LAWS3281 Statutory Interpretation

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LAWS3281 Statutory Interpretation

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LAWS3281 Statutory Interpretation

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Course Code: LAWS3281
University: University Of New South Wales

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Country: Australia

Question

The regulation provides that a student who wishes to be heard on the show cause must lodge a written response with the Registrar in writing by 9:00am one month from the date that the show cause is received. 
Reg 30 provides a student whose residential address during term is more than 500kms from the Campus is allowed an additional five days to provide a response. 
The response to allegations must be lodged by 9:00am on the due date to be considered. 
Sam is at home in Queensland which is an hour ahead due to daylight saving when he lodges his application by email at 9:4Sam. 
In addition, he was confused as to what date was the last day for lodging the response. 
 
It is an ordinary working day in Queensland on the 1st September but a public holiday in the 14T and the Campus is closed. He lodges it on the 2″ September. 
 
Regulation 32 requires the Registrar in assessing any penalty to consider a range of issues. It says in part that the Registrar “Shall consider the past academic record and conduct of the student!’ 
A copy of the format academic transcript for the student was available however the Registrar did not examine it due to a shortage of time. She relied instead on the oral evidence of staff that the student had not been “much trouble” and was “an OK student”. Sam has a medium GPA and has never been dealt with prevlously under the Misconduct Regulations.
 
Regulation 36 provides the Registrar may allow a student to appear in person at the hearing of the 11 complaint if the Registrar forms a view that the allegations are sufficiently serious to warrant a nersonal annearance. 

 
Sam requested permission but it was denied. He sent a written submission outlining why he could make his argument better in person because of his poor skills in written expression but the Registrar declined to read it. 
The Registrar reads all of the available material and finds Sam guilty of attempting to circumvent the assessment process by bringing prohibited materials into the exam. He is sanctioned in writing and awarded zero for the exam but is otherwise allowed to continue his studies. The outcome is noted on his academic record. 
Sam wrote to the Vice Chancellor complaining about the process. You are the University Solicitor. The Vice Chancellor want you to provide a written memo of advice stepping him through the process and the various issues, referring to relevant case law and interpretation legislation in your memo of advice. 

Question 2 
The legislation referred to in this question is invented, don’t go looking for it! 
 
The Commonwealth has established a new University in the NT in Central Australia under the Central Northern University Act 2018 (0-2). The Act allows for the making of regulations. 
 
The Commonwealth has passed the Student Misconduct Regulations 2018 to deal with cheating and academic misconduct. 
 
Sam is reported for cheating in an examination which was held on the Campus in the NT and is now being dealt with under the Regulations. Sam lives over the border in Queensland at Slippery Downs, a grazing property which is around 600kms by road to the NT Campus but much closer by direct flight. 
 
A copy of the allegations is received by Sam by email on the 1st August with a show cause notice issued under the regulations. 

Answer

Subject: Advice on Sam’s Case
The following report gives various issues on the relationship between Sam and the Registrar from a legal standpoint on the issue of his exam malpractice case. The Student Misconduct Regulation Act 2018 (herein referred to as the Act) which is the legislation governing cheating and issues of academic misconduct among the students will be an important authority when assessing Sam’s situation.
A copy of the allegations was availed to Sam on August 1. The Act provides that anyone wishing to be heard should formally write to the register a month after receipt of the show cause by 9:00 a.m. Section 37 of the Commonwealth act in relation to time, provides that the phrase “time” means the standard or legal time in the place where the legislation applies. In this case, the time to be used when determining the deadline of lodging the response was the time in the NT in Central Australia where the campus is located. This is the jurisdiction to which the provision was to apply. Therefore, being 1 hour ahead in his hometown, Sam was still within the working timeframe by submitting his letter at 9:45 a.m.
Sam lodged his response on September 2 and he was definitely within the timeframe given. As provided in section 35 of the commonwealth act, distance shall be measured in a straight line on a horizontal plane. It is immaterial that Sam can easily access NT campus via flight. Thus 600kms between the campus and his home warrants him the privileges of Reg. 30 of the Act. The provision allows students more than 5000kms from the campus an additional 5 days to lodge in their responses.
On the question of whether the registrar must go through Sam’s records prior to issuance of a punishment. Reg. 32 requires the registrar to consider a number of plausible issues prior to issuance of a penalty in such malpractice. The Act expressly states that “The Registrar shall consider the past academic record and conduct of the student.” The NT and commonwealth Acts do not include the interpretation of “shall” in them. However, considering the statutory interpretation given to it in the modern approach, it denotes an imperative command which imposes a legal obligation. Therefore, the Registrar’s failure to review Sam’s academic transcript was a contravention of this provision. She was obligated to review and not even time, in this case, was an excuse for not reviewing. Furthermore, her reliance on other student’s testimonies about Sam was not always going to give reliable information. Sam had a medium GPA and has never been reported in the list of misconduct regulators yet the oral testimonies did not reflect this. The principles of natural justice also demand that any person be given the freedom to be heard. Sam has a right to be heard prior to the sealing of his fate on the foregoing issue.
On the question of whether Sam should be granted personal appearance hearing. Reg. 36 provides that the Registrar may allow the student to appear in person at the hearing if she deems the issue sufficiently serious to warrant personal appearance. Interpretation Acts denote that the word “may” connotes discretion. S 33 (2A) of the Commonwealth Act as well as s 9 (2) of the NSW Act aid in the interpretation of this term. They explain that such a term allows the governing person or authority to choose either to accredit or dismiss. In the foregoing, it is up to the Registrar to choose on whether Sam should be granted personal appearance or not as she deems fit.
However, if brought before court for review, it is likely that the appellate court will undertake an objective test. In the case of Project Blue sky Inc. v Australian Broadcasting authority, the high court opined that in exercising its discretion, the court will consider whether compliance with set provisions was mandatory or directory. The court will look at the purpose of the provision and assess whether the legislators or drafters desired that a breach of such a provision should be invalid. Accordingly, Sam’s reason for seeking a personal appearance in the hearing is that he is poor at expressing himself in writing and would do much better arguing in person. Weighing this with Reg. 36, it is unequivocal that there is sufficiently reasonable basis to warrant personal hearing and there is no justifiable course for not according one. Allowing him the opportunity to be heard would aid achieve a just conclusion.
References
New South Wales (NSW) Act
Project Blue Sky v ABA [1998] HCA 28
Sanson, M. (2012). Statutory interpretation.2nd Ed
Student Misconduct Regulation Act 2018
The Commonwealth Act.

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