LAWS8072 Tertiary Education Act Assignment Sample

• Subject Code : LAWS8072
• Subject Name : Law

Statutory Interpretation Problem

(a) Standard 12 which states that the course’s content reflects contemporaneous views associated with the government, as well as the academics along with the other public commentators' is likely to be valid.

A standard established by legislative instruments could be rendered as ‘invalid’ if it is not within the power of the Act. We must consider the purpose, the power of the regulator and the power to establish legislative instruments. ‘The nature and scope of the instrument-making power will depend on the terms of the provision that enables the legislative instrument to be made. To ensure that the legislative instrument is valid, the instrument must be made “within power”.’[1] We must examine the enabling act which is the Standards for On-line Delivery of Tertiary Education Act 2020 (the ‘Act’) to determine whether Standard 12 was within power or ultra vires.

Ambiguity may arise from Standard 12 which requires the content of all courses must reflect a diverse range of contemporaneous views of government, academics and other public commentators. The 'diverse range' and 'contemporaneous views' are not defined quantitatively. The degree of diversity and contemporaneousness can be interpreted narrowly or broadly. Thus, we must take a purposive approach and consider intrinsic material as well as extrinsic material.

Standard 12, which was enabled by Section 7 of the Act, gives OER the authority to establish standards and requires OER to give as conditions to establish a legislative instrument.

Thus, we must examine the purpose of the Standard, which is provided as the objective of the Act in section 3. The purpose of the Act includes to ‘protect and enhance the reputation of Australian higher education providers for excellence and innovation in education’[2], and to ‘to protect students undertaking, or proposing to undertake, on-line courses at an Australian higher education provider by ensuring compliance with world-class standards of quality higher education’[3]. When interpreting the degree of diversity and contemporaneousness, it must be to protect the quality and reputation of Australian education and the students. This has been reaffirmed as a condition in section 7(3)(b): ‘international best practice in teaching in tertiary education’[4]. Requesting course contents to reflect a diverse range of contemporaneous view is, without doubt, help to ensure the education quality and reputation of Australia and to protect students. Education should be used as a tool for brainwashing and propaganda. The role of On-Line Education Regulator (OER) is to establish standards which should serve the purpose of the Act. As such, Standard 12 is within the power established by the Act.

Part 7 (3)(c) as it requires OER to consider ‘potential impact on the available resources and capacities of academic staff at Australian high education provider’[5]. This was set as a condition to establish the standard. The failure to comply with the condition could render invalidity of a legislative instrument according to Section 33 (3AA) of the Acts Interpretation Act 1901. One could argue that the diversity and contemporaneousness required by Standard 12 require too many resources so that OER did not adequately consider s. 7(3)(c) and thus, it invalidates the Standard for ultra vires. That being said, breaching condition by itself may not invalidate an instrument, as per McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian BroadcastingAuthority:

‘(a)n act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition’[6].

In this case, the argument for validity is weak for the above reasons. Standard 12 standalone is likely valid.

(b) The course with which Daniel is imparting his knowledge can be considered as in the form of an online course.

The definition of an ‘online course’ was prescribed as

‘On-line course means a course that is primarily taught:

(a) without students being present on the premises of an Australian higher education provider; and

(b) where the learning methods employed are intended to take advantage of methods of delivery and interaction involving access to the internet.’[7]

The whereabouts of the case study describe Daniel as in the form of a convenor associated with a new course at ANU. The controversy starts with the contents of the new course as it includes all forms of Privacy setup associated with the application. It was further confirmed from the contextual case history that this privacy course program was being run at the ANU as part of the postgraduate program. In terms of the course speculations, it was identified that this course is included in the form of a weekly discussion at the university seminars and was conducted on the ANU campus with a duration of 12 weeks. Although all seminars are recorded for minority students who cannot attend and students can interact with the course convenor over the Internet, the online platform works as an assistant to face-to-face teaching. The course was still taught primarily in a face-to-face environment. It did not fit the definition of an online course as it is not primarily taught without students being on-premise and thus, OER had no jurisdiction in monitoring this course.

