Australian Constitutional Law - Seminar 11 - Problem Question 7

As a result of the ongoing Covid-19 pandemic, the 2022 FIFA World Cup has been moved from Qatar to South East Queensland. Not everyone is happy. Over the last few weeks, growing protests have been held on the beach at Surfers Paradise on the Queensland Gold Coast by residents and regular beach goers angered over the construction of a football stadium holding twenty thousand seats for the World Cup. These protests have reached the sympathetic ears of the Federal Minister for the National Interest. The federal government immediately passes the National Heritage 2022 Act (Cth) which says:

s 1(1) A proclamation may be made under sub-section (2) in relation to identified property that is in a State and is property to which one or more of the following paragraphs apply:

1. the property is part of the heritage distinctive of the Australian nation -
2. by reason of its aesthetic, historic, scientific or social significance; or
3. by reason of its international or national renown,

and by reason of lack or inadequacy of any other available means for its protection or conservation, it is peculiarly appropriate that measures for the protection or conservation of the property be taken by the Parliament and Government of the Commonwealth as the national parliament and government of Australia.

(2) Where the Governor-General is satisfied that any property in respect of which a Proclamation may be made under this sub-section is being or is likely to be damaged or destroyed, he or she may, by Proclamation, declare that property to be property to which section 2 applies.

s 2(1) Except with the consent in writing of the Minister for the National Interest, it is unlawful for a person, whether himself or by his servant or agent -

1. to carry out any excavation works on any property to which this section applies;
2. to erect a building or other substantial structure on any property to which this section applies or to commit any act in the course of, or for the purpose of, the erection of a building or other substantial structure on any property to which this section applies:

s 3.There will be a National Interest World Cup 2022 Authority, which will have as its objective the protection of the National Interest for the period running up to and including the World Cup to be held in Brisbane and the Gold Coast in 2022.

s 4.The Commonwealth may acquire any private property in close proximity to any site proclaimed as having heritage distinctive of the Australian nation under section 1, where the Minister for the National Interest has formed the view that the use of that property poses a threat to the protected area proclaimed under the Act. No compensation will be payable.

s 5. The following, words, symbols and logos cannot be used or reproduced without the permission of the National Interest World Cup 2022 Authority:

1. "Surfers Paradise" in conjunction with "World Cup" or "2022"
2. "World Cup" in conjunction with "Gold Coast" or "2022"
3. "Surfers Paradise" in conjunction with "2022" or "Football"

s 6.Notwithstanding any law of the Commonwealth or of the Northern Territory,

1. the Commonwealth is not liable to pay compensation to any person or State by reason of the enactment of this Act.
2. no cause of action for damages will lie against the Commonwealth where the damage arises from the enactment of this Act

s 7. Any person who is charged with a breach of any provision of this Act shall have the matter heard by the National Interest World Cup 2022 Authority and if found in breach of a provision of this Act will be subject to a fine of $10 000.

s 8. The National Interest World Cup 2022 Authority shall be made up of a judge of the Federal Court and three nominees of the Minister for the National Interest who shall hold office until the conclusion of the World Cup in 2022.

The Federal Government secures a proclamation from the Governor-General that the beach at Surfers Paradise is property to which the section applies and the building of the football stadium is immediately stopped.

The Queensland State government seeks the consent in writing of the Minister for the National Interest to continue work on the stadium. The Queensland government claims that if the stadium cannot be built on the existing site they will have no way to recoup the costs through ticket sales that they have already committed to the builders and other contractors because they will have to go ahead with the football tournament either without a stadium or at another location where the stadium has only 200 seats.

The minister refuses and the State Government challenges the legislation. There were to be ten games held in the stadium during the course of the World Cup and 200,000 individual ticket holders are up in arms as they will now have their tickets refunded and be placed in a lottery to obtain 1 of a likely 4,000 seats. They plan to sue both the State and Federal government. The Queensland government is facing losses of $2.4 million and says the effect will be to effectively bankrupt the World Cup.

1) On what grounds can the State government challenge the legislation? On what grounds might the ticket holders sue the Federal government?

There are lengthy queues outside the ticket office of Ticketown which has its headquarters on the main promenade on the beach at Surfers Paradise next to the site where the football stadium was to be built. The Commonwealth government is concerned that the Queensland government will use the queues to cause media storm around the actions of the Minister for the National Interest and moves quickly to acquire the property that Ticketown leases. Ticketown are allowed to continue their lease so long as they only open their office for one hour from 10-11am on Wednesday morning. Despite the protests around the stadium, Ticketown had been doing a very good trade in tickets for other events during the World Cup and they are now losing significant amounts of ticket sales fees. They had been receiving a $7.50 fee for every ticket they sold. Although they continue to sell tickets online and over the phone, they estimate their losses to be about 30% of ticket sales from their bricks and mortar office.

2) Advise Ticketown whether they have grounds to challenge the Commonwealth government's actions

Bob the builder had a contract to build the stadium with the Queensland government and is frustrated that all his equipment is standing idle and he is not getting paid. He and his business partner Denise the dump truck driver hatch a plan to begin excavating in the middle of the night so that once the damage is done the government will have no choice but to let them finish the job. They are immediately charged as in breach of section 2 of the Act, brought before the National Interest World Cup 2022 Authority under s 7 of the Act and found to be in breach. They are fined $10000 but are refusing to pay.

3) Advise Bob and Denise whether they need to pay the fine