LAW1112 Semester 2 2023 Marking Guide
Ques9on 1: “…advise the Prime Minister as to whether Rachel is liable for prosecu9on under the
Comba&ng Misinforma/on Act 2023 (Cth).”
NOTE: There are a number of marks available for this ques8on – but not a massive number of issues.
Students that are able to give MORE relevant detail in rela8on to each of the categories below should
be rewarded with higher marks in each category
Answers Available
marks
Introduc9on General statement of the modern purposive approach 1
• Acts Interpretation Act 1901 (Cth), s 15AA 1
• Project Blue Sky
Naviga9ng the statute: 1
• digital platform service under s 4(1)(b)
• 7(1)(a) – misleading or deceptive?
• Cause serious harm as per s 2?
• Excluded content for misinformation purposes, because it is satire (s 2)
Text Misleading or decepGve - 7(1)(a)
• Not defined.
o Misleading in dicGonary: “giving the wrong idea or impression.” 1
o Decep9ve in dicGonary: “giving an appearance or impression different from
the true one” 1
• Could go either way. Arguably audience was aware it was not the real PM.
Cause serious harm as per s 2?
“harm to the integrity of Australian democraGc processes or of Commonwealth, State,
Territory or local government insGtuGons” or “harm to the Australian environment”. 1
Arguments can go either way.
SaGre (s 2)
• Sa9re not defined. DicGonary “the use of humour, irony, exaggeraGon, or ridicule to
expose and criGcize people's stupidity or vices, parGcularly in the context of
contemporary poliGcs and other topical issues.” 1
• Good faith? DicGonary “honesty or sincerity of intenGon”.
1
Context Rachel will argue defence of “good faith” as per S2: “Content produced in good faith for 3
the purposes of entertainment, parody or saGre;”
Good faith not defined in dicGonary, but defined in s 1: “good faith, which is conduct
which is honest, genuine and not misleading.”
LAW1112 Semester 2 2023 Marking Guide
Purpose Intrinsic: 1
• Title/Objectives
Extrinsic:
• Second Reading Speech 1
• Statement of Compatibility 1
Presump9ons Legal presumpGons – idenGfy step 2
• Presumption that legislation is presumed to be constitutionally valid - implied
freedom of political expression; legislation should not be interpreted to impinge
on this.
• Main presumption is the principle of legality - specific explanation of the step with
cases.
• Commonwealth Act so no Charter analysis – and there is no Charter style
interpretive instruction in the Commonwealth Human Rights (Parliamentary
Scrutiny) Act 2011. [No marks for Charter analysis]
Process per Evans v New South Wales – clear explanaGon of each step 1
• Step 1 – Yes, engages with the right to free speech
• Step 2 – Yes, necessary implications - provision can only operate if it
restricts conduct including speech
• Step 3 – courts will adopt an interpretation that protects right, where
possible, in accordance with the ordinary process of interpretation
Conclusion Which interpretaGon court will adopt, and why 2
Applica9on 1
Bonus • Constitutional implied freedom of political communication 1
(addi9onal to • Any other good arguments
20 marks) • Use of public law concepts as support
TOTAL 10
LAW1112 Semester 2 2023 Marking Guide
Ques9on 2: “…Advise Google LLC and Andy on whether they are liable for penal/es under the
Comba&ng Misinforma/on Act 2023 (Cth).”
NOTE: There are a LOT of issues here for a lesser number of marks. Brevity by students in relaGon to
each category (relaGve to the previous quesGon) is expected – in other words, relaGve summary
treatment of issues should not be penalised.
HOWEVER, as the quesGon directs students to discuss arguments for both Google LLC and Andy – the
best marks should only be awarded to students that address both. Students can do this as separate
steps or together, but should not be awarded if they have not discussed each party.
Answers Available
marks
Introduc9on General statement of the modern purposive approach (can reference above) 0.5
• Acts Interpretation Act 1901 (Cth), s 15AA
• Project Blue Sky
NavigaGng the statute:
• digital platform service under s 4(1)(b) 0.5
• 7(1)(a) – misleading or deceptive?
• Cause serious harm as per s 2?
• Excluded content for misinformation purposes, because it is satire (s 2)
Text Google LLC (for hosGng video)
Digital plajorm service under s 4(1)(c): 1.5
YouTube may be a “Digital plaUorm service” however, note that the secGon focuses on
“primary funcGon is providing audio and similar content”.
Misleading or decepGve - 7(1)(a)
• Can cross reference above
• Likely misinformaGon under s 7 and thus liable under s 9. Not defined.
o Misleading in dicGonary: “giving the wrong idea or impression.”
o Decep9ve in dicGonary: “giving an appearance or impression different from
the true one”
Cause serious harm as per s 2?
“harm to the integrity of Australian democraGc processes or of Commonwealth, State,
Territory or local government insGtuGons”
Andy (for WhatsApp messages) 1.5
• Likely misinformation under s 7 and thus liable under s 10
o False information not disputed in facts
• may be excluded content for misinformation purposes, because it is professional
news source
o “news source” defined in s 2. It is debatable whether Andy is a
professional.
• May also be excluded services for misinformation purposes (s 6) because it is a
private messaging service or similar - s 6(1)(e)
o However, definition of private messaging service is singular (arguably
not a group chat)
LAW1112 Semester 2 2023 Marking Guide
Context Google LLC
“Digital plaUorm service” s 4(1)(c) 1
• Correct use of ejusdem generis or noscitur a sociis to discuss whether Google LLC’s
“primary function is providing audio and similar content”.
Andy 1
excluded services for misinforma9on purposes (s 6)
• correct use of ejusdem generis or noscitur a sociis to discuss whether WhatsApp is a
“private messaging service or similar - s 6(1)(e)”.
Purpose Google LLC 1
Intrinsic:
• Title/Objectives
Extrinsic:
• Second Reading Speech
• Statement of Compatibility
Andy 1
Intrinsic:
• Title/Objectives
Extrinsic:
• Second Reading Speech
• Statement of Compatibility
Presump9ons Legal presumpGons – idenGfy step 0.5
• Presumption that legislation is presumed to be constitutionally valid - implied
freedom of political expression; legislation should not be interpreted to impinge on
this.
• Main presumption is the principle of legality - specific explanation of the step with
cases.
• Commonwealth Act so no Charter analysis – and there is no Charter style
interpretive instruction in the Commonwealth Human Rights (Parliamentary
Scrutiny) Act 2011. [No marks for Charter analysis]
Process per Evans v New South Wales – clear explanaGon of each step
• Step 1 – Yes, engages with the right to free speech 0.5
• Step 2 – Yes, necessary implications - provision can only operate if it
restricts conduct including speech
• Step 3 – courts will adopt an interpretation that protects right, where
possible, in accordance with the ordinary process of interpretation
Conclusion Which interpretaGon court will adopt, and why 0.5
Applica9on Google LLC
0.5
Andy
Bonus • Constitutional implied freedom of political communication 1
• Any other good arguments
• Use of public law concepts as support
TOTAL 10
LAW1112 Semester 2 2023 Marking Guide
