This task assesses the following Learning Outcomes:
(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
(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.
The Australian Competition and Consumer Commission (‘ACCC’) states in its ‘Submission to Competition on Policy Review Panel’ 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.
Analyse and critique the efficacy of the Australian legal institutions and sources of law raised in this statement. In your response, apply your analysis to the factual scenario presented to you in Task I.
Efficacy means how well something works. Use the factual scenario as a basis upon which to interpret relevant sources of law and analyse how well these sources work in relation to the scenario. In this way, the scenario is to be used as a basis or example upon which to frame your analysis. Your analysis should be clear, coherent and concise in being specifically based upon this scenario, as opposed to being generalised.
Use your research and initial analysis from Task I as a springboard for your analysis and critique in this task. You do not have to use every source of law you selected in Task I. You may use additional sources of law to those you selected in Task I. However, this is not recommended as the focus of this task is an 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…” and 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.
Your analysis should include a critique of the operation of Australian legal institutions from a variety of historical and theoretical perspectives explored in your research and correctly referenced in your paper. In order to analyse, you are required to draw links between and across these perspectives in order to arrive at your own understandings in answer to the question. However, avoid using personal pronouns in your response, and instead present objective arguments based on an interpretation of various sources of law.
This task specifically relates to topics 4, 5 and 6. As you complete each topic, it is important to apply the skills and content to your understanding of this assignment incrementally in order to develop your response.
In your response, you are required to solve the legal problem of the factual scenario presented to you in Task I. The skills and content of topic 4 (Judge-made law) relates to the application of judicial precedent. Ensure you apply the judicial precedent(s) you deem relevant in your response. The skills and content of topic 5 (Statute law) relates to the rules of statutory interpretation. Ensure you apply the rules you deem relevant in your response.
In your response, you are also required to demonstrate familiarity with the formal and informal institutions and processes which shape the development of Australian law. Possible avenues of informal institutions should arise in your research from a careful review of the Australian Competition & Consumer Commission website which was indicated as a source in Task I.
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. Ensure you apply the skills and content from the self-assessment activities in topic 6 that you deem relevant in your response. In your response, you are required 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 to Syd Bid. These current themes and possible future directions should come from your understanding of the skills and content of the aspects of topic 6 that you deem relevant to the question.
Ensure you read the following extract from the learning site from topic 3 to assist you in developing your analysis.
FINAL NOTE: Ensure you address all aspects of the marking criteria in your response.
Extract from the learning site from topic 3:
Analyse means to identify components and make relationships between them, and to really draw out the implications of content to an argument or analysis. To increase the strength of an analysis throughout your response, a good practice is 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 ‘prove’ 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;
It is important to draft your analysis using examples of primary and/or secondary sources of law by following a ‘HIRAC’ structure. 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, and applying those rules to the question posed. These rules may be applied to facts given in a scenario and/or may be framed as supporting arguments for analytical points made in the context of the question posed. Within each paragraph, these points need 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.
This is not intended to be a prescriptive formula, but an example to assist you in your structure and framing of an analysis within an essay-style response.
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.