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SIR HARRY GIBBSCONSTITUTIONAL LAW MOOT

2016

Designed and created by Tamara Charlwood © 2016

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Contents

Competitors

Weekend Schedule

Welcome from the Organisers

Welcome from the Dean

Sir Harry Gibbs GCMG AC KBE

Bradley Selway QC

Round Robin Fixture

Finals Fixture

Previous Winnners

Competition Problem

Grand Final Judges

Competition Rules

Sponsors

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Competitors

Australian National UniversityPrashant KelshikerWilliam RandlesJames Barrett

Bond UniversityBriar BlountEmma DannKathryn Randle

Deakin UniversityClaire PorterD’Arcy HopeJake Tyler

Flinders UniversityTom PowellAlana HumphrisAnthony Stoks

Griffith UniversityIsaac BucklandRachael MurdockViola Adiyo

La Trobe UniversityChase MasonSimon ChiareliiInes Perkovic

Macquarie UniversityDhanya ManiJames PowellFareed Qureshi

Monash UniversityAndrew ElderBeatrice PaullAntonia Glover

Murdoch UniversityChristian PayneMichael OldsAshley Roberts

University of CanberraMatthew AldridgeHarrison ThieleTien Pham

University of MelbourneAlexandra Harrison-IchlovAngus WilloughbyAlexander Di Stefano

University of New South WalesWee-An TanDon NguyenAndrew Roberts

University of QueenslandMia WilliamsAllister HarrisonPenelope Bristow

University of South AustraliaSalsabil HafizCatherine MwkiyaHannah Hay Thomas

University of SydneyMaxine MalaneyMichael PengHarry Stratton

University of TasmaniaHelen SmithCarolyn ScottDaryl Wong

University of Technology SydneyJason CorbettBrendan HancockEric Law

University of Western AustraliaClinton ArnoldNigel SiegwartSasha Dawson

University of WollongongZia KhanJason BallJohn Inan

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9:30am - 9:50am

Registration Foyer (West), Melbourne Law School

10:00am - 10:30am

Opening Ceremony Room G08, Melbourne Law School

11:00am - 1:00pm

Round 1 Melbourne Law School (see fixture)

1:00pm - 2:00pm

Lunch Level 1, Melbourne Law School

2:30pm - 4:30pm


Weekend Schedule

9:30am - 9:50am


10:00am - 12:00pm


12:00pm - 1:00pm


1:30pm - 3:30pm


4:00pm - 6:00pm

Cocktail Party and Announcement of Break

Loch & Key, 34 Franklin Street, Melbourne (upstairs at Captain Melville)

6:30pm - 8:30pm

Quarter Finals Melbourne Law School (see fixture)

9:00am - 9:20am


9:30am - 11:30am

Semi Finals Melbourne Law School (see fixture)

11:30am - 12:30pm


2:00pm - 5:00pm

Grand Final High Court Melbourne, Level 17, 305 Wil-liam Street, Melbourne

7:00pm - 10:00pm

Closing Gala Dinner and Awards Presentation

Woodward Conference Centre, Level 10, Melbourne Law School

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Saturday 24 September

Sunday 25 September

Monday 26 September

It is our pleasure to welcome you to the 2016 Sir Harry Gibbs Constitutional Law Moot. Since its inception in 2002, the ‘Gibbs Moot’, as it is fondly known, has become known as Australia’s premier constitutional law moot.

This year, the competition presents a valuable opportunity for students to compete in front of some of Australia’s most highly regarded judges and public law advocates. In particu-lar, we are honoured that The Honourable Ian Callinan, the Honourable Susan Crennan and The Honourable William Gummow, former justices of the High Court of Australia, have agreed to adjudicate this year’s Grand Final. We are also very grateful to Justice Gageler of the High Court for writing the moot problem.

In addition to the assistance of many judges, barristers and academics we are also in-debted to the Australian Association of Constitutional Law, the Australian Government Solicitor and The Federation Press for their generous support. This has involved not only financial assistance, but also significant aid in an administrative capacity and the gener-ous donation of prizes.

We hope that you enjoy your stay in Melbourne and at Melbourne Law School and make the most of the opportunity to connect with other constitutional law experts and to hone your advocacy skills.

Welcome from the Organisers

Dear competitors,

Best of luck for the competition,

Rachel Walters and Andrew Williams 2016 Directors of Competitions at Melbourne Law School

5Sophie Kaiko

Rachel Walters

Andrew Williams

Oliver Lloyd

Jessica Cao

It is my great pleasure to give a warm wel-come to Melbourne Law School to our com-petitors from around Australia. We are de-lighted to host you for the Sir Harry Gibbs Constitutional Moot Competition again. As someone who has taught constitution-al law for many years, I am particularly pleased to see the interest and enthusi-asm for this competition from so many law schools. Constitutional law raises issues of legal, social, political and cultural complex-ity. There are few weeks at present when questions of constitutional significance are far from the news as Australians grapple

Welcome from the Dean

with issues from indigenous recognition to federalism to judicial independence.