However, from 23 March 2020, the course began to be taught online only due to the COVID-19 pandemic. Further to that, the discussion-based seminars moved to online utilising virtual meeting software, which is based on the internet. The course became a course being taught entirely without students at the ANU campus. As such, the Privacy course became an online course according to the definition given by the Act.

(C) Are the Guidelines indicated in the letter valid?

The guidelines indicated in the letter is likely to be invalid.

Several issues could invalidate the guideline and the request made by the OER under the guideline.

Enabling Provisions

Unlike the standard, there is a specific provision in the Act to enable the guideline. It is only mentioned in subsection 8(1)(c): ‘any other information required by the OER in Guidelines made under this Act.’[8]

The ambiguity starts with whether the guideline is a legislation instrument according to s. 8 of Legislation Act 2003. For the guideline to be recognised as a legislative instrument, it must be given power by the 'primary law' to a delegated person to exercise the power. Section 7 of the Act clears says that 'on-line course standards established under this section are legislative instruments'[9]. However, the guidelines are not described anywhere in the primary law as a legislative instrument. It also lacks conditions and scopes description xxx. The guideline may be recognised as a legislative instrument according to s 8(4) if it 'is made under a power delegated by the Parliament’ and ‘it determines the law or alters the content of the law, rather than determining particular cases or particular circumstances in which the law, as set out in an Act or another legislative instrument or provision, is to apply, or is not to apply and has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.’[10] The content of the guideline makes it likely to be recognised as a legislative instrument is it states that OER may require access to materials and information on government policies and activities provided to students, which alters the content of law by giving OER power to request certain information and impose an obligation on providers to provide this information. For this reason, the guideline is a legislative instrument but the ambiguity remains with the enabling provisions. Unless the guideline is recognised as a legislative instrument, the request based on it would be invalid for not having legal power to do so.

Scope of Power

Assuming that the guideline is recognised as a legislative instrument, it would invalid if it tries to expand the scope of power authorised by the enabling Act or to widen the purpose of the Act:

‘Council to make regulations providing for all or any purposes (whether general or to meet particular cases) necessary or expedient for the administration of the Act or for carrying out the objects of the Act….The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.’[11]

The above common law concept was reaffirmed by s. 13 (1)(c) of the LA: ‘any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the person to make the instrument.’[12] The OER request access to all material able to be accessed by students in any on-line course based on the guideline. This is a much wider range of access power from the s.8 of the Act, which specifies the types of documents accessible to be ‘all course descriptions and learning outcomes to be madepublicly available on the higher education provider web site’ and ‘study guides and other information about the achievement oflearning objectives, including the means of assessment,provided to students enrolled in any on-line course before commencement of the course’[13]. The guideline is giving OER power to access documents such as student forum discussions, group selections, recordings, feedbacks and so on. These documents are not necessary for the purpose to ensure the quality of online courses, but rather an intrusion in students’ privacy. The guideline’s attempt to widen the scope of power is obvious and thus, it is likely to render invalidity. It could be argued that s 8(1)(c) authorised OER to access ‘any other information’ required by OER in Guidelines, but the term ‘any other information’ should not be interpreted as ‘unlimited’. The guideline generates too much uncertainty in the documents that OER can access. Although uncertainty may not invalidate the instrument standalone, ‘satisfy, delegated legislation may be held invalid if it is meant todeclare or prescribe a matter but does not do so using an objective standard’[14], as per Dixon J in King Gee Clothing Co Pty Ltd v Commonwealth. The guideline does not provide such standard, and it gives the OER the power to access any documents available to students, despite what the purpose is for. This has gone beyond the objectives of the Act and therefore the guideline is ultra vires.

(a) Section 8 of the Act empowers the OER to request access to information. Assuming the legislation and guidelines are valid, the OER would not have the authority to request access to all material that has been provided to students enrolled in the course as it violates the principle of legality and the time frame provided in the Act does not the support the OER’s request.

Principle of Legality

Requesting to access all the material that has been provided to students which includes a significant amount of personal information violates the Privacy Act 1988.

The request to access all material that has been provided to students contain personal information such as, the name, email, student number of students who are enrolled in the course.

