Principles of Administrative Law

Principles of Administrative Law

Assignment
Instructions
INSTRUCTIONS    2
1. General    2
2. Sources, and avoiding plagiarism    4
3. Answering questions    5
4. Structure of answers and presentation    9
5. Standard of writing    11
6. Style and referencing requirements    11
7. Statement of authorship    12
8. Title page (attached to Part A)    12
9. Printing    12
10. Submission    13
11. Special consideration    14
12. Grading criteria    16
13. Feedback    18

INSTRUCTIONS
Read all of the instructions before attempting the questions.
If you do not follow these instructions, you may receive a penalty as specified, or fewer marks than would otherwise have been awarded.
The Assignment is released in two parts. Part B is expected to be released at the end of Week 12.
1. General
1.1 Marks
Assignment is out of 70 marks for the subject as a whole.
1.2 Marks breakdown
•    Part A is out of 53 marks.
•    Part B is out of 17 marks.
1.3 Examinable topics and material
All of the weekly topics are examinable.
In addition to the prescribed reading for each topic set out in the Reading Guide and referred to in the Subject Learning Guide, the following is examinable material (as per the LMS announcement):
•    2015 primary decision-making legislation for the End-of-Semester Assignment 2015 (as in force at the beginning of semester 2, 2015):
o    Enhancing Online Safety for Children Act 2015 (Cth); and
o    Relevant provisions of the Regulatory Powers (Standard Provisions) Act 2014 (Cth)
o    Any other related legislation that is prescribed and for which a notice is placed on the LMS.
•    Extrinsic material that may assist a court in interpreting this legislation. This comprises:
o    The speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the relevant Bill be read a second time in that House
o    Explanatory Memorandum to that Bill
o    Any other extrinsic material that is prescribed