It is critical that law graduates have a strong grounding in constitutional matters, regard-less of the area of law in which they ultimately work or whether they ever work as a lawyer at all. A well informed citizenry is an essential pre-requisite for a functional democracy. There are times when fundamental values such as the separation of powers or limits on executive power come under attack from vested interests. One of the roles of lawyers in those times is to be able to articulate clearly and convincingly that such values are es-sential to our society.

What better preparation could there be for taking on such a role than participating in the Gibbs Moot? I know how busy law students can be and the fact that you have all taken time from your study, paid employment, social life and other obligations to participate in this moot is a credit to you. I hope that developing both your understanding of the consti-tution and your ability to speak clearly, concisely and convincingly will be a reward for this time, regardless of which team ultimately wins.

Particular thanks must go to the Melbourne Law School students and staff who have put in so much time to make this competition possible and to the generous experts who are volunteering their time as judges. Best of luck to you all.

Carolyn EvansDean and Harrison Moore Professor of LawMelbourne Law School

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Sir Harry Gibbs is the deserving eponym for Australia’s most prestigious federal con-stitutional law mooting competition. Profes-sionally, as a Justice of the Supreme Court of Queensland, and then later as a Jus-tice and Chief Justice of the High Court of Australia, he had a profound impact on the development of Australian jurisprudence. Personally, Sir Harry Gibbs was a strong leader but a calm man. His intelligence, honesty and unwavering resilience gar-nered him the respect of his peers, and left a lasting imprint on the legal profession.

His Honour’s constitutional philosophy was traditional and characterised by its fi-delity to the original text and spirit of the nation’s founding document. Fittingly, the High Court continues to be guided by the

1Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49, 56–58 (Gibbs CJ), endorsed in John v Federal Commissioner of Taxation (1989) 66 CLR 417, 438-9 (Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ), and since by the High Court when considering constitu-tional precedent.2See Koowarta v Bjelke-Petersen (1982) 153 CLR 168 and Commonwealth v Tasmania (1983) 158 CLR 1 (‘The Tasmanian Dam Case’). 3See, eg, Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169; Strickland

Sir Harry Gibbs GCMG AC KBE (1917–2005)

principles set out by Sir Harry regarding the appropriateness of overruling constitutional precedent.1 His Honour was also a strong defender of states’ rights and federalism, dissenting against broad interpretations of Commonwealth legislative power in the fields of external affairs2 and corporations,3 and in the definition of duties of excise.4 Sir Harry believed the Constitution in its current form – providing for a federal union under a constitutional monarchy, and governed by the principle of responsible government – to be the best protector and arbiter of the competing rights and interests in our politi-cal system.5 That said, Sir Harry was not an intransigent jurist, and his view of Austra-lia’s independence is also apt to describe his ideal of constitutional jurisprudence: as a ‘result of an orderly development – not as the result of a revolution.’6

v Rocla Concrete Pipes (1971) 124 CLR 468; R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533; R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 (‘Adamson’s Case’); State Superannuation Board (Vic) v Trade Practices Commission (1982) 150 CLR 282.4Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599.5See Sir Harry Gibbs, ‘Re-Writing the Constitution’ (1992), Launching Address to the Samuel Griffiths Society.6Southern Centre of Theosophy Inc v South Australia (1979) 145 CLR 246, 261 (Gibbs CJ).7

Born in 1917, Harry Talbot Gibbs was the elder son of a solicitor practising in Ipswich, Queensland. Throughout his life he was known to his friends as Bill. He excelled at school and in his studies at the University of Queensland, where he graduated in Arts and Law with double First Class Honours.

He was admitted to the Queensland Bar just before the beginning of the Second World War. He saw service in the AIF in New Guinea, was promoted and mentioned in despatches. On demobilisation, he mar-ried Muriel Dunn, whom he had met at Law School. It was a happy marriage, blessed with three daughters and a son. The oldest daughter, Margaret, spoke for the family at the Memorial Service. Hers was a powerful speech about a loving father, husband and grandfather and a man who was always true to his word.

Bill Gibbs’ career at the Queensland Bar flourished. He took Silk in 1957. In 1961, at the then young age of 44, he was ap-pointed a judge of the Supreme Court of Queensland. He was the first law graduate from the University of Queensland to join that Bench. He quickly demonstrated his skill and authority, performing trial and ap-pellate work with equal ability in every field of law. At one stage it seemed that he would be appointed Chief Justice of Queensland. However, he was passed over and soon, in 1967, he moved to the federal judiciary. For a short time he became the Federal Judge in Bankruptcy, based in Sydney. But in 1970 he was elevated to the High Court of Australia. He served on that Court, in-cluding for six years as Chief Justice, until his retirement in 1987. His judicial writings continue to be read in contemporary cases for their broad knowledge of law and sim-plicity of expression.

