!"#$ !"#$%&##'$("))*$ %&'()*)+)*&',-./,0.1&&) 2 ACKNOWLEDGEMENT OF COUNTRY We acknowledge the Wurundjeri Peoples of the Kulin Nations as the Traditional Owners of the land on which Melbourne Law School stands. We pay our respects to their Elders both past and present. 3 Table of Contents COMPETITORS 5 COMPETITION TIMELINE 7 WELCOME FROM THE ORGANISERS 8 SIR HARRY GIBBS 9 THE SELWAY CUP 11 FIXTURE – PRELIMINARY ROUNDS 13 PREVIOUS WINNERS 14 GRAND FINAL JUDGES 15 2019 MOOT PROBLEM 16 SPONSOR 24 COMPETITION RULES 25 MAPS & DIRECTIONS 35 CAMPUS RESOURCES 37 4 Competitors AUSTRALIAN CATHOLIC UNIVERSITY UNIVERSITY OF CANBERRA Wei Wen Phang Blade Sanchez Lochlan Plane Jessica Lauc Hugh Wetherill Jackson Ho AUSTRALIAN NATIONAL UNIVERSITY UNIVERSITY OF MELBOURNE Keira Germech Tyrone Connell Samuel Cass Bodhi Shribman Jared Hee Zoe Brown BOND UNIVERSITY UNIVERSITY OF NEW SOUTH WALES Madeleine Bowater John David Lidbetter Jesse Clough Jason Dong Jonathan Sahhar Leigh Gordon CURTIN UNIVERSITY UNIVERSITY OF NEWCASTLE Xavier Hazard Conrad James Victor George Nicholls Monique Eeson John Tearle Elise Christou Aesha Awan LA TROBE UNIVERSITY UNIVERSITY OF NOTRE DAME AUSTRALIA Mohamed Naleemudeen Maddison Hogan Ali Raza Emily-May Roberts Daniel RelJic Paige O’Shea MACQUARIE UNIVERSITY UNIVERSITY OF QUEENSLAND Casey Thomas Hannah Braiding-Watson Nina Stammbach Tooru Nishido Sarah Schooley Rachna Nagesh MONASH UNIVERSITY UNIVERSITY OF SYDNEY Joshua Kaye Georgia Reid Lorena Stents Giacomo Rotolo-Ross Nhu-Y Nguyen Juliette Mei Li Van Ratingen MURDOCH UNIVERSITY UNIVERSITY OF TASMANIA Ella Ewart Samuel Camp Conor McCavana Sylvia Lawrence Madison Colangelo Noah Grubb 5 QUEENSLAND UNIVERSITY OF TECHNOLOGY UNIVERSITY OF TECHNOLOGY SYDNEY Giulia Marrama Alexander Leal Smith Teagan Matthews Lane Pitcher Matthew Hickey Mikaela Smith RMIT UNIVERSITY OF WESTERN AUSTRALIA William Hade Alexander Gibson Zoe Burdock Olivia Everett Megan Clover Bridget Rumball UNIVERSITY OF ADELAIDE UNIVERSITY OF WOLLONGONG Amelia Atkinson Sophie Whittaker Jana Humzy Bethany McGhie Bianca Tramaglino Emerson Hynard 6 Competition Timeline Thursday 3 October Ground Floor Foyer (West), Mel- 9:00am – 9:30am Competitor registration bourne Law School (‘MLS’) 10:00am – 10:30am Opening ceremony Room G08, MLS 11:00am – 1:00pm Round 1 MLS (See Fixture) 1:00pm – 2:00pm Lunch Level 1 Foyer, MLS 2:30pm – 4:30pm Round 2 MLS (See Fixture) Friday 4 October Melbourne University Law Students’ 9:30am – 9:50am Competitor sign-in Society Office, Level 2 (East), MLS 10:00am – 12:00pm Round 3 MLS (See Fixture) 12:00pm – 1:00pm Lunch Level 1 Foyer, MLS 1:30pm – 3:30pm Round 4 MLS (See Fixture) Cocktail event & an- 4:00pm – 6:00pm Prince Alfred’s Rooftop & Bar nouncement of the break 6:30pm – 8:30pm Quarter Finals MLS (See Fixture) Saturday 5 October Ground Floor Foyer (West), 9:00am – 9:20am Competitor sign-in MLS 9:30am – 11:30am Semi Finals MLS (See Fixture) Court 1 (8A), Federal Court Mel- 2.00pm - 5.00pm Grand Final bourne Gala dinner and awards Woodward Conference Centre — 7:00pm – 10:00pm presentation Level 10, MLS 7 Welcome From The Organisers Dear Competitors We warmly welcome you to the 2019 Edition of the Sir Harry Gibbs Constitutional Law Moot. Since its inception in 2002, the ‘Gibbs Moot’, as it is colloquially known, has become recognised as Aus- tralia’s premier constitutional law moot. In 2019, we will be welcoming a total of 22 teams during the competition weekend in October. The competition presents a valuable opportunity for students to compete in front of some of Aus- tralia’s most respected Judges and public law advocates. In particular, we are grateful to have the Honourable Justice Patrick Keane AC (HCA), Professor the Honourable Marilyn Warren AC (former VSCA CJ) and the Honourable Justice Richard Niall QC (VSCA) adJudicating the 2019 Grand Final. We are thankful to Dr Stephen Donaghue QC, the Solicitor-General of the Commonwealth of Australia, for writing the 2019 Moot Problem. In addition to the assistance of many judges, barristers and academics, we are also indebted to our sponsor, the Australian Government Solicitor for its generous support. We would also like to thank The Federation Press and the Australian Association of Constitutional Law for their contributions. For all those who have travelled from interstate, welcome to Melbourne and to Melbourne Law School! We hope that you enJoy your brief stay here. We wish everyone the best of luck for the weekend. We hope you make the most of the opportunity to meet other law students and to network with members of the legal profession. Warm regards Sarah Watling, Pia Mitchell and Jessica Flatters 2019 Directors of Competitions Melbourne Law School Ken Kiat, Cellina Christoffelsz and Chloe Smith 2019 Gibbs Moot Officers Melbourne Law School 8 Sir Harry Gibbs Sir Harry Gibbs is the deserving eponym for out by Sir Harry Gibbs regarding appropriate- Australia’s