1.7 Word length
The word limit for the Assignment as a whole is 2,200 words.
The word count includes headings.
The word count does not include footnotes used for referencing purposes.
2. Sources, and avoiding plagiarism
2.1 Acknowledge sources
You should acknowledge any source for answering the Assignment questions.
2.2 Rules and guidelines about avoiding plagiarism
You should be familiar with and compliant with the University rules on avoiding and penalising plagiarism.
2.3 Do not plagiarise
You must not infringe the Academic Integrity Statute 2015 of the University by plagiarising or other forms of academic misconduct.
If you plagiarise, this is academic misconduct. A finding of academic misconduct may have serious consequences for you. See the University subordinate law and policies on avoiding and penalising plagiarism.
3. Answering questions
3.1 Questions to be answered and the order
There are two Parts to this assignment paper. Part B is issued later on. Answer each Part and each question in each Part.
Answer the questions in a Part in the question order presented on the assignment paper. In answering a question ignore material following that question.
3.2 Abbreviations in the question paper
Assume a reference to ‘the Act’ is a reference to the Enhancing Online Safety for Children Act 2015 (Cth).
Similarly, assume a reference to a section is a reference to a section in that Act.
3.3 Assumptions about the facts
Assume the events described in the problems occurred in Victoria, Australia unless it is stated otherwise.
Assume relevant facts occurred after the commencement of the Enhancing Online Safety for Children Act 2015 (Cth), unless it is clear otherwise.
3.4 Parts are self-contained
Write up your answer to each Part in a self-contained way. As each Part maybe examined by an examiner who will not be marking the other Part, do not assume the examiner of a Part will read your answer to another Part.
3.5 ‘Audience’
Unless stated otherwise, assume you are a newly admitted graduate and you are writing answers for a partner in your private firm in the form of a memorandum. You are not writing directly to the client, although your answer in brief could well be relayed to the ‘client’.
3.7 Length and detail expected
The marks allocated for each questionare a guide to how much length and detail is expected.
3.8 Facts and quotations
Do not write lengthy answers. It is not necessary to repeat the facts for the sake of it, and keep any quotations to a minimum.
3.9 What is meant by giving legal advice
If a question asks for legal advice, give proper advice. For example:
•    Do not just give the general principles of the law without applying the law to the facts.
•    Do not give one-sided ‘arguments’ without identifying any competing arguments and attempting to balance and resolve them.
•    Do not ‘answer’ a question by merely saying the issue will, or may, be answered by a court or tribunal.
•    Your conclusion to the question asked must be supported by appropriate legal reasoning.
3.10 If in your opinion the facts as given are incomplete
If you need further information to answer a question, state what that information is and,if possible, how it would affect your answer.
In your answer to a problem you may consider a ‘fact’ not stated in the problem which you have thought of (an ‘additional fact’), as if that fact exists and can be proved. However:
(a)    the additional fact must not be totally implausible (aliens have landed, etc)
(b)    the additional fact must not be inconsistent with a stated or given fact; and
(c)    you must also consider the alternative situation, on the assumption that the additional fact cannot be proved.
3.11 If there are multiple elements to a legal doctrine or statutory provision, you should normally discuss each element with respect to the facts
Legal doctrines and statutory provisions commonly contain more than one element. An element is something that individually needs to be satisfied or met, although all elements need to be satisfied for the doctrine or provision to apply. An example is the duty test for the doctrine of natural justice. A two-stage test applies for applicability. Both stages must be satisfied for the duty to apply. If one (either the first or second stage) is not satisfied, the duty does not apply.
Where students encounter doctrines with elements such as these, students should normally discuss all the elements. (As should a practitioner, unless directed otherwise by the court.  See, for a cautionary tale, Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47.)
Only if, objectively, there is no possibility of one of the elements being satisfied is there no need to discuss the other element(s). Even in this case students should still make the examiner aware of the second element, ie state the general principles. If a student, though not required to do so, does go on to discuss the other elements a student may be accorded some additional marks, but in view of the word limit students must assess whether the effort and space required to discuss the other elements in this situation is a sensible course.
Also, if a student is inclined to take the approach discussed in the previous paragraph (discuss only one element (element 1) in a multi-element law by reason that the element was not satisfied), the student needs to be aware that the examiner may be critical of this approach if in his or her opinion there was a reasonable possibility that element 1 was satisfied. A reasonable possibility does not necessarily mean a likelihood.
Here are some examples:
Example A: element 1 is probably satisfied. Go on to discuss second element.
Example B: element 1 is probably not satisfied or is likely not satisfied. Go on to discuss second element.
Example C: there is no reasonable (objective) possibility of element 1 being satisfied. In such a case you should still state the other elements generally, though it would not be necessary for a pass to discuss the other elements in relation to the facts.
3.12 Give priority to addressing issues raised by express facts
In answering a question about the validity of executive action or some other legal issue, students should bear in mind the need to give priority to express or given facts. If an argument for invalidity is based on express facts pertaining to ground X, this answer will generally be better rewarded than an argument for invalidity pertaining to ground Y which is based on assumed facts: facts that are not expressly given.
This is because, in the former case, there is no alternative argument about what are the facts. Whereas, in the latter case, the argument based on assumed facts is weakened by the availability of a counterargument: if these assumed facts do not exist or cannot be proved, then invalidity cannot be made out.
4. Structure of answers and presentation
4.1 Structure
The assignment answers should be clearly and logically presented having regard to guidelines in the prescribed readings for Statutory Interpretation (Dworsky; Eagleson). It is recommended that, especially for the longer answers, students adopt the following structure or something similar. This includes using the headings below and any added sub-headings.
1.    Question(s) Presented
[State the question you have been asked to address, eg ‘I have been asked to address the question whether Client X has a right to Y.’]
If you wish, in view of the word limit, you could omit step 1.
2.    Brief Answer
[Here you should, as far as possible, give a direct answer to the question presented which is brief and clear. For example, if the question is ‘Is the decision to revoke X’s licence invalid? answer,
‘The decision to revoke X’s licenceis invalid.’
OR
‘The decision to revoke X’s licenceis not invalid.’
OR
‘Although the matter is not free from doubt, my opinion is that the decision to revoke X’s licenceis invalid.’
OR
‘Although the matter is not free from doubt, my opinion is that the decision to revoke X’s licenceis not invalid.’
3.    Discussion
[This section states your reasons for the above answer.
In legal practice a memorandum of advice would set out the facts and assumptions upon which the advice is given. However, in view of the word limit, students should not regurgitate the stated facts. If there are no difficulties with the facts, no factual issues as to what are the facts, and the relevant facts are not incomplete,* then you might say ‘The facts upon which this advice is written are as stated in the problem.’  Alternatively, if you wish, in view of the word limit, you could leave out such a statement.
If there are factual difficulties, issues or incompleteness, you could allude to or discuss them at the outset of the discussion. Alternatively, it may be more convenient to say ‘Subject to the discussion below, the relevant facts are as stated in the problem.’  In the latter approach you raise factual issues where appropriate.
4.    Conclusion
[This section briefly summarises the Discussion section.]
If you have given a Brief Answer as above and your answer does not suffer, you could, if you wish, in view of the word limit, leave out step 4.
*For a comprehensive analysis of the different kinds of factual issues which may arise in a problem set for law students, see Howard Gensler, ‘Law School Examinations and Factual Analysis’ (1997) 31(2) The Law Teacher 198.
4.2 Question numbering
State the question number for each question.
4.3 Typing and font
Times New Roman; 12 point font.
4.5 Paragraphing
Clearly paragraphed. This means leaving extra space between paragraphs.
4.6 Margins
Reasonable margins.
4.7 Page numbering
Pages which are consecutively numbered.
4.10 What NOT to include
Do not include a bibliography or list of references.
5. Standard of writing
In assessing an answer, the standard of English spelling, grammar, punctuation and expression will be taken into account. See grading criteria below.
A higher standard of writing is expected than in a 3.5 hour examination, expected to have edited and proofread their draft answer.
Answers should be concisely written.
How well the answers are structured will also be taken into account. See Structure above.
Do not write entire answers in point form or using dot points.
6. Style and referencing requirements
6.1 AGLC Style
With one exception, in this Assignmentyou must follow the Australian Guide to Legal Citation in matters of style: seehttp://www.law.unimelb.edu.au/mulr/aglc
The exception is that you may use in-text references that substantially comply with the AGLC. An example of an in-text reference is: ‘The owner of a dangerous dog must obtain, as soon as practicable, a licence to own the dog: Dangerous Dog Act 2012 (Vic) s 6.’
However, in-text references count towards the word count. Footnotes used solely for references do not.
6.2 Footnoting
Good writers understand the difference between referencing and footnoting. Do not footnote unnecessarily. For example:
•    Do not say ‘The Z Act contains a definition provision. ’ Say ‘Section X of the Z Act contains a definitions provision.’
•    Do not say ‘Section 6  refers to X and Y.’  Say ‘Section 6 of the ZActrefers to X and Y.’

