Assignment Task 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 …. 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 [unlawful] conduct.

What - assess the efficacy of the legal institutions and sources of law

‘Efficacy’ means how well something works. And this relates to the reason you are required to work with a factual scenario – it is a basis upon which to ground and to develop your analysis of how well the relevant law is working (rather than undertaking this exercise in the abstract). Thus, apply the relevant sources of law to the facts and then analyse how well these laws are working in relation to those facts. 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.

Your analysis is to include a critique of the operation of Australian legal institutions. The basis of this critique is the range of historical and theoretical perspectives sourced through your research. To critically analyse, you are required to draw links between and across these perspectives to arrive at your own understandings in response to the Task. However, 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

How

As noted, to ground this Assessment you must consider how the law works. Therefore, a logical approach would be first to ‘solve’ the legal problem of the factual scenario presented to you in Assessment 2 – namely to provide advice about remedies potentially available to your client. Please note 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. Then, 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. Remember this statement is the ultimate focus of Assessment 2.

Use your Assessment 2 research and initial analysis as a springboard. This Assessment 3 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 precedents. 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 3 is analysis and 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…’

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.

The skills and content of Topic 6 (Law in Practice) relate to invoking the law, litigation, lawyers, alternative institutions and processes, regulation and enforcement, and mechanisms for legal change. In your assignment, ensure you apply the skills and content from the self-assessment activities in Topic 6 that are relevant to your task.

Remember your response requires you to demonstrate your awareness of current themes in Australian business 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 assignment.

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 in developing 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 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 issue 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 summarises 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.