1Legal Institutions and Processes – Assessment 4: EssayDue: By 11 p.m. on Wednesday of Week 7 (NSW time)Weighting: 40%Word Limit: 2,000 wordsLearning OutcomesAssessment 4 assesses the following Learning Outcomes:(5) solve legal problems involving the interpretation of statutes and/or the application ofjudicial precedents(3) demonstrate familiarity with the formal and informal institutions and processes whichshape the development of Australian law.(4) analyse and critique the operation of Australian legal institutions from a variety ofhistorical and theoretical perspectives(6) demonstrate awareness of current themes and future directions in the development ofAustralian law.INSTRUCTIONSIn its document ‘Submission to the Competition on Policy Review Panel’, the AustralianCompetition and Consumer Commission (‘the ACCC’) states the following:The ACCC recognises that private enforcement can be a significant complement topublic enforcement in building compliance and determining anti-competitive conduct.Effective deterrence occurs where sanctions, having regard to the likelihood ofdetection and conviction, outweigh the gains associated with a contravention. Thethreat of increased ‘sanctions’ in the form of damages payouts resulting from privatelitigation can play a vital role in a firm’s consideration of the costs and benefits ofengaging in anti-competitive conduct.1Using the factual scenario provided to you for Assessment 2 as a basis to ground yourdiscussion, analyse and critique the efficacy of the Australian sources of law and legalinstitutions raised in this ACCC statement.Important Note(i) The critical focus of this assessment task is the statement’s assertion of thecomplementarity of private and public enforcement. While the ACCC statement refers toanti-competitive conduct, because the factual scenario in this unit is based on consumer1 ACCC, ‘Submission to Competition on Policy Review Panel,’ Competition Policy Review, 26 November 2014, 79cited in C Beaton-Wells, ‘Private Enforcement of Competition Law in Australia – Inching Forwards?’ MelbourneUniversity Law Review (2016) 39, 690.2law then it is open to you to undertake your critical analysis by focussing on enforcementin consumer law only.(ii) If you wish critically to consider this statement with respect to both anti-competitiveconduct 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 raisedin the ACCC statement. This is the ultimate point and purpose of Assessment 4.(1)‘Efficacy’ means how well something works. (a) And this relates to the reason you are required to use the factual scenario ofAssessment 2 as a basis upon which to ground and to develop your analysis of how well thelaw and legal institutions raised in the ACCC statement are working (rather than undertakingthis exercise in the abstract).Using the factual scenario to establish a grounding simply means to apply the relevantsources 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 tothe facts with that outcome in mind. Remember also to consider how likely or realistic it willbe to achieve those remedies in practice. Your analysis should be clear, coherent andconcisely 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 (andcritique) the operation of Australian legal institutions. The basis of this critique is the rangeof historical and theoretical perspectives sourced through your research. In order criticallyto analyse, you are required to draw links between and across these perspectives to arriveat your own understandings in response to the task.Note: avoid using personal pronouns in your response, and instead present argumentsbased on interpretation and application of various sources of law. In academic work, ‘anopinion’ refers to an opinion informed by relevant sources and developed on the basis oflogical argument – so it is to be evidence-based and able to address contestation. HOW(2) As noted, to ground your analysis you ought to consider how the law is working inpractice. 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 knowor to apply the law with the same level of legal expertise or skill as a trained lawyer, but youare required systematically to consider the application of the generally relevant law to thefacts to get a general sense of likely outcome/s.3Second, on the basis of that application of the law ‘in practice’, analyse and critique howwell the Australian legal institutions and sources of law raised in the ACCC statement areworking. You can see the ‘grounding’ of analysing the factual scenario is so you do not haveto consider the ACCC statement in the abstract. Remember this statement is the ultimatefocus of Assessment 4.(3) Use your Assessment 2 research and initial analysis as a springboard. This Assessment4 requires you to apply those sources of the law to the facts – including, as you deemrelevant, primary (both judge-made law and legislation) and secondary sources – to developyour analysis and critique.(4) The skills and content of Topics 2 and 4 (Judge-made law) relate to the application ofjudicial precedent. Ensure you apply the judicial precedent(s) you deem relevant in yourresponse. The skills and content of Topics 2 and 5 (Statute law) relate to the rules ofstatutory interpretation. Ensure you apply the rules you deem relevant in your response(including relevant case law if applicable). Secondary sources will provide contextualmaterial and arguments which will enable you to develop a critique and argument of yourown. To get you started with secondary sources, a number are listed in the instructions forAssessment 2.