12. Grading criteria
Please see the following tables for assessment criteria.
ILO number and principal assessment criterion    A grade — guide or exemplar
B grade — guide or exemplar    C grade — guide or exemplar    D grade —
guide or exemplar    Not satisfactory grade — guide or exemplar

[ILO 1]
1. Be able to locate, analyse and interpret previously unfamiliar primary decision-making legislation, and relevant extrinsic materials.
Demonstrates the ability to locate the unit of inquiry and to identify a full range of legislative provisions that influence the meaning of the unit of inquiry    Demonstrates the ability to locate the unit of inquiry and to identify some other relevant legislative provisions    Demonstrates the ability to locate the unit of inquiry.    Demonstrates the ability to locate the unit of inquiry.    Does not demonstrate the ability to locate the unit of inquiry/in wrong unit of inquiry.
Demonstrates the ability to analyse and synthesise related provisions in a statute.    Demonstrates the ability to analyse in some detail a relevant legislative provision.    Demonstrates the ability to analyse a relevant legislative provision but does not express the result clearly    Makes mistakes in attempting to analyse a relevant legislative provision.    Does not demonstrate the ability to analyse a relevant legislative provision.
Demonstrates the ability to interpret legislation at a detailed level. Opposing constructions are well formulated. The weight of each construction is considered having regard to multiple interpretative factors.    Demonstrates the ability to interpret legislation using a multifactorial approach. Opposing constructions are formulated.The weight of each construction is considered having regard to multiple interpretative factors.    Demonstrates the ability to interpret legislation to the extent of raising a(one) construction. Shows some ability to support a construction with an interpretative factor.    Demonstrates the ability to interpret legislation to the extent of making an interpretative argument, but the constructions are not well-expressedor expressed at all, and are not well supported.    Does not demonstrate the ability to interpret legislation, more than reading the legislation literally.
Demonstrates general knowledge of interpretative method and interpretative criteria, but misapplies the knowledge – does not apply to correct unit of inquiry.

