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Assessment 4 Legal Institutions and Processes

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Legal Institutions and Processes

Assessment 4:  Essay

Due:                      By 11 p.m. on Wednesday of Week 7 (NSW time)

Weighting:         40%

Word Limit:        2,000 words

Learning Outcomes

Assessment 4 assesses the following Learning Outcomes:

(5) solve legal problems involving the interpretation of statutes and/or the application of judicial precedents

(3) demonstrate familiarity with the formal and informal institutions and processes which shape the development of Australian law.

(4) analyse and critique the operation of Australian legal institutions from a variety of historical and theoretical perspectives

(6) demonstrate awareness of current themes and future directions in the development of Australian law.

INSTRUCTIONS

In its document ‘Submission to the Competition on Policy Review Panel’, the Australian Competition and Consumer Commission (‘the ACCC’) states the following:

The ACCC recognises that private enforcement can be a significant complement to public enforcement in building compliance and determining anti-competitive conduct. Effective deterrence occurs where sanctions, having regard to the likelihood of detection and conviction, outweigh the gains associated with a contravention. The threat of increased ‘sanctions’ in the form of damages payouts resulting from private litigation can play a vital role in a firm’s consideration of the costs and benefits of engaging in anti-competitive conduct.[1]

Using the factual scenario provided to you for Assessment 2 as a basis to ground your discussion, analyse and critique the efficacy of the Australian sources of law and legal institutions raised in this ACCC statement.

Important Notes

(i) The critical focus of this assessment task is the statement’s assertion of the complementarity of private and public enforcement. While the ACCC statement refers to anti-competitive conduct, because the factual scenario in this unit is based on consumer law then it is open to you to undertake your critical analysis by focussing on enforcement in consumer law only.

(ii) Ifyou wish critically to consider this statement with respect to both anti-competitive conduct and consumer law then that is also open for you to do so.

Each approach is equally acceptable.

NOTES RELEVANT TO THE COMPLETION OF ASSESSMENT 4

  • WHAT

‘What to do’ here is to assess the efficacy of the legal institutions and sources of law raised in the ACCC statement. This is the ultimate point and purpose of Assessment 4.

  • ‘Efficacy’ means how well something works.

(a)  This relates to the reason you are required to use the factual scenario of Assessment 2 as a basis/representative case study upon which to ground and to develop your analysis of how well the law and legal institutions raised in the ACCC statement are working (rather than undertaking this exercise in the abstract).

Using the factual scenario to establish a grounding simply means to apply the relevant sources of law to the facts and then analyse how well these laws are working for your client. Remember you have been asked for advice about potential remedies – so apply the law to the facts with that outcome in mind. Remember also to consider how likely or realistic it will be to achieve those remedies in practice. Your analysis should be clear, coherent and concisely oriented to the facts of this scenario, as opposed to being generalised.

(b)  This basis, this concrete example, provides you with a platform then to consider (and critique) the operation of Australian legal institutions. The basis of this critique is the range of historical and theoretical perspectives sourced through your research. In order critically to analyse, you are required to draw links between and across these perspectives to arrive at your own understandings in response to the task.

Note: avoid using personal pronouns in your response, and instead present arguments based on interpretation and application of various sources of law. In academic work, ‘an opinion’ refers to an opinion informed by relevant sources and developed on the basis of logical argument – so it is to be evidence-based and able to address contestation.

  • HOW
  • As noted, to ground your analysis you ought to consider how the law is working in practice.  Therefore, a logical approach would be a two-step process.

First, to consider the legal problem of the factual scenario presented to you in Assessment 2 – namely to provide advice about the law and remedies potentially available to your client, and the likelihood of being able reasonably to achieve them. You are not expected to know or to apply the law with the same level of legal expertise or skill as a trained lawyer, but you are required systematically to consider the application of the generally relevant law to the facts to get a general sense of likely outcome/s.

Second, on the basis of that application of the law ‘in practice’, analyse and critique how well the Australian legal institutions and sources of law raised in the ACCC statement are working. You can see the ‘grounding’ of analysing the factual scenario is so you do not have to consider the ACCC statement in the abstract. Remember the ACCC  statement is the ultimate focus of Assessment 4.