The time of Mr Justice Gibbs on the High Court was one of turbulence and challenge. Controversy surrounded Chief Justice Bar-wick’s advice to the Governor-General (Sir John Kerr) that was followed by the dis-missal of Prime Minister Whitlam and his government. Equal, or even greater, tur-bulence surrounded accusations against, and the trials of, Lionel Murphy, then a judicial colleague on the High Court. The latter events happened substantially in the period that Sir Harry was Chief Justice. There were many awkward moments. His well known sense of calm was often called upon to help steer the nation’s highest court through those difficult years.

In the 1990s, I came to know Sir Harry Gibbs quite closely in Australians for Con-stitutional Monarchy (ACM)... Bill Gibbs became the Chair of the National Council of ACM. We had many meetings. Sud-denly we found ourselves in a close unex-pected alliance. For him, this was not only a matter of personal loyalty to the Queen but also a deep conviction about the merits of constitutional monarchy as a temperate system of government that worked well.

In the last five years of his life, he was obliged to undertake dialysis; but he was never daunted and he never complained. With Bill Gibbs, in the law, in the Academy and in life, what you saw was what you got. He was formal and courtly; but decent and unpretentious. He was a true Australian of the Old School. His broad Ipswich accent never left him. He was never false. He was honoured many times in his lifetime. To the end he was loyal and devoted to his wife Muriel... Those of us who remember those times will always carry a strong sense of re-spect and affection for Bill Gibbs — a most notable leader and example in the law and in Australian civic life.

7The full text of this speech is available online at: <http://www.michaelkirby.com.au/images/stories/speeches/2000s/vol56/2005/2038-SIR_HARRY_GIBBS_OBIT_JULY_2005.doc>

The following concise biography is extracted from Sir Harry Gibbs’ obituary, delivered by the Hon. Michael Kirby AC CMG:7

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The Selway Cup is awarded to the winner of the Sir Harry Gibbs Constitutional Law Moot. Bradley Maxwell Selway was Solicitor-General of the State of South Australia, Adjunct Professor at Adelaide University, and Justice of the Federal Court of Australia. The in-sight, enthusiasm and innovation that Bradley brought to his various roles in the legal profession should serve as a source of inspiration and aspiration for young lawyers and students alike.

The following is extracted from the eulogy given by the Hon John Doyle AC, Chief Justice of South Australia at the funeral service for Justice Selway:8

I worked closely with Brad for nine years between 1986 and 1995 when I was Solicitor-General. For about six years of this time Brad was Crown Solicitor. After I became Chief Justice in 1995, Brad was appointed Solicitor-General and appeared before me on a number of occasions until his appointment to the Federal Court in 2002.

He obtained his degree in law in 1977. Soon after he was offered a position as an ar-ticled clerk to the then Crown Solicitor, Graham Prior. That was the beginning of the long friendship between them. Brad spent the rest of his career as a lawyer in the service of the State, becoming Crown Solicitor in 1989, and then Solicitor-General in 1995. Along the way he was appointed Queen’s Counsel in 1994. He was appointed a Judge of the Federal Court in November 2002. They are the bare bones of his career.

It goes without saying that Brad was involved in many significant matters and cases while

8The full text of this speech is available online at: <http://search.informit.com.au/documentSummary;dn=200507377;res=IELAPA>

Bradley Selway QC (1955–2005)

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he worked in the Crown Solicitor’s Office, then as Crown Solicitor and as Solicitor-General. He advised the State Government on many complex, significant and sensitive matters. He was regarded by informed ob-servers as an outstanding Solicitor-Gener-al.

Brad was a prodigious worker. He seemed to have boundless energy and enthusiasm for his work. Not only did he put in a huge effort. He worked quickly and efficiently. Whatever the issue, he would read widely and produce written material quickly. Ev-eryone who had the pleasure of working with Brad was well aware of his extraordi-nary industry, and of his ability to produce high quality work quickly. Brad did not use his speed and efficiency to create free time for himself. He was willing to shoulder all tasks and virtually any task, as the occa-sion required.

Brad was a constitutional lawyer who ranked in the top handful of his time Austra-lia wide, because his intellectual strengths were matched by a thorough understand-ing and deep appreciation of public law and of public administration. In the area of State constitutional law, a subset of the wider topic, I have always considered Brad the best in Australia. He had an unequalled knowledge of the law and practice of State Governments, and especially of the legal aspects of public finance.

I should mention his winning of the pres-tigious British Foreign Office Chevening Scholarship, which enabled him in 1990 to undertake further research at the Univer-sity of London.

Brad was a creative thinker. I will give two

examples. In 1987 he and I appeared be-fore the High Court in Cole v Whitfield. This was a major case. In it the High Court took a completely new approach to the famous s 92 of the Australian Constitution. The de-cision of the High Court was influenced to a significant degree by material found in the record of Convention Debates between about 1890 and 1900, being the debates on proposed Australian Constitutions that were considered in the 10 years or so prior to federation. Although I had the privilege of presenting that argument, it was Brad’s idea to delve into the material. It was Brad, and researchers guided by him, who searched the record of Debates and pro-duced the volumes of material that we put before the Court. This was the first case in which the High Court embraced the use of materials of this kind, and it resulted in a string of cases in which they did. At the end of the day, this was Brad’s idea.

