The Federal Government introduces the Celebration of Australia as a Sporting NationCouncil Act 2022 into the Commonwealth
(1) to make assessments of sports as to whether they are national sports (the seconcepts are defined, from time-to-time, by a committee chaired by the PrimeMinister and comprising appointed historians, business leaders, sporting personalities and cultural identities and set down in Schedule 1 of the Act);
(2) to advise the Prime Minister and the Minister for Sports on the conservation and protection of sports included, or being considered for inclusion, in theNational Sporting Nation List
(3) to nominate sports for inclusion in the National Sporting Nation List
(4) to advise the Minister for Sports on a wide range of matters relating to research,education, policy issues, funding, monitoring and the Commonwealth'sresponsibilities for facilitating Australian sport;
(5) to advise the Minister for Communication on the sports to be included in the special events list under s 115(1) of the Broadcasting Services Act;
(6) to provide government-approved information about Australian sports; and
(7) to nominate sporting organizations to receive grants of up to $250 000 topromote their sports nationally.
Schedule 1 of the Act states a sport may have a national status because of:
(a) the sport's importance in the course, or pattern, of Australia's natural or culturalhistory, including colonial and State history; or (b) the sport's importance in demonstrating the characteristics of mateship and afair go; or (c) the sport's importance in exhibiting particular aesthetic characteristics valuedby a community or cultural group; or (d) the sport's importance in demonstrating a high degree of creative or technicalachievement at a particular period; or (e) the sport's strong or special association with a particular community or culturalgroup for social, cultural or spiritual reasons; or (f) the sport's special association with the life or works of a person, or group ofpersons, of importance in Australia's natural or cultural history.Section 6 sets out additional powers of the Council(1) The Australian Sporting Nation Council shall establish a corporate body for thepurpose of engaging in trade associated with promoting sports listed in theNational Sporting Nation List, including but not limited to:
(a) entering into contracts, agreements or arrangements for the promotionof sporting clubs and competitions; and
(b) manufacturing and distributing (whether by sale or otherwise) ofanything bearing a mark, symbol or writing associated with the Council.
(2) No trading corporation, other than one established by the Australian SportingNation Council pursuant to subsection (1), shall be permitted to carry on abusiness promoting any of the sports listed in the National Sporting Nation List.Section 115(1) of the Broadcasting Services Act (referred to in section s 5(6) of theCelebration of Australia as a Sporting Nation Council Act 2022) states that theCommunications Minister may,by notice published in the Gazette, specify an event, or events of a kind,
the televising of which should, in the opinion of the Minister, beavailable free to the general public.
The Minister has published such a notice which is known as the anti-siphoning list. Youcan find it at this link.Material FactsOne month after passage of the Celebration of Australia as a Sporting Nation CouncilAct, the Minister issues the Broadcasting Services (Events) Notice (No. 1) 2022. Thenotice provides that:
The Commonwealth Minister for Sport has been advised by theAustralian Sporting Nation Council under s 5(3) that all sports listed onthe Anti-Siphoning List should be included on the National SportingNation List and that under s 5(7) the Queensland Greyhound Racingindustry should be given a $250 000 grant to promote Greyhound racingAustralia wide. The Commonwealth Minister for Sport indicates that shewill follow the advice of the ASNC.The Australian Sporting Nation Council has established and registered a corporationwith the business name, Australian National Sports Pty Ltd, through which it plans tosell merchandise such as hats and t-shirts bearing the words 'Australian SportingNation' and the Council's logo.The Victorian government is worried that Australian Rules Football (AFL) and theMelbourne Cup will lose their Victorian flavour if listed on the National SportingNation List. The Attorney-General for Victoria seeks leave to challenge theConstitutionality of the law. The Attorney General is joined by the NSW government,which is concerned by the decision to award funding to the Queensland GreyhoundRacing industry to promote what it views as a cruel and irredeemable industry.Channel 7, a sponsor of the Olympics, has been selling t-shirts describing Australia asthe Olympic Sporting Nation and objects to the proposed sale of caps and t-shirts byAustralian National Sports Pty Ltd on the grounds that there is no constitutional powerto support the legislation.You are a graduate solicitor with the Commonwealth's Office of General Counseland are asked to write advice for the Office of Prime Minister and Cabinet onthe constitutional validity of the Commonwealth legislation.
Identify each of the powers the Commonwealth might invoke to support the Commonwealth law and the decisions that would support the conclusion that it is valid.