most prestigious federal constitu- ness of overruling constitutional precedent.1 tional law mooting competition. Professionally, His Honour was also a strong defender of as a Justice of the Supreme Court of Queens- states’ rights and federalism, dissenting land, and then later as a Justice and Chief Jus- against broad interpretations of Common- tice of the High Court of Australia, his Honour wealth legislative power in the fields of exter- had a profound impact on the development of nal affairs2 and corporations,3 and in the defi- Australian Jurisprudence. Personally, Sir Harry nition of duties of excise.4 Sir Harry Gibbs be- Gibbs was a strong leader but a calm man. His lieved the Constitution in its current form – intelligence, honesty and unwavering resili- providing for a federal union under a constitu- ence garnered him the respect of his peers and tional monarchy, and governed by the princi- left a lasting imprint on the legal profession. ple of responsible government – to be the best protector and arbiter of the competing rights His Honour’s constitutional philosophy was and interests in our political system.5 That said, traditional and characterised by its fidelity to Sir Harry Gibbs was not an intransigent jurist, the original text and spirit of the nation’s and his view of Australia’s independence is founding document. Fittingly, the High Court also apt to describe his ideal of constitutional continues to be guided by the principles set jurisprudence: as a ‘result of an orderly devel- opment – not as the result of a revolution’.6 1 Commonwealth v Hospital Contribution Fund (1982) 150 130 CLR 533; R v Federal Court of Australia; Ex parte WA CLR 49, 56–8 (Gibbs CJ), endorsed in John v Federal National Football League (1979) 143 CLR 190 (‘Ad- Commissioner of Taxation (1989) 66 CLR 417, 438–9 amson’s Case’); State Superannuation Board (Vic) v (Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ), Trade Practices Commission (1982) 150 CLR 282. and since by the High Court when considering constitu- 4 Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR tional precedent. 599. 2 See Koowarta v Bjelke-Petersen (1982) 153 CLR 168; 5 See Sir Harry Gibbs, ‘Re-Writing the Constitution’ Commonwealth v Tasmania (1983) 158 CLR 1 (‘The Tas- (1992), Launching Address to the Samuel Griffith Soci- manian Dam Case’). ety. 3 See, eg, Actors and Announcers Equity Association v 6 Southern Centre of Theosophy Inc v South Australia Fontana Films Pty Ltd (1982) 150 CLR 169; Strickland v (1979) 145 CLR 246, 261 (Gibbs CJ). Rocla Concrete Pipes (1971) 124 CLR 468; R v Trade Prac- tices Tribunal; Ex parte St George County Council (1974) 9 The following concise biography is extracted The time of Mr Justice Gibbs on the High Court from Sir Harry Gibbs’ obituary, delivered by the was one of turbulence and challenge. Contro- Hon Michael Kirby AC CGM.7 versy surrounded Chief Justice Barwick's advice to the Governor-General (Sir John Kerr) that Born in 1917, Harry Talbot Gibbs was the elder was followed by the dismissal of Prime Minister son of a solicitor practising in Ipswich, Queens- Whitlam and his government. Equal, or even land. Throughout his life he was known to his greater, turbulence, surrounded accusations friends as Bill. He excelled at school and in his against, and the trials of, Lionel Murphy, then studies at the University of Queensland, where a judicial colleague on the High Court. The lat- he graduated in Arts and Law with double First- ter events happened substantially in the period Class Honours. that Sir Harry was Chief Justice. There were many awkward moments. His well-known He was admitted to the Queensland Bar just sense of calm was often called upon to help before the beginning of the Second World War. steer the nation's highest court through those He saw service in the AIF in New Guinea, was difficult years. promoted and mentioned in despatches. On demobilisation, he married Muriel Dunn, In the 1990s, I came to know Sir Harry Gibbs whom he had met at Law School. It was a quite closely in Australians for Constitutional happy marriage, blessed with three daughters Monarchy (ACM) ... Bill Gibbs became the Chair and a son. The oldest daughter, Margaret, of the National Council of ACM. We had many spoke for the family at the Memorial Service. meetings. Suddenly we found ourselves in a Hers was a powerful speech about a loving fa- close unexpected alliance. For him, this was ther, husband and grandfather and a man who not only a matter of personal loyalty to the was always true to his word. Queen but also a deep conviction about the merits of constitutional monarchy as a temper- Bill Gibbs' career at the Queensland Bar flour- ate system of government that worked well. ished. He took Silk in 1957. in 1961, at the then young age of 44, he was appointed a judge of In the last five years of his life, he was obliged the Supreme Court of Queensland.