In 2002 Brad accepted an appointment as adjunct Professor in Law at Adelaide Uni-versity. His involvement in the faculty of law reflected his deep interest in the long term development of the law, his enjoyment of intellectual debate about the law, and his interest in students.

Brad was a lawyer of a quality equalled by few. He made a mark in his chosen area of a kind that few of us will ever make.

Plaintiff Defendant Room

University of Melbourne Murdoch University Moot Court

University of Queensland Australian National University 920

Monash University University of Technology Sydney 609

University of Canberra Griffith University 608

La Trobe University University of South Australia 605

University of Sydney Deakin University 224

University of New South Wales University of Wollongong 223

Macquarie University University of Western Australia 221

University of Tasmania Bond University G29

University of Tasmania (ghost) Flinders University 627


Australian National University University of Tasmania Moot Court

Murdoch University University of Sydney 920

Deakin University Bond University 609

University of Western Australia University of Canberra 608

University of Technology Sydney University of Melbourne 605

Griffith University La Trobe University 224

University of South Australia Monash University 223

Flinders University University of New South Wales 221

University of Wollongong University of Queensland G29

University of Wollongong (ghost) Macquarie University 627

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Round 1

Round 2

Round Robin Fixture


Griffith University University of New South Wales Moot Court

University of Melbourne University of Queensland 920

Murdoch University Macquarie University 609

Flinders University University of Technology Sydney 608

Australian National University University of South Australia 605

University of Wollongong Deakin University 224

Bond University La Trobe University 223

University of Canberra University of Tasmania 221

Monash University University of Sydney G29

Monash University (ghost) University of Western Australia 627


University of Western Australia Bond University Moot Court

Macquarie University University of Melbourne 920

University of Sydney Griffith University 609

Deakin University Australian National University 608

University of New South Wales Monash University 605

University of Tasmania University of Wollongong 224

University of Technology Sydney University of South Australia 223

University of Queensland Flinders University 221

La Trobe University Murdoch University G29

La Trobe University (ghost) University of Canberra 627

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Round 3

Round 4

Quarter Finals

Finals Fixture

Plaintiff Defendant Room Judges

TBC TBC Moot Court Peter Willis SC

TBC TBC 920 David Fox QC

TBC TBC 609 David O’Callaghan QC

TBC TBC 608 Matthew Collins QC

Semi FinalsPlaintiff Defendant Room Judges

TBC TBC Moot Court The Hon Peter GrayThe Hon Justice Joseph SantamariaKristen Walker QC

TBC TBC 920 The Hon President Chris MaxwellRonald Merkel QCRichard Niall QC

Grand FinalPlaintiff Defendant Room Judges

TBC TBC High Court Melbourne

The Hon Ian CallinanThe Hon Susan CrennanThe Hon William Gummow

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The Hon. Chief Justice Robert French AC delivers the Selway Cup to 2012 winner Angus Abadee from Sydney University. Angus mooted the entire competition by himself as his other teammates unfortunately had to pull out! >>

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Previous Winners

Year Winner

2015 University of Melbourne

2014 Competition not held

2013 University of Queensland

2012 University of Sydney

2011 University of Melbourne

2010 Competition not held

2009 University of Technology Sydney



2006 University of Newscastle



2003 Macquarie University

2002 Bond University

BETWEEN:

ALBERT First Plaintiff

TOBY Second Plaintiff

SPECIAL CASE

Albert (a citizen of Australia) and Toby (a citizen of Tuvalu) were fighting with the Taliban in Afghanistan when they were captured by armed forces of the United States. Each was found by a United States Military Court to have com-mitted the crime against United States law of “being an enemy combatant” and was sentenced on that basis to imprisonment for the term of his natural life. Until recently, they have been serving their sentences at Guantanamo Bay.

The United States, Australia and Tuvalu recently entered into the Enemy Combatant’s Repatriation Treaty under which Australia has become obliged to repatriate Albert to Australia to serve out the remainder of his sentence and to assist Tuvalu in repatriating Toby to Tuvalu to serve out the remainder of his sentence.

Albert is now held at a Commonwealth-operated prison in the Northern Terri-tory under the Albert Act 2016 (Cth), section 1 of which provides “Albert shall remain in prison in the Northern Territory for the remainder of his natural life.” Toby is now held in a prison in Tuvalu under the Toby Act, a law of the Tuvalu-an Parliament, section 1 of which provides “officers of the Australian Govern-ment are hereby authorised to operate a prison for the imprisonment of Toby” and section 2 of which provides “Toby shall remain in prison for the term of his natural life provided that a prison for the imprisonment of Toby continues to be operated by officers of the Australian Government.” The prison is in fact oper-ated by officers of the Commonwealth Department of Foreign Affairs.