Personal information is defined in Section 6 of the Privacy Act as:

‘Personal information means information or an opinion about an identified individual, or a reasonably identifiable individual:

(a) whether the information or opinion is true or not; and

(b) whether the information or opinion is recorded in a material form or not.’[15]

Although most teaching material does not contain personally identifying information, the letter requests all the material that has been provided to students to be accessible by the OER. This includes forum discussions, assignment feedback, and other information that contain key information to identify an individual, which is categorised as personal information. Thus, we must consider whether such request complies with Australian privacy principles.

‘3 Australian Privacy Principle 3—collection of solicited personal information:

3.1 If an APP entity is an agency, the entity must not collect personal information (other than sensitive information) unless the information is reasonably necessary for, or directly related to, one or more of the entity’s functions or activities.’[16]

According to the above principle, OER can only collect personal information if the information is reasonably necessary for its functions or activities. The OER's functions as described in the Act, in a nutshell, is to ensure the quality of education of on-line courses. Student's personal information, response, and marks are unnecessary for the OER to perform this function. Instead, this information could be easily misused for other purposes, other than the purposes established in the Act. Thus, the request by the OER violates the Privacy Act, which renders the request as unlawful.

Time Frame Issue

On 16 April 2020, when the letter was sent, s.8 (1) of the Act in force at the time set a timeframe for providing information:

8(1) The following information is to be provided to the OER by an Australian higher education provider at least 7 days before the commencement of an online course.[17]

The course commenced on 24 February 2020, the relevant data to provide information would be 17 February 2020. However, at the time, as discussed previously, the course was not an online course. It became an on-line course after 23 March 2020. This scenario is covered by this Act. Since it is not applicable, the education provider is not obligated to provide the requested information within a prescribed timeframe.

The OER does not have authority under the Act to require on-going access to the course to monitor further material and on-line discussion that takes place for the same reasons illustrated in Part a. Besides, it is more likely to be unlawful because it derails further from the purpose of the Act. Ongoing access to the course and monitoring material and on-line discussion is not authorised by the Act. The OER is authorised to establish standards and request information, which has been specified to be course descriptions, assessment and teaching material as per s.8 of the Act. OER is not authorised as the 'big brother' of online courses. This level of monitoring and access has the potential to become a propaganda mechanism working for the government. It would use punitive measures to force course providers to present information relating to government policies in a certain way. That is not a proper cause and there is no way it would be legalised in Australia. This measure is excessive for the OER to perform its functions according to the Act. Furthermore, the Act does not provide the legal basis for an ongoing request for information, as discussed above. Thus, the request is out of power and invalid.

The OER is not authorised to take steps if the materials and access are not provided.

The OER’s letter suggests that unless material and access is provided, she will have not option but to inform ANU and the Minister of the breach of standards and publish the finding on the OER website. The steps the OER intends to take is unlawful for several reasons.

Breach of on-line course standards

Section 8 of the Act does not give the OER power to request ongoing access to course material. As discussed previously, the Act requires providers to provide information 7 days before the commencement of an online course. The date that the material should be provided to the OER is ambiguous. Since the course commenced not as an on-line course, Daniel is not required to provide information before 17 February 2020. However, the OER may argue that the online course commenced on 23 March 2020, when all teaching went on-line at the ANU, and seven days before that day, which is 16 March, is the relevant date to provide the material. This scenario has not been clearly described in the current form of the Act. Ultimately it is a matter to be determined by the Court, but because of the uncontrolled and expected nature of the transformation from offline to on-line, s. 8(1) should not apply if the purposive approach is taken during interpretation.

Besides, assuming section 8(1) applies to the course, the violation of the subsection for not providing the information is punishable as per s. 8 (2) for a civil penalty, but it is not necessarily a breach of on-line course standards. Section 9 does not include s. 8(1) violation as a breach of standards. Unless the current standards contain the obligation to provide information within a timeframe (which is likely to be ultra vires), the OER is not able to establish a breach of standards under the Act.

