Essay LAWS8072: Statutory interpretation Problem – Daniel Case Study – Law Assignment Help

Assignment Task:

Question 1 

Daniel is the convenor of a new course on Privacy being run at the ANU as part of the postgraduate program. The course included weekly discussion-based seminars conducted on the ANU campus over 12 weeks commencing on 24 February 2020. Students in the course were also able to interact with the convenor and other students and get access to materials through the ANU’s on-line teaching and learning environment. That on-line environment was used in all courses taught at the ANU. All seminars were recorded and made available to the minority of students in the course who were unable to attend seminars. 

On 23 March 2020, due to the COVID-19 pandemic, all teaching at the ANU shifted to on-line only teaching. Daniel started conducting weekly seminars by using virtual meeting software available to all students in the course. Seminars continued to be recorded for those students unable to join the meetings. 

On 16 April 2020 the OER contacted Daniel about his Privacy course.. The Commonwealth government had recently announced the release of a new digital contact tracing app (called COVID50+) and the OER was concerned that Daniel’s course would include exploring the app’s privacy implications. The OER wanted an assurance that Daniel would provide students with the views of the Commonwealth government about the privacy protections built into the Act and intended legislative reforms. A failure to provide this material might be considered a breach of Standard 12. The OER requested that she be provided with all the material made available to students enrolled in the course. She has also requested that she be given access to the course on the ANU’s on-line teaching and learning environment as well as the virtual classroom so that she can monitor any further materials and discussion about this issue to ensure that all relevant material has been provided. 

The letter also states that the OER has just registered Guidelines under the Act. The Guidelines state that the OER may require access to all material able to be accessed by students enrolled in any on- line course. The Guidelines also state that the OER may require information on government policies, programs and activities be provided to students. 

The letter also states that if the materials and access to the course is not provided the OER will have no option but to take steps under subsection 9(2) of the Act to inform the ANU and the Minister that she believes that the Privacy course breaches on-line course standards. The OER also indicates that she would consider it appropriate to publish that finding on the OER website. 

Daniel is concerned about the potential interference with his academic integrity as well as the privacy of his students participating in the course. He is also concerned at the impact on both his and the ANU’s reputation of any publication on the OER’s website. 

Advise Daniel on the following questions: 

(a) is clause 11 of the Standard valid?;

(b) is Daniel’s Privacy course an on-line course for the purpose of the Act or otherwise subject to the Standard?; 

(c) are the Guidelines indicated in the letter valid?:

(d) assuming that the answers to questions (a) – (c) are yes – does the OER has the authority under the Act to: 

a. require access to all the material that has been provided to students enrolled in the course;

b. require on-going access to the course so as to monitor any further materials and on-line discussion that takes place; and

c. take the steps she has indicated if the materials and access is not provided. 

You should not consider any Constitutional issues or whether there has been a breach of any natural justice or procedural fairness requirements. 

Question 2 

After the uncertainty over the scope of the OER’s monitoring powers is raised, Parliament urgently passes the Standards for On-line Delivery of Tertiary Education Amendment Act 2020 (Cth) (the Amendment Act). The Explanatory Memorandum includes the statement: 

The [Amendment Act] makes it clear that the OER has always had significant monitoring powers to ensure compliance with on-line standards. The OER will be able to determine the material it needs to assess compliance and any other monitoring powers will be provided for by the Minister in Orders made under the Act. As the COVID-19 pandemic has demonstrated, universities need to respond quickly to changing circumstances, and the OER needs to be able to also respond quickly to ensure that the reputation for quality teaching throughout our university sector is maintained. 

New Orders are registered on the day the Amendment Act receives royal assent. They state that the Orders take effect from the date of commencement of the Act, ie 5 February 2020. They also include the following provision: 

3 Monitoring compliance with on-line course standards 

1. For the purposes of section 6, the OER has the function of monitoring compliance with on-line course standards. 

2. In monitoring compliance with on-line course standards the OER may require access to all material provided to or able to be accessed by students enrolled in any on-line course.