ILO number and principal assessment criterion    A grade — guide or exemplar
B grade — guide or exemplar    C grade — guide or exemplar    D grade —
guide or exemplar    Not satisfactory grade — guide or exemplar

[ILO 2]
2. Be able to compose legal opinions which address, in an informed way, a range of problems calling for advice based on Administrative Law.
Demonstrates the ability, in a detailed and cogent fashion, to compose a legal opinion.
The answer reasons to conclusions about issues of law or fact by reference to detailed competing arguments.
Demonstrates the ability, in a reasonably comprehensive manner, to address the issues of law and fact raised by the problem within the word limit and other objective constraints.
Demonstrates the ability to compose a legal opinion that is generally accurate so far as it goes. Shows some ability to canvass competing arguments but is not detailed in this regard. May not discuss a comprehensive range of issues.    Demonstrates the ability to compose a legal opinion that, so far as it goes, applies the law to the facts accurately in most respects. But it lacks depth of analysis or insight, is or tends to be superficial and one-sided in argumentation, and does not recognise a comprehensive range of issues.    Demonstrates the ability to compose an opinion that recognises some Administrative Law issues, but makes significant errors of law or fact, or omitsdiscussion of some important issues.    Does not demonstrate the ability to give a legal opinion that is accurate for the most part.
Makes fundamental errors of law or fact.
Displays abstract or general Administrative Law knowledge but not the ability to recognise relevant Administrative Law issues in a problem solving context and apply the law to the facts.
In a question requiring multiple issues to be addressed, does not identify an adequate range of issues.
Presents conclusions without any reasons.
Does not communicate the substance of the legal opinion clearly, or is incoherent for the most part.

ILO number and principal assessment criterion    A grade — guide or exemplar
B grade — guide or exemplar    C grade — guide or exemplar    D grade —
guide or exemplar    Not satisfactory grade — guide or exemplar

[ILO 3]
3. Be able to formulate, by means of legal drafting, the possible outcome of an application to an Administrative Law review mechanism    Legal drafting of court orders, tribunal decisions, Ombudsman recommendations etc is appropriate, has utility, is legally accurate, is precisely and clearly expressed, is in proper form, and is reasonably comprehensive.    Legal drafting of court orders, tribunal decisions, Ombudsman recommendations etc is appropriate as far as it goes, has utility, is legally accurate, is precisely and clearly expressed, and is in proper form. But it is not reasonably comprehensive.    Legal drafting of court orders, tribunal decisions, Ombudsman recommendations etc has utility, is generally clear and legally accurate, and is in proper form. But it is not precisely expressed and is not reasonably comprehensive.    Legal drafting of court orders, tribunal decisions, Ombudsman recommendations etchas some utility. But it is not legally accurate, not precisely and clearly expressed, not reasonably comprehensive, and not in proper form.    Legal drafting of orders, decisions, recommendations etc is not appropriate, does not have utility, is fundamentally legally inaccurate, or is not clear for the most part.

[ILO 4]
4. Be able to evaluate whether a client’s goals are likely to be achieved by any recourse by the client to an Administrative Law review mechanism.    Demonstrates the ability to evaluate, in a cogent mannerand having regard to detailed and competing arguments, whether recourse to an Administrative Law mechanism would meet a client’s goals.    Demonstrates the ability to present detailed reasons why recourse to an Administrative Law mechanism would or would not meet a client’s goals.    Demonstrates the ability to give some reasons why recourse to an Administrative Law mechanism would or would not meet a client’s goals.    Demonstrates the ability to give a possible reason why recourse to an Administrative Law mechanism would or would not meet a client’s goals.    Does not demonstrate the ability to evaluate whether recourse to Administrative Law mechanism would meet a client’s goals.
Does not give reasons why recourse to an Administrative Law mechanism would or would not meet a client’s goals.