Albert and Toby have commenced proceedings against the Commonwealth in the original jurisdiction of the High Court of Australia. Albert seeks, amongst other things, a declaration that the Albert Act 2016 (Cth) is invalid and a writ of habeas corpus requiring his release. Toby seeks, amongst other things, a dec-laration that operation of the prison in Tuvalu is beyond the executive power of the Commonwealth and an injunction restraining Commonwealth officers from operating the prison.

Competition Problem

IN THE HIGH COURT OF AUSTRALIA MELBOURNE REGISTRY

No GF1 of 2016

AND THE COMMONWEALTH Defendant

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The following questions have been reserved for the consideration of the Full Court: 1) Is the Albert Act 2016 (Cth) invalid on the ground that it is inconsistent with Chapter III of the Constitution?

2) Is operation of the prison in Tuvalu beyond the executive power of the Com-monwealth?

***

The Melbourne University Law Students’ Society and the Australian Associa-tion of Constitutional Law extend their sincere gratitude to Justice Gageler of the High Court of Autralia for writing the 2016 Sir Harry Gibbs Constitutional Law Moot problem.

Problem Writer

Justice Stephen Gageler

Stephen John Gageler was appointed to the High Court in October 2012. At the time of his appointment he was Solicitor-General of Australia. He is a graduate of the Australian National Uni-versity and has postgraduate qualifica-tions from Harvard University. He was admitted as a barrister of the Supreme Court of New South Wales in 1989 and was appointed Senior Counsel in 2000. Before his appointment as Solicitor-General in 2008, he practised as a bar-rister extensively throughout Australia, principally in constitutional law, adminis-trative law and commercial law.

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Grand Final Judges

The Hon Ian David Francis Callinan AC QC

Ian David Francis Callinan was appointed to the High Court in February 1998, and served until August 2007. He was the first direct appointment from the bar for 22 years. In constitutional law he, in the tradition of Sir Harry Gibbs, was a strong defender of federalism (dissenting in the Work Choices Case).

The Hon Callinan AC QC graduated with a Bachelor of Laws from the University of Queensland. He was admitted to the Queensland Bar in 1965, and took silk in 1978. He was President of Queensland Bar Association from 1984–87 and also President of the Australian Bar Association from 1984–85. He also served in 2014 as an ad hoc judge of the International Court of Justice in the case of Timor-Leste v Australia.

The Hon Susan Maree Crennan AC QC

Susan Maree Crennan was appointed to the High Court in November 2005, and held office until February 2015. At the time of her appointment she was a judge of the Feder-al Court of Australia, having been appointed to that office in February 2004. She was educated at the University of Melbourne (BA and PostgradDipHist) and the University of Sydney (LLB).

The Hon Crennan AC QC was admitted to the New South Wales Bar in 1979 and joined the Victorian Bar in 1980. She was appointed a Queen’s Counsel in 1989. She was President of the Australian Bar Association 1994–95, Chairman of the Victorian Bar Council in 1993–94, and a Commissioner for Human Rights in 1992.

The Hon William Montague Charles Gummow AC QC

William Montague Charles Gummow was appointed to the High Court in April 1995, and served until his constitution-al retirement in October 2012. He had previously been a judge of the Federal Court of Australia from 1986 to 1995.

The Hon Gummow AC QC graduated from the University of Sydney with a Bachelor of Arts and a Master of Laws. After 10 years in practice as a solicitor, he was admitted to the New South Wales Bar in 1976. He was appointed a Queen’s Counsel in 1986. For 30 years he lectured part-time at the University of Sydney. He is the author and edi-tor of several texts on equity and trusts. In April 2013, he was appointed to the Court of Final Appeal of Hong Kong as a non-permanent judge.

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Part 1: Interpretation

Competition Name

This competition will be known as the Sir Harry Gibbs Constitutional Law Moot (‘the Com-petition’).

Definitions

In this document:

a. ‘Accredited law school’ means a law school that is geographically located within Aus-tralia and has available a Bachelor of Laws and/or a Juris Doctor;

b. ‘Competition’ means the Sir Harry Gibbs Constitutional Law Moot;

c. ‘Competition Organisers’ means the Competition Organising Committee and the Com-petition Directors at Melbourne Law School;

d. ‘Finals’ means the Quarter Final, Semi Final and Grand Final of the Competition.

e. ‘Preliminary Rounds’ means round one (1) to round four (4) of the Competition.

Part 2: Teams

Registration

By entering this Competition, all competitors agree to be bound by the Competition Rules outlined in this document.

Each accredited law school may nominate a team of two (2) to three (3) people to com-pete in the Competition.

Each accredited law school is limited to entering one (1) team to compete in the Competi-tion.

The two (2) or three (3) nominated members shall remain the same for the duration of the Competition.

In a team of three (3) members, two (2) will act as Counsel and one (1) will act as Solici-tor. Team members may rotate positions between Senior Counsel, Junior Counsel and Solicitor during the Competition.

In a team of two (2) members, both will act as Counsel. Team members may rotate posi-tions between Senior and Junior counsel during the Competition.