(5) In your response, you are required to demonstrate familiarity with the formal andinformal institutions and processes which shape the development of Australian law.Avenues of informal institutions that are potentially relevant should arise as you review theAustralian Competition and Consumer Commission website (which was indicated as asource in Assessment 2).(6) You do not have to use every source of law you included in your Assessment 2Annotated Bibliography, and you may use additional sources of law to those you selected inAssessment 2. However, in the interests of your time, unless you have particular reasonsyou need to do more research (including, for example, the feedback you received forAssessment 2), this is not recommended as the focus of Assessment 4 is analysis and acritique (rather than legal research).(7) You may use any of the readings provided to you in this unit. However, the relevanceof all information included in your response needs to be made explicit by a link betweeneach point and the context of the question. In this response, avoid statements such as ‘Thissource is relevant because…’; instead use statements such as ‘This argument suggeststhat…’ or ‘In applying this premise to the scenario, it is arguable that…’ or ‘This claim issupportive of the critique that…’ etc. WHY(8) This Assessment relates specifically to Topics 4, 5 and 6 and its purpose is to enableyou to demonstrate the skills for those Topics. As you complete each Topic, apply the skillsand content to your understanding of this assignment incrementally to develop yourresponse.(9) 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, andmechanisms for legal change. In your assignment, apply the skills and content from the selfassessment activities in Topic 6 that are relevant to your work.4The other way is to think about our legal institutions and processes at an overall level, todemonstrate that you understand what they are and to demonstrate some critical thinkingabout them – about their strengths and weaknesses.(10) Remember your response requires you to demonstrate your awareness of currentthemes in Australian law relevant to the factual scenario and possible future directions inthe development of Australian law based on the avenues that you consider are availablethrough private actions and public enforcement. These current themes and possible futuredirections should come from your understanding of the skills and content of the aspects ofTopic 6 you deem relevant to the question. OVERALL(11) AGLC referencing and a Bibliography are assessed components of this assignment.(12) Check the marking criteria (in the Marking Guide) and ensure your work is cognisantof each criterion.(13) Read the following extract from the learning site from Topic 3 to assist you to developyour analysis.Extract from Topic 3 learning siteAnalyse means to identify components and make relationships between them, and draw outthe implications of content to an argument or analysis. To fortify an analysis, throughoutyour response it is good practice to ensure that your paper contains:(i) an Introduction that provides a direct answer to the question, sets up an argumentand clearly sets out the contents, direction and parameters of the paper as requiredby the question; (ii)a series of well-structured body paragraphs in line with the direction set out in yourintroduction that generally contain: (a) a topic sentence that clearly and concisely states the main idea of the paragraphin the context of the question – this may be an analytical point drawn from theexamples to follow;(b) sentences that build your arguments about that main idea and provide keyexamples to support it – these examples can include areas of statute law, caselaw, specific arguments raised in secondary sources and/or facts of a scenariopresented in a question;(c) a closing sentence that clearly and concisely wraps up the main point of youranalysis 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) 5 Conclusion (a provisional conclusion about what a court is likely to find/concludingpoint for the paragraph if analytical commentary). This means that in some instances, your paragraphs can be broken up to ensure that youprovide a properly supported analysis by referring to the issues of the question, the rules ofkey cases and/or legislation or other relevant source, and applying those rules to thequestion posed. These rules may be applied both to facts given in a scenario and/or toframe supporting arguments for analytical points made in the context of the questionposed. As indicated, within each paragraph, these points ought to draw together to form aconcluding sentence that directly addresses the question. (iii)a Conclusion that clearly summaries the main arguments in the paper in final answerto the question. Note: this is not a prescriptive formula – rather it is an example to assist you in yourstructure and framing of an analysis within an essay-style response.
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