Commanding the Trend—A Legal Analysis
Introduction
* This paper was first presented at the University of Lucerne, Switzerland by the first author and has benefited from the comments and questions posed by members of the conference.
The first part of this paper addressed exactly what an Internet Referral Unit (IRU) is, and how IRUs are beginning to be constructed across various states. It posited that a statutory IRU would be most likely to succeed in Australia. That paper, however, approached the issue of an IRU through a policy lens, without analysis of the constitutional issues that would arise from any policy decision.
To address the critical question of how an IRU may operate constitutionally in Australia, this paper considers whether the Constitution grants Parliament statutory powers to establish and operate an Internet Referral Unit. This article however will only examine federal legislative power and will not examine whether federal executive power confers the government the right to operate an IRU, which is a joint but separate question (White 2021b; White & Moore 2022). Nor does it explore the international legal basis for any such unit (as might arise from UN Resolution 76/277, for example). It approaches the issue through a federal lens, acknowledging (and notwithstanding) that public order is for the most part a state issue (A-G (Cth) v Colonial Sugar Refining Co. 1913; White 2021b). However, as is apparent from the below discussion, the very nature of the unit being on the Internet results in its operation being within the federal sphere of responsibility. It does not address the pressing concern of how the implied freedom of political communication interplays with IRU operations. The authors used a doctrinal approach, addressing archival evidence and jurisprudence, and relied upon open-source data and statements relating to IRUs.
AUTHORS
Inaugural Cybersecurity Postdoctoral Research Fellow and RUMLAE Associate Researcher
Adelaide Law School
Adjunct Senior Research Fellow
University of New England, Armidale, Australia
Dr. Samuel White is the inaugural Cybersecurity Postdoctoral Research Fellow and RUMLAE Associate Researcher at the University of Adelaide, as well as Adjunct Senior Research Fellow at the University of New England. He has served in both the Royal Australian Infantry Corps and the Australian Army Legal Corps.
Undergraduate law candidate - Adelaide Law School,
Adelaide, Australia
Socrates Giatrakos is a Bachelor of Law (Honours) candidate at the University of Adelaide. He is currently undertaking research with respect to the implied freedom of political communication and executive power. He is also a student editor on the Adelaide Law Review and a Research Assistant at the University of Adelaide.
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Journal of Information Warfare
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