Team members must not have graduated with a law degree in any jurisdiction.

Each team may only have one (1) coach to assist in preparation for the Competition. The coach may be a faculty member.

Competition Rules

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2.

3.

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10.18

Teams must register by the registration date, 17 June 2016 at 17:00 AEST. The details of each team’s competitors and coach must be finalised by 1 August 2016 at 17:00 AEST.

When registration for the Competition has closed, each team will be allocated a team number. The team numbers will be drawn at random by the Competition Organisers.

Penalty: Any contravention of a rule of Part 2 may result in a disqualification or loss of points as decided at the absolute discretion of the Competition Organisers.

Release of the Problem Question

The problem question will be released via email to competitors on 15 August 2016 at 10:00 AEST. Every effort will be made to ensure that the problem is constructed in a way that does not disadvantage or advantage participants from any particular jurisdiction.

The last date for clarifications of the problem will be 29 August 2016 at 17:00 AEST. The clarifications will be released to all teams on Friday 2 September 2016 at 10:00 AEST.

Competitors will be asked to prepare the same problem question for all rounds of the Competition. Each team must prepare a written memorandum for both the plaintiff and defendant.

All moots will be heard as if before the High Court of Australia. The jurisdiction to hear the case will be assumed.

Research and Preparation

All research and preparation for the moots must be conducted solely by the competitors. Law school staff and coaches must not be involved in the writing of the written memoran-dums. However, competitors may receive general advice and assistance with respect to skills relevant to the Competition prior to the release of the problem question.

Penalty: Any contravention of clause 17 may result in disqualification.

After the release of the problem question until the completion of the Competition, coaches may only provide general commentary on the quality of the team’s legal and factual argu-ments. General commentary in this sense is limited to basic characterisations about merit and non-merit of the arguments and does not include advice on how to improve argu-ments, the correction of error, or highlighting omissions.


Competitors may not use electronic transmission devices at any time for any purpose dur-ing the rounds including, but not limited to; laptops, mobile phones (that are not switched off or on airplane mode), and tablet computers.


11.

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Release of the Draw

The Preliminary Rounds will consist of a single (1) pool and teams will be randomly drawn against each other prior to the commencement of the competition.

The draw will be released to teams via email on 12 September 2016 at 10:00 AEST.

Part 3: Written Memorandums

Teams will be required to submit written memorandums for both the Plaintiff and Defen-dant.

Written memorandums are to be submitted electronically in PDF format by email to [email protected].

The title of the document must be in the format [(team number) – (Plaintiff/Defendant)]. E.g. [2 – Plaintiff].

Penalty: Any contravention of clause 22 – clause 24 may result in a 5 mark penalty per contravention.

The deadline for receipt of written memorandums for both the Plaintiff and the Defendant is 9 September 2016 at 17:00 AEST.

Penalty: Any contravention of clause 25 may result in a 2 mark penalty per 10 minutes late (or part thereof).

The written memorandums will be distributed accordingly to the opposing teams and to the Judges of the moot.

a. In the Preliminary Rounds, teams will be provided with the written memorandum of the opposing teams on 12 September 2016 at 10:00 AEST.

b. In the Finals, teams will be provided with the written memorandum of the opposing team at least one (1) hour prior to their moot.

Written memorandums must contain a cover sheet, an outline of the structure of the team’s submission, major arguments raised, allocations of speaking time and a list of authorities on which counsel rely.

Penalty: Any contravention of clause 27 may result in a 5 mark penalty.

Written memorandums for each party must not exceed ten (10) pages in length, plus an additional one (1) cover page and two (2) pages for a list of authorities.

Penalty: Any contravention of clause 28 may result in a 2 mark penalty.

20.

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Each team must format their written memorandum, cover page and list of authorities in accordance with a standard format:

a. Times New Roman, size 12 font must be used;

b. Line spacing must not be less than 1.5 spacing;

c. Margins must not be less than 2cm on either side;

d. The division of time between speakers must be specified; and

e. Teams must not indicate their university name on any part of the written memorandum.

Penalty: Any contravention of clause 29 (or its sub-sections) may result in a 3 mark pen-alty (only applied once).

Written memorandums may not be revised for any purpose whatsoever once they have been submitted.

During oral submissions, teams may not deviate from their written memorandums, unless invited to do so by the Judge.

Part 4: Oral Submissions

The Competition is comprised of four (4) Preliminary Rounds, a Quarter Final, a Semi Final and a Grand Final.

Each moot will consist of at least two (2) sides (e.g. one (1) Plaintiff and one (1) Defen-dant or any such title as specified in the question).

Procedure

Each team will have forty (40) minutes to present their case (excluding time taken to give appearances and time extensions granted by the Judge).

a. The time may be divided between Senior and Junior Counsel as they see fit, although each speaker must speak for a minimum of 15 minutes.

b. The division of time must be specified in written memorandums.

Judges may grant an extension of time of up to two (2) minutes per competitor at their absolute discretion.

