analyse and critique the efficacy of the Australian sources of law and legal institutions

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) analyze 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 recognizes 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.

 

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.

 

NOTES RELEVANT TO THE COMPLETION OF ASSESSMENT 4

 WHAT = 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.

(1) ‘Efficacy’ means how well something works.

(a) And this relates to the reason you are required to use the factual scenario of

Assessment 2 as a basis 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

(2) 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 solve’ 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.

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 this statement is the ultimate

focus of Assessment 4.

(3) 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.

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(4) 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.

(5) 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).

(6) 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).

(7) 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

(8) 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.

(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, and

mechanisms for legal change. In your assignment, apply the skills and content from the selfassessment

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.

(10) 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

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directions should come from your understanding of the skills and content of the aspects of

Topic 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 cognisant

of each criterion.

(13) 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:

(i) 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;

(ii) a series of well-structured body paragraphs in line with the direction set out in your

introduction that generally contain:

(a) 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;

(b) 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;

(c) 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

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posed. As indicated, within each paragraph, these points ought to draw together to form a

concluding sentence that directly addresses the question.

(iii) 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.

 

 

 

 

 

 

 

 

 

 

 

Factual Scenario

Ben’s Bean Bags Pty Ltd is a company which specialises in the sale of sustainable bean bags.

The company operates in and is registered in the state of Victoria. Ben is the director of the

company.

Soft Seats Pty Ltd is the company which manufactures the bean bags for Ben’s Bean Bags

Pty Ltd. Soft Seats also operates in and is registered in Victoria, and Seth is the director of

the company.

In his capacity as director, Ben sent a written order for 1,000 bean bags to Seth in his

capacity as director. Ben included clear instructions to print a warning label that was in

accordance with the Product Safety (Australia), Mandatory Standards, and to attach that label

to each and every bag. He noted the label must use both red and black ink on white material,

and specified words must be in bold font.

On the basis of the order, Seth manufactured 1,000 bean bags and sent them to Ben. The bean

bags have the Ben’s Bean Bags Pty Ltd logo printed on them.

When Ben inspected the bean bags he discovered that the warning label was printed in black

ink only and without any of words in bold font as instructed and as provided by the

Mandatory Standards. Ben refused to pay and returned the bags to Soft Seats.

Soft Seats Pty Ltd incurred costs of $30,000 for the order. Seth was afraid of losing further

contracts with Ben’s Bean Bags Pty Ltd and so accepted the returned bags. But he also did

not want his company to have to cover the $30,000 in production costs so, rather than

destroying the non-compliant bean bags, he decided to sell them via an online auction site

and to recoup the production costs.

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And so Seth advertised the bean bags as a ‘Buy It Now’ purchase on a wholesale online

auction site. To push things along a little, he included the following as part of the

advertisement:

This advertisement will automatically close in ten seconds. But if you click to buy these bean

bags within that time then they will be available at the fabulously discounted price of $30,000!

To create the advertisement and to enter the auction and to provide the item description and

bidding details, Seth provided the name, ACN and contact details of Ben’s Bean Bags Pty

Ltd. But for the payment, he used the account details of Soft Seats Pty Ltd.

Rita is a sole trader of a small sustainable furniture store in Victoria and she recognised the

company name of Ben’s Bean Bags. She had used the company’s products in the past and

had been pleased with their quality and how well they had sold so she put in a bid of $30,000

and won the auction.

Seth was keen to get the bags off his premises so he delivered the goods to Rita on credit.

When the bean bags arrived, Rita inspected them and was dismayed to discover the warning

label was printed in black ink only and without any of words in bold font. She realised she

could not legally sell them.