Government Contracting Act 2007 - Sexual Harassment - Law Assignment Help

Assignment Task:

Question 1

The Northern Territory government enacted the Government Contracting (Sexual Harassment) Act 2007 (NT) (“the Act”) with the object of addressing sexual harassment in companies that contract for government-funded projects. The Act provides that the government will not contract with companies unless they are first registered under the Act. The Act includes the following sections:

14. If an applicant company satisfies the Minister that it complies with the regulations made under this Act, the Minister may register the company under this Act. 

15. (1) The Administrator may make regulations necessary or convenient for carrying the Act into effect. 

(2) Without limiting the generality of subsection (l), the Administrator may make regulations: 

(i) regulating the types of grievance procedures a company must have in place in order to qualify for registration; 

(ii) relating to the development and implementation of workplace training against sexual harassment required to qualify for registration. 

After the Act came into effect the Government Contracting (Sexual Harassment) Registration Regulations were made and duly published in the NT Gazette. These regulations included: 

Reg. 5 A company registered under the Act must ensure that no sexual harassment occurs at its workplace. 

Reg. 6 In relation to existing contracts with the government, the Minister may terminate the contract if the Minister is not satisfied that the company has a good reputation with respect to sexual harassment. 

Security Software Pty Ltd, which holds a current NT government IT contract (and has a long history of performing such contracts), seeks registration under the Act. The company has never had a complaint of sexual harassment against it, although it has recently received publicity about a number of racial discrimination and disability discrimination actions proven against it. In fact, the company has highly developed policies and training programs relating to sexual harassment. Under some pressure to improve workplace behaviour and diversity in the workplace, the Minister refuses to register the company and cancels the company's contract. 

Advise Security Software concerning any action it might be able to take to challenge the regulations, the Minister's cancellation of the contract, and the Minister's refusal to register the company under the Act.

Question 2:

The Childcare Association (NT) (“the Association”) is a non-statutory body that controls the grant, renewal and revocation of licences to run what have become the most popular childcare centres in this state. It maintains a register of "Association approved” childcare centres. Its rules provide that the Association may grant or cancel licences upon considering the recommendations of its Licensing Sub-committee (the Committee). The rules provide further that no person or company may operate an "Association approved" childcare centre in the Northern Territory without a licence from the Association. 

Andre and Betty held a licence to operate an "Association approved" childcare centre between 2009 and 2012, when they opened a private school in a suburb of Darwin. Betty is an experienced educator with post-graduate qualifications and many years of experience running educational institutions throughout Australia, but Andre is a Brazilian migrant who only arrived in Australia in 2008 and still has to attend remedial migrant English classes every week. The parents of the school have approached the couple about care for the younger siblings of the school children. Accordingly, Andre and Betty apply for renewal of their old licence which has now lapsed. 

Their application goes before the Committee which places a notice in the newspaper publication "Darwin's Child" to the effect that the Association will consider Andre and Betty's application at a specified time and place. Prior to the meeting, a former employee of the couple, Will Tell, sends the Committee a brochure in confidence which he alleges was written by Betty. The brochure is entitled "Squeezing the Lemon: How to maximise your entitlement to Childcare Rebates". 

Andre attends the Committee's advertised meeting. The Committee informs him that it has questions about the fitness of himself and Betty to run a childcare centre. Andre then asks the Committee to specify the allegations made and requests an adjournment so that Betty can attend in person, and so that they can obtain the services of a lawyer to advise them and appear on their behalf in order to effectively question any witness that has evidence against them and make appropriate legal submissions. The Committee refuses his request and retires to consider the application. As the new minute taker for the Committee, Will Tell attends but does not contribute directly to the deliberations of the Committee. On the recommendation of the Committee, the Association refuses Andre and Betty's application. 

Andre and Betty wish to challenge the refusal to grant a licence on the grounds of denial of procedural fairness. Advise them.

Question 3: 

The Territory Teachers Act 2008 (ACT) provides: 

s 4: A Territory Teaching Service (Service) is hereby established to provide quality, non-coercive education which will enhance the skills and creativity of children.

 s 10(1): The ACT Executive may make regulations for the purpose of regulating the Service and in particular for: 

(a) ensuring that teachers are suitably qualified for their teaching tasks; 

(b) determining which activities can safely be conducted in the classroom; 

(c) determining the composition of classes; and 

(d) conferring powers or imposing duties on teachers. 

You may assume that there are no other relevant provisions of the Act. The ACT Executive makes the Territory Teachers Regulations 2009 as follows: 

reg 1: No teacher may be employed by the Service unless the teacher submits to a medical examination in January of each year.

reg 2: A teacher may impose a fine of up to $5.00 on any student involved in an incident which endangers another student in the classroom. 

reg 3: A teacher may detain a student for up to 3 hours outside school hours.

reg 4: A teacher shall teach a class of students with disabilities if required to do so by the Director of Education (Director). 

Advise the Teacher’s Union on the likelihood of the success of a challenge to the validity of the Territory Teachers Regulations 2009 (ACT).

Question 4:

NB To tackle this part of the tutorial successfully you will need to have studied the notes on procedural narrow ultra vires, and have read Project Blue Sky v Australian Broadcasting Authority (1998) 152 ALR 490. 

Assume that by-law 24 of the By-Laws of the City of Redochre provides as follows: 

24. (a) The Council may by resolution regulate and control the flow of traffic on any part of any road within the City for a period not exceeding six months. 

(b) A copy of any intended resolution shall, three weeks before the date of passing of the resolution, be sent to every occupier of land affected thereby, and shall be advertised by public notice in any newspaper circulating within the City during each of the three weeks preceding the passing of the resolution. 

(c) Any such resolution shall not take effect until the same is approved by the Minister and published in the Gazette. 

Any person who breaches the terms of any such resolution is guilty of an offence and is liable to a fine not exceeding $200. 

Parker applied to the Council for a permit to extend her Motor Vehicle Repair Workshops in Pitt Road, but the Council refused to grant her a permit. She appealed to a Local Government Appeals Tribunal against the refusal. The following day the Council instructed its officers to send out copies of a proposed resolution pursuant to By-law 24(b). Copies of the proposed resolution were in fact sent out on 30 September. Parker received it on 3 October. Advertisements appeared in the only newspaper circulating within the City on 5, 8, 21 and 22 October. No advertisements appeared between 8 and 21 October because of a printers' strike. 

The Council passed the resolution on 24 October in these terms: 

'Pitt Road is hereby permanently closed to all traffic for a period of two months from today's date. At the expiration of two months the Clerk, may by notice in writing signed by him and served on any occupier of land affected thereby, make further provision for the regulation and control of traffic in Pitt Road for a period not exceeding one month.' 

By an error, a notice of the meeting at which the resolution was passed was sent to a recently deceased councillor instead of to her elected successor. Two of the ten councillors who attended the meeting are the owners of other Motor Vehicle Repair facilities in the City. P a g e | 3 LWZ304 Administrative Law Tutorials Author: Ken Parish Last revised: 29 March 2015 

The resolution was approved by the Minister on 28 October and published in the Gazette on 12 November. On 1 November the Council closed off Pitt Road by erecting barriers at both ends preventing all vehicular access to Parker's factory. On 10 November Parker, frustrated by recent events, drives her delivery van through the Council barriers in order to deliver some furniture she had contracted to sell. She is subsequently charged with and convicted of an offence under by-law 24(d). 

Parker wishes to appeal against her conviction and obtain a declaration that the closure of Pitt Road is unlawful and invalid. What arguments would you raise on her behalf, and what are her chances of having her conviction quashed and a declaration made in her favour?

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