Question 1 (35 marks)

It is 2025 when the law firm in which you work is approached by Mr Diggory.

Mr Diggory is an engineer specialising in tunnelling. He has no legal expertise.

Mr Diggory is a director of the Suburban Rail Loop Authority, that is, he is a member of the board of directors of the Authority. He was appointed by the Governor in Council on the recommendation of the previous Minister for a 4 year term. The previous Minister was an engineer by background. Mr Diggory has served one year so far as a director.

Mr Diggory informs you that there are no vacancies on the current board of directors. He tells you that he is one of three engineers with tunnelling expertise on the board. The other two were appointed before him.

Mr Diggory shows you a letter he has received from the current Minister. It reads in part:

Because there are three experts in tunnelling and no lawyers with appropriate legal expertise on the board I regret that I need to replace the most recently appointed engineer with tunnelling expertise on the board of directors with someone with appropriate legal expertise. I am accordingly proposing to recommend to the Governor in Council that you be removed from the board, at the first available meeting of the Executive Council, pursuant to s 24(2)(d) of the Suburban Rail Loop Act 2021. Out of an abundance of caution, I am giving you the opportunity to present a case against your removal before I make any recommendation to that effect.

Mr Diggory is fairly incensed at the letter. He asks your firm to present a case to the Minister and if necessary represent him in civil litigation.

Your manager at the firm, Ms Pointy, asks you to answer this question: whether the Governor in Council could be satisfied under s 24(2)(d) of the Suburban Rail Loop Act 2021 ('the Act') (so that Mr Diggory could be removed upon a recommendation of the Minister to that effect). In the course of answering that question, your Manager asks you to give detailed consideration to the interpretation of the words 'any other ground' in s 24(2)(d). In other words, treat those words as the unit of inquiry.

In answering the question assume that, apart from s 24(2)(d), formal requirements for removing Mr Diggory have been or could be met. (This includes any natural justice requirements.)

Assume there is no evidence for s 24(2)(a), (b) or (c) of the Act to be relied on.

Assume s 24(3)(a) and (b) of the Act do not apply to the circumstances you are presented with.

For the format and other requirements pertaining to your answer, see Assessment Details below.

Instructions and assessment details

Please see the Subject Learning Guide on the LMS for allocated marks, due date, word limit, intended learning outcomes, special consideration, university policies that apply to graded assessment and the assessment criteria and marking guide.

Parts

This is Part A of the Assignment. The Part B Question Paper will be released separately. Although the Question Paper is issued in two parts, the Assignment submission has one due date and the answers to Parts A and B are submitted together in the one document.

Format

In answering a question that raises general principles (Weeks 1-8) but not special issues (Weeks 9-11), students should as far as possible use and follow the problem solving template provided with the question paper. In answering a 'special issues' question, students should as far as possible follow any appropriate model issued for handling that issue. If no such model has been issued, use the problem solving template (adapted as necessary).

Assessable topics and materials

The assessable topics are primarily Weeks 1-11 topics. Students are also expected to demonstrate knowledge of relevant assumed skills and knowledge.

The Suburban Rail Loop Act 2021(Vic) ('the 2021 Act') is examinable. Assume it is operational at relevant times.

If, to define a term in the 2021 Act or for other purposes that Act refers to another Act, students are expected to examine that other Act as far as it is relevant. This includes (if the unit of inquiry was inserted by an amendment Act) that amendment Act.

Students are expected to obtain, examine, and draw on where they are useful the following extrinsic parliamentary materials:

• the Explanatory Memorandum to the Suburban Rail Loop Bill 2021
• the Statement of Compatibility for the Suburban Rail Loop Bill 2021
• the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Suburban Rail Loop Bill 2021 be read a second time in that House.

Apart from finding and examining the above material, students are not expected to engage in legal research.

Preparatory steps

Before attempting the problem, it is recommended that students attempt one or more of the End-of-Semester Assignment sample questions on the LMS and self-assess using the answers provided.

How the answer is to be produced

The End-of-Semester Assignment is not a group assignment. You must produce it independently. Among other things, you must not work on the problem with another student or distribute your written answer or a written draft of an answer to another student. See the Subject Learning Guide for further information.

Use of facts and information

If you think a material fact ('fact X') pertaining to the problem is not set out on the Question Paper, you may consider fact X as if it exists or can be proved to exist, provided it is plausible and that you also consider the alternative situation where fact X does not exist or cannot be proved to exist. This is standard advice with regard to legal problem solving and is not to be taken as a suggestion that a material fact is not stated in the problem.

Similar advice applies to any information set out in the problem on the Question Paper, which you regard as ambiguous. If the ambiguity is plausible, then make the most probable inference or give alternative advice based on each scenario. This is standard advice with regard to legal problem solving and is not to be taken as a suggestion that information in the problem is ambiguous.

Meaning of 'interpretation'

To 'interpret' a unit of inquiry in legislation includes framing competing constructions (proposed meanings) of the unit of inquiry. The unit of inquiry refers to the words of legislation whose meaning is in doubt. It is normally a legislative provision or an element of a provision.

Constructions should promote the interests or the position of the parties in the problem.

Each of the competing constructions should be supported by arguments, so that the interpretation is as fully informed as possible. For further guidance as to what is expected of 'interpretation', see the assessment criteria in the Subject Learning Guide.

Tutors

Your tutor is available to answer any general question you may have about a Week 1-11 topic and the general meaning of a section of the template. But he or she cannot assist in analysing the legislation or in answering the assignment question. Nor is your tutor available to explain the meaning of ordinary English words or legal words in the question. Students should access appropriate dictionaries.

Style and referencing

Subject to the following, follow the 4^th edition of the Australian Guide to Legal Citation. See link at .

You may use in-text references instead of footnotes for references. In-text references are references that are put in parentheses in the middle of a sentence, or are put after a colon at the end of a sentence. The references generally follow AGLC style for the first reference to an Act or a case. But, for a second or subsequent reference, they do not need a cross reference to an earlier footnote. In-text references thus may save on cross references that would be employed if footnotes were used. If kept reasonably short, they are also easier to read, for the reader is not forced to break their reading of the body of the answer and read the footnote. For example, the style may be used with respect to cases, as follows:

In Dog v Cat ((2020) 204 CLR 227), the High Court appears to have propounded the principle that dogs make better friends than cats: 239 [87]. In the same case, the Court made obiter comments about the friendship qualities of guinea pigs: 240 [88]. .... In the Dog case the Court also made obiter comments about the friendship qualities of rabbits: 240 [90].

The High Court has propounded that dogs make better friends than cats: Dog v Cat (2020) 204 CLR 227, 239 [87].

The same style may be used with respect to legislation. For example:

Sections 33-6 of the Dog Act 2020 (Cth) list the friendship qualities of dogs.

The Dog Act 2020 (Cth) lists the friendship qualities of dogs (ss 33-6), but these should not be taken to be exhaustive.

Although the Dog Act 2020 (Cth) (rightly) does not list the friendship qualities of dingoes, the Act does list the friendship qualities of dogs: ss 33-6.

In-text references are often employed in legal writing, for example, Yucesan (Week 2 tutorial case), R v PJ (Week 4 tutorial case), BGM16 (Week 6 tutorial case).