Natural Justice

It has been thought if the concerned assessment in any particular online-based course has not been completed until the present date the authority needs to follow some necessary steps. These interrelated steps are needed or at times been undertaken by these authorities before the assessment's completion in terms of the catered course are incomplete compulsion with pre-existing standards. Standard 9 requires the OER to inform the instructor of the breach and ‘provide the instructors of the online course with anopportunity to respond to the possible breach’[18] before report the breach under s9(2) of the Act. As such, the indicated steps to inform the ANU and the Minister lacks nature justice and the accused breach of standards is unjustified. The procedure proposed by the OER directly violates s. 9(1) of the Act.

The OER also proposed to publish the breach record on its website according to s. 10 (3)(b). However, the condition to exercise the power is prescribed in subsection 3: ‘the OERis not satisfied that appropriate action has been taken to comply with the on-line course standards then the OER shall notify the following persons that appropriate action has not been taken to comply with the on-line course standards in the future.’[19]

To exercise the power given by s.10 of the Act, Daniel would have to refuse to provide ‘what steps will be taken before the completion of assessmentin the course to comply with the on-line course standards’[20] as required by s.10 (1)(a), and then the OER notified him that no appropriate action has been taken, before publishing the information on the OER’s website. The steps provided in the notice does not indicate these steps so it violates natural justice given in the Act. Therefore, the OER has no authority to take the steps as claimed in the letter.

References for Statutory Interpretation Problem

Legislative instruments – issues in design, No. 102, Legal Briefing, AGS. 26 Feb 2014, from: https://www.ags.gov.au/publications/legal-briefing/br102.pdf

Standards for On-line Delivery of Tertiary Education Act 2020, 3(b) to protect and enhance the reputation of Australian higher education providers for excellence and innovation in education

Standards for On-line Delivery of Tertiary Education Act 2020, 3 (c) (c) to protect students undertaking, or proposing to undertake, on-line courses at an Australian higher education provider by ensuring compliance with world-class standards of quality higher education

Standards for On-line Delivery of Tertiary Education Act 2020, 7 (3) (c) the potential impact on the available resources and capacities of academic staff at an Australian higher education provider in having to comply with any on-line course standards

Standards for On-line Delivery of Tertiary Education Act 2020, 7 (3) (b) international best practice in teaching in tertiary education

Standards for Online Delivery of Tertiary Education Act 2020 No 12345, 2020, at 4.

Standards for On-line Delivery of Tertiary Education Act 2020, 8 (1) (c) any other information required by the OER in Guidelines made under this Act

Standards for On-line Delivery of Tertiary Education Act 2020, 7 (2) On-line course standards established under this section are legislative instruments

LA s8 Definition of legislative instrument (4), from: https://www.legislation.gov.au/Details/C2019C00084

Shanahan v Scott (1957) 96 CLR 245 at 250 per Dixon CJ, Williams, Webb and Fullagar JJ.

Standards for On-line Delivery of Tertiary Education Act 2020, 8 (1) (b) study guides and other information about achievement of learning objectives, including the means of assessment, provided to students enrolled in any on-line course prior to commencement of the course

Legislative instruments – issues in design, No. 102, Legal Briefing, AGS. 26 Feb 2014

S6 Privacy Act, from: https://www.legislation.gov.au/Details/C2020C00168

Privacy Act 1988, Schedule 1, Clause 3, s. 3.1, from: https://www.legislation.gov.au/Details/C2020C00168

Standards for On-line Delivery of Tertiary Education Act 2020, S8 Provision of information to OER (1)

Standards for On-line Delivery of Tertiary Education Act 2020, S9 (1) (b) provide the instructors of the on-line course with an opportunity to respond to the possible breach by indicating: (i) if the instructors of the on-line course believe there has not been a breach of the on-line course standard – why there has not been a breach of the standard:, or (ii) in any event – what steps, if any, will be taken prior to the completion of the assessment in the course to ensure that the course comply with the on-line course standards

Standards for On-line Delivery of Tertiary Education Act 2020, 10 (3) If the OER is not satisfied that appropriate action has been taken to comply with the on-line course standards then the OER shall notify the following persons that appropriate action has not been taken to comply with the on-line course standards in the future: (a) the Minister and (b) members of the public through publication on the OER’s website.

Standards for On-line Delivery of Tertiary Education Act 2020, S (10) (1)(a) if the assessment in the course has not yet been completed— what steps will be taken prior to the completion of assessment in the course to comply with the on-line course standards

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