There will be no right of reply, and penalties will apply if Counsel exceeds their allocated or extended time. A competitor must stop speaking when their time has expired, or when asked to do so by the Judge.

Penalty: Any contravention of clause 36 will result in a 2 mark penalty per 30 seconds exceeded time. A right of reply will attract a penalty of between 5–30 marks.

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No written material may be tendered to the Judge during oral submissions.

Penalty: Any contravention of clause 37 may result in a penalty of 10 marks per page handed to the Judge.

Competitors must not be more than five (5) minutes late for the commencement of the moot.

Penalty: Any contravention of clause 38 will result in a penalty of two (2) marks per five (5) minutes late or part thereof.

Procedural submissions must not be made during the moot.

Penalty: Any contravention of clause 39 will result in a 5 mark penalty.

Preliminary Rounds

All teams will compete in each Preliminary Round.

Competitors may not observe, nor are they to be briefed on, proceedings of a Preliminary Round in which they are not competing.


Teams will be randomly allocated to sides. Every endeavour will be made to ensure that a team is not disadvantaged by the draw and will not meet the same team twice in the Preliminary Rounds.

In the case of an uneven number of teams in the Competition, a three-way moot will be held in each of the Preliminary Rounds.

a. There will be one (1) Plaintiff and two (2) Defendants.

b. One (1) team each round (the Odd Team) will be randomly drawn against another team (the Ghost Team) who is also the Plaintiff.

c. The Ghost Team’s score from that round will be compared against the Odd Team to determine the winner of that fixture.

d. The Odd Team will be declared the winner of their moot if their total score exceeds the total score of the Ghost Team.

e. The Plaintiff team can only be declared the winner against the Defendant team drawn in the fixture. The Defendant team can only be declared the winner against the Plaintiff team drawn in the fixture.

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In a three-way moot, the following procedure will apply.

a. The Plaintiff, Defendant, Odd Team and two (2) Judges will observe the oral submis-sions of the Plaintiff.

b. Immediately following the Plaintiff’s oral submissions, both the Defendant and the Odd Team will present their oral submissions. The Odd Team will be moved to a different room to present their oral submissions, along with one (1) Judge.

c. The same Judge will hear the oral submissions of the Ghost Team and the oral submis-sions of the Odd Team.

d. Teams will only be given one (1) set of opposing written memorandums. Teams are expected only to respond to the arguments of the opposing written memorandums they receive.

e. As an exception to clause 41, the Odd Team is permitted to observe the Ghost Team’s oral submissions but must not observe any other part of that moot.

In the event that one (1) or more team(s) withdraw from the competition, resulting in an uneven number of teams, randomly allocated teams will be matched into a three-way moot as outlined in clause 43.

Timekeeping

Responsibility for timekeeping and adherence to allotted time periods and breaks rests with the Judges.

If resources and volunteers are available, timekeepers and timekeeping devices may be provided and in such cases they will be solely responsible for all time keeping and penal-ties. A timekeeper shall not be an individual from the same team as any competitor in that particular moot.

Decisions by judges as to elapsed times are final and non-reviewable.

Observers

Observation of the Competition is encouraged, however potential for disruption must be minimised. Observers should not enter or leave the room whilst a competitor is speaking.

Judges may, if they wish, request that observers leave the room while they confer. Out-side of this discretion, observers may watch all segments of a round.

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Part 5: Judging and Scoring

Judging

Every effort must be made by the Competition Organisers and the teams to ensure that Judges are unaware of the university that competitors are from until after they have finished judging the Competition.

All Judges must have suitable legal qualifications or relevant experience. Judges will be judges, legal practitioners, legal academics, or others with demonstrated relevant expe-rience in competitions, and/or relevant professional experience.

Judges will be provided with:a. The moot question;b. A summary of the issues in the question (at least one (1) page);c. The score sheet;d. A summary of the Competition rules; ande. Written memorandums submitted by the teams competing in the moot.

Judges will award each individual in the moot a mark out of one hundred (100).

Where there is more than one Judge, each Judge will be asked to produce an individual score sheet and the winner will be determined by the majority opinion.

Each team’s score sheets will be submitted by the Judge to the Competition Organisers at the conclusion of each moot.

Progression from Preliminary Rounds

Teams will progress through to the Quarter Final based on the procedure of ranking set out in clauses 58 and 59 below.

The eight (8) teams with the highest win-loss ratios will automatically progress through.

If two (2) or more teams have tied win-loss ratios, a two-way analysis of variance will be used as a scoring model, to separate these teams. This involves logarithmic regres-sion to remove the scoring discrepancies derived from teams being judged by different judges, and teams facing different opponents. The calculations will be made available to any team who requests them.

The formula used will be the following:

log(SAJ) = log(TA) + log(BJ) + error, where SAJ is Team A’s score in front of judge J; TA is A’s ‘true score’ and BJ is the scoring effect of J

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Quarter Finals

Competitors may not observe, nor are they to be briefed on, proceedings of a Final in which they are not competing. This does not apply to competitors no longer in the Com-petition.


The draw for the Quarter Final will be seeded based on the procedure of ranking set out in clauses 58 and 59.

Teams will be allocated sides by random draw.

Quarter Finalists will be announced after the conclusion of the Preliminary Rounds and teams will be informed of their side. Each team will only compete once in the Quarter Final Round.

Semi Finals

The winners of each Quarter Final round progress to the Semi Finals.

Semi Finalists will be announced after the conclusion of the Quarter Finals. Each team will only compete once in the Semi Final Round.

Teams will be allocated sides by random draw.

Grand Final

The winning team from each Semi Final will proceed to the Grand Final.

Grand Finalists will be announced after the conclusion of the Semi Finals.

Teams will be allocated sides by random draw.Part 6: Penalties and Forfeiture

Penalties

Where a penalty is levied against a team, the penalty will be divided equally amongst Counsel for that team. Where an individual competitor is disqualified, their team will be able to continue in the Competition provided that two (2) team members remain in the team.

Judges shall not be notified of the application of any penalties at any time by the Com-petition Organisers.

If a Judge becomes aware that a penalty has been or will be applied, they will be in-structed not to take this penalty into consideration when marking the competitors.

The Competition Organisers have full discretion as to the application of all penalties.

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Forfeiture

Any team that forfeits will be deemed to have lost that moot. Counsel for the forfeiting team will be deemed to have a mark of zero (0) for that round.

Any team whose opponents forfeit a round will be deemed to have won that moot. The team’s margin will be the average of their margins from the other rounds.

Any team which forfeits shall be excluded from progressing through to the Finals.

A forfeit will be considered to have occurred where a team withdraws after the oppo-nent’s written memorandum has been released.

No member of a forfeiting team is eligible for the award of best speaker.

Part 7: Scoresheets and Awards

Release of Score Sheets and Rankings

Score sheets will be made available to teams one (1) hour after the conclusion of every round. Each team may only view their own score sheet. Score sheets must be returned to the Competition Organisers immediately afterwards.

Live rankings will be released via the Competition website at the end of the first day of the Competition. Final rankings of the Preliminary Rounds will be released via the Com-petition website at the end of the second day of the Competition.

The Judge’s decision is final. No appeals are permitted on the basis of score sheets or rankings.

Best Speaker Awards

An award for best speaker will be given for the Preliminary Rounds and for the Grand Final.

The best speaker of the Preliminary Rounds must have competed in at least three (3) moots. Speakers will be ranked according to their mean percentage. The mean percent-age shall be calculated each round by taking the competitor’s score and dividing it by the total number of points awarded in that moot. This value will then be added to the value derived from the competitor’s other moots and divided by the number of moots they speak in.

The award for best speaker of the Preliminary Rounds shall be announced at the Clos-ing Gala.

The best speaker of the Grand Final will be selected by the adjudication panel presiding over the Grand Final.

The award for best speaker of the Grand Final will be announced at the Grand Final.

In the event of a tie, the competitors will share the prize.

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Best Written Memorandum Awards

Awards will be given for Best Plaintiff Written Memorandum and Best Defendant Written Memorandum from the Preliminary Rounds.

The best three (3) plaintiff written memorandums and the best three (3) defendant writ-ten memorandums from the Preliminary Rounds will be sent to an independent judging panel, who will select the winner. The written memorandums shall not identify which university the teams are from.

The best three (3) plaintiff written memorandums will be selected by the mean points awarded for each plaintiff memorandum in the Preliminary Rounds. This will be calcu-lated in each round by taking the score for the plaintiff written memorandum from each Judge and dividing it by the total number of points awarded for written memorandums in that moot. This value will then be added to the value derived from the plaintiff written memorandum’s scores in other moots and divided by the number of moots in the Pre-liminary Rounds that the team competes as the plaintiff.

The same procedure in clause 90 will be used to determine the best three (3) defendant written memorandums.

The awards for best written memorandum will be announced at the Closing Gala.

In the event of a tie, the competitors will share the prize.

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The Australian Association of Constitutional Law

The Australian Association of Constitutional Law is a forum for scholars and practitioners of constitutional law throughout Australia. The AACL seeks to promote the discipline of con-stitutional law in Australia as well as supporting its teaching, research and practice. The AACL is affiliated with the Interna-tional Association of Constitutional Law.

The Australian Government Solicitor

The Australian Government Solicitor operates as the primary provider of legal services to the Australian Government and its various agencies. It forms a part of the Attorney General’s Department and acts as a full service legal practice. The AGS maintains offices in each of Australia’s capital cities and offers both clerkship and graduate employment programs.

The Federation Press

The Federation Press is an independent, Australian-owned and run publishing company specialising in legal, social and academic books. It was founded in 1987 by Kathryn Fitzhen-ry, Christopher Holt and Diane Young.

Sponsors

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Melbourne Law School185 Pelham St Carlton VIC 3053

Competition Organiser — 0402 324 421

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