  • Use your Assessment 2 research and initial analysis as a springboard. This Assessment 4 requires you to apply those sources of the law to the facts – including, as you deem relevant, primary (both judge-made law and legislation) and secondary sources – to develop your analysis and critique.
  • The skills and content of Topics 2 and 4 (Judge-made law) relate to the application of judicial precedent. Ensure you apply the judicial precedent(s) you deem relevant in your response. The skills and content of Topics 2 and 5 (Statute law) relate to the rules of statutory interpretation. Ensure you apply the rules you deem relevant in your response (including relevant case law if applicable).  Secondary sources will provide contextual material and arguments which will enable you to develop a critique and argument of your own. To get you started with secondary sources, a number are listed in the instructions for Assessment 2.
  • In your response, you are required to demonstrate familiarity with the formal and informal institutions and processes which shape the development of Australian law. Avenues of informal institutions that are potentially relevant should arise as you review the Australian Competition and Consumer Commission website (which was indicated as a source in Assessment 2).
  • You do not have to use every source of law you included in your Assessment 2 Annotated Bibliography, and you may use additional sources of law to those you selected in Assessment 2. However, in the interests of your time, unless you have particular reasons you need to do more research (including, for example, the feedback you received for Assessment 2), this is not recommended as the focus of Assessment 4 is analysis and a critique (rather than legal research).
  • You may use any of the readings provided to you in this unit. However, the relevance of all information included in your response needs to be made explicit by a link between each point and the context of the question. In this response, avoid statements such as ‘This source is relevant because…’; instead use statements such as ‘This argument suggests that…’ or ‘In applying this premise to the scenario, it is arguable that…’ or ‘This claim is supportive of the critique that…’ etc.
  • WHY
  • This Assessment relates specifically to Topics 4, 5 and 6 and its purpose is to enable you to demonstrate the skills for those Topics. As you complete each Topic, apply the skills and content to your understanding of this assignment incrementally to develop your response.
  • Topic 6 especially touches on how you have been directed to consider Assessment 4. This is so in two ways. One way is with respect to the practical aspects of invoking the law, litigation, lawyers, alternative institutions and processes, regulation and enforcement, and mechanisms for legal change. In your assignment, apply the skills and content from the self-assessment activities in Topic 6 that are relevant to your work.

The other way is to think about our legal institutions and processes at an overall level, to demonstrate that you understand what they are and to demonstrate some critical thinking about them – about their strengths and weaknesses.

  •  Remember your response requires you to demonstrate your awareness of current themes in Australian law relevant to the factual scenario and possible future directions in the development of Australian law based on the avenues that you consider are available through private actions and public enforcement. These current themes and possible future directions should come from your understanding of the skills and content of the aspects of Topic 6 you deem relevant to the question.
  • OVERALL
  •  AGLC referencing and a Bibliography are assessed components of this assignment.
  •  Check the marking criteria (in the Marking Guide) and ensure your work is cognisant of each criterion.
  •  Read the following extract from the learning site from Topic 3 to assist you to develop your analysis.

Extract from Topic 3 learning site

Analyse means to identify components and make relationships between them, and draw out the implications of content to an argument or analysis. To fortify an analysis, throughout your response it is good practice to ensure that your paper contains:

  • an Introduction that provides a direct answer to the question, sets up an argument and clearly sets out the contents, direction and parameters of the paper as required by the question;
  • a series of well-structured body paragraphs in line with the direction set out in your introduction that generally contain:
  • a topic sentence that clearly and concisely states the main idea of the paragraph in the context of the question – this may be an analytical point drawn from the examples to follow;
  • sentences that build your arguments about that main idea and provide key examples to support it – these examples can include areas of statute law, case law, specific arguments raised in secondary sources and/or facts of a scenario presented in a question;
  • a closing sentence that clearly and concisely wraps up the main point of your analysis in direct answer to the question.

Note:  The ‘HIRAC’ structure is a useful structure for the first/grounding part of your analysis (when applying either primary and/or secondary sources of law). ‘HIRAC’ refers to:

  • Heading (area/aspect of law)
  • Issue (raised by the facts)
  • Rule (to be applied when that issues arises)
  • Application (of the rule to the facts)
  • Conclusion (a provisional conclusion about what a court is likely to find/concluding point for the paragraph if analytical commentary).

This means that in some instances, your paragraphs can be broken up to ensure that you provide a properly supported analysis by referring to the issues of the question, the rules of key cases and/or legislation or other relevant source, and applying those rules to the question posed. These rules may be applied both to facts given in a scenario and/or to frame supporting arguments for analytical points made in the context of the question posed. As indicated, within each paragraph, these points ought to draw together to form a concluding sentence that directly addresses the question.

  • a Conclusion that clearly summaries the main arguments in the paper in final answer to the question.

Note:  this is not a prescriptive formula – rather it is an example to assist you in your structure and framing of an analysis within an essay-style response.


[1] ACCC, ‘Submission to Competition on Policy Review Panel,’ Competition Policy Review, 26 November 2014, 79 cited in C Beaton-Wells, ‘Private Enforcement of Competition Law in Australia – Inching Forwards?’ Melbourne University Law Review (2016) 39, 690.

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