Problem Solving Questions

Problem Solving Questions

LAWS314 Assessment Task Three, Semester 1, 2023

Total Marks = 50

Answer the following three questions using a problem solving template for each question (a total of three templates).

Facts:

The High Speed Rail Authority Act 2022 (Cth) received royal assent on 12 December 2022. Assume the Act is now in force.

The Commonwealth Government recently posted the following press release on the website for the Minister for Infrastructure, Transport, Regional Development and Local Government;Get on Board the High Speed Rail Authority

The Australian Government continues to deliver on our commitment to establish a High Speed Rail Authority and has begun the search for Board members who will guide the development of the high-speed rail network.

There will be a merit-based process to select the Board members, including the Chair, to ensure the Board is comprised of people who have the appropriate skills, qualifications, knowledge and experience to best bring high speed rail to reality.

Experts from the rail and infrastructure sectors, as well as planning and financing are encouraged to apply.

The HSRA will be an independent body tasked with advising on, planning, developing and overseeing the construction and operation of a transformational network along Australias eastern seaboard.

A high-speed rail network will allow passengers to travel between major cities and regional cities at speeds exceeding 250 kilometres per hour.

The merit-based process will identify suitable candidates for appointment by the Minister. Applicants will be assessed by an Australian Government selection panel against specific criteria.

Applications should be emailed by 11:59pm on Wednesday 15 March 2023.

Answer the following questions with respect to the High Speed Rail Authority Act 2022 (Cth), utilising any legislative history materials relating to the Act, any legislation operating in pari materia and all other relevant materials.

Question 1 20 marks

Olivia de Havilland is an experienced rail industry entrepreneur of some 30 years having worked in France consulting on the TGV for the last 20 of those 30 years. Recently Olivia has been recognised by the Business Council of Australia for her contribution to transport innovation.

After a rigorous interview process, Olivia is appointed as the full-time Chair of the High Speed Rail Authority Board (the Board) on 25 March 2023 by written instrument from the Minister.

After resigning from her consulting role in France, Olivia prepares to take up her position as Chair of the Board. Olivia started as Chair of the Board on 1 April 2023.

On 27 April 2023 she received a phone call from the Department of Infrastructure, Transport, Regional Development and Local Government. She was told that some irregularity with her application for her appointment as Chair had been discovered. Three days later, on 30 April 2023, she received a letter from the Minister which stated:

Dear Olivia,

Regrettably, I must terminate your appointment as Chair of the High Speed Rail Authority Board in accordance with s 24(a) of the High Speed Rail Authority Act 2022 (Cth) due to your failure to disclose an interest in Rail Link Pty Ltd. That company has submitted a bid for a tender to lay high speed rail from Melbourne to Brisbane.

I wish you all the best for the future.

Kind regards,

The Minister for Infrastructure, Transport and Infrastructure and Local Government

Olivia is perplexed by the decision of the Minister. She hasnt held shares in Rail Link Pty Ltd since December 2020.

From the point of view of statutory construction, has the Ministers decision to terminate Olivias appointment been lawful? Consider the issue from the perspectives of Olivia (Appellant) and The Minister (Respondent). Use all the relevant interpretive criteria in your answer.

Question 2 20 marks

Jimmy Durante was appointed, by written instrument, as a part-time member of the Board on 31 March 2023.

The Board has met four times in two weeks since it was formally constituted on 1 April 2023. At two of those meetings, only the Chair and another Board member were present. Jimmy attended the first meeting but missed the next three meetings because he was overseas selling his hiking business in Chile. He mentioned to the Chair that he might be absent from meetings for a while, but did not submit a formal application to be excused from any of those meetings. Jimmy returned to Australia at the end of April.

On 5 May Jimmy received the following letter from the Minister:

Regrettably I must terminate your appointment as a Member of the High Speed Rail Authority Board in accordance with s 24(e) of the High Speed Rail Authority Act 2022 (Cth) due to your absence from three consecutive meetings without formal authority. Furthermore, your employment conflicts with the proper performance of your duties as a Board member and your general duties as an official of a Commonwealth Government authority.

I wish you all the best for the future.

Kind regards,

The Minister for Infrastructure, Transport and Infrastructure and Local Government

From the point of view of statutory construction, has the Ministers decision to terminate Jimmys appointment been lawful? Consider the issue from the perspectives of Jimmy (Appellant) and The Minister (Respondent). Use all the relevant interpretive criteria in your answer.

Question 3 10 marks

Six weeks after the Board is appointed, the Minister, by legislative rule, gives the following direction to the Chair and Members:

To the Chair and Members of the High Speed Rail Authority Board,

By the power vested in me by s 50 of the High Speed Rail Authority Act 2022 (Cth)(the Act) and in accordance with s 11 of the Act I give the following directions:

Under no circumstances will the High Speed Rail Authority Board appoint members of staff who reside in Melbourne, Sydney or Brisbane to the High Speed Rail Authority without express written permission from the Minister for Infrastructure, Transport and Infrastructure and Local Government.

Penalty: 10 penalty units per Board Member.

From the perspective of statutory construction, is the Ministers direction lawful? Consider the issue from the positions of the Board (Appellant) and The Minister (Respondent). Use all the relevant interpretive criteria in your answer.

Totals Marks = 20 + 20 + 10 = 50

End of Assignment

Assessment Task 3 - Problem Solving Template

Brief answer:

The section or subsection and the words in doubt:

Construction for the Appellant:

Construction for the Respondent:

Analysis for the Appellant:

Provision

Act as a whole

Legislative History

Wider Context

Analysis for the Respondent:

Provision

Act as a whole

Legislative History

Wider Context

Evaluation:

Conclusion: