two separate acts of both
the commonwealth and state governments acts and give advice to the best of
my legal knowledge on the two separate acts, on if they are constitutionally
valid. I would like to take this time to provide you with the information that every
constitutional matter is based off case by case bases and decisions of the court
can and will vary from case to case.

New South Wales State act, Consequences for Cover Ups Act 2016
ISSUES:
1: Validity of the law
2: Validity of S4 (b) separation of powers
3: Validity of S5 (a) separation of powers
Isssue 1:
To determine if this law is constitutional we must first look at if this law is
valid, in making this determination we must look at S 5 of the Constitution
Act 1902 (NSW) which Allows a state to make laws which are for the Peace,
welfare and good government of that state. The courts have looked at if the
words Peace, welfare and good government of the state be construed as
words of limitation meaning that if a law is created which is not for the above
words, is that law invalid? This was demonstrated in the case of the Union
Steamship Co of Australia PTY LTD v King 1888 (HCA) the court found that
the use of such words is not one of limitation and that if such words would be
used as limitations, the terms of welfare and order would hold much different
limitations and would not be used interchangeably, further more in the case
of Durham Holdings Pty Ltd v NSW, the judges do not dismiss the idea that
deep rooted common rights are to be completely dismiss however in a case
by case bases the determination would be made, as this does not effect this
particular law it is not valid therefore the creation of the law thus far is valid
within the constitution.
Issue: 2 Separation of powers
We must now look at if we have a constitutional separation of state power,
two times this question has been asked to be answer by the court, and the
answer has been no, we do not have a clear separation of power as a result
of the Constitution act 1902 NSW, As seen in Clyne V East (1967) & in
Building Construction Employees and Builder's Labourers Federation of NSW
v Minister for Industrial Relations(1986) however in more recent case as seen
in Duncen V NSW (2015) the case was made that the commonwealth
constitution under chapter III required that the states have a separation of
powers, however the high court, the point was not addressed as the
government did not try use judicial power. Their for the question was not
answered. However in this case, the argument could be made as such that
the NSW government will be using judicial power it may be a question that
the court may address to answer if this Act is constitutional. In Kable V DPP
(1996) (NSW), the court needs to uphold the institutional integrity of the state
court, as this act will provide the NSW supreme court power to make financial
orders in which an institution, organisation or association member with
authority as defined in S 7(c) of this act which would require a person to
pay a fine of up to ($50,000) per person found based on the balance of
Probabilities to have committed an offence. And as the court in Kable noted
that the principle will be exercised at all times as every state court has the
ability to exercise federal judicial power, thus if we look at these rules at a
commonwealth level, would it be ok? My opinion would be yes therefore it

should be ok for any state level. In the same year as Kable, the high court
decided on the case of Fardon V Atterony general (QLD) 2004 HCA. In this
case the High court said that legislation would not infringe on Chapter III of
the constitution as long as the state court is called upon to take a genuine
judiciary process and as long as the independency and integrity of the court
is not infringed upon.
Issue 3:
However S5(a) of this act has noted The Supreme Court may receive
evidence certified by the Premier or the Commissioner of the New South
Wales Police Force as confidential information, and must not disclose the
substance of that information to any person. This is in direct contrast with
Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008]
HCA 4. 234 CLR 532, the court had held that the information was not for
the police commissioner (in this case the Premier or the Commissioner of
the New South Wales Police Force) to determine if evidence was of classified,
nor forbid the court from publishing information. nature nor was the court
subject to direction for its review unlike in this law. The fore this section of the
act could be unconstitutional, as it may affect the integrity of the court. Also
directing the court as to what it may or may not include any matter or
material other than a statement as to whether the allegation is proved or not
proved, as the case may be. In my opinion also puts into question the courts
ability to independently and integrally exercise its power as a repository of
the federal court.

As a result of the above information, it is of my professional opinion they

your clients may have a case if they find them selfs affected by the
proposed laws, if such laws are enacted in the NSW government.
Furthermore I would like to add that constitutional cases are herded on a
case by case base and results may vary, therefore I cannot provide you
with a definitive answer.