Legal Practice Research Assessment

Students must answer all of the five research questions listed below. Questions 1-4 are each worth 10 marks. Question 5 is worth 15 marks. An additional 5 marks are allocated to Referencing and bibliography. Thus, the assignment will be marked out of 60 and then converted to a mark out of 20 (rounded to the nearest half-mark). The word limit is strictly 2500 words, excluding any questions, headings, footnotes and bibliography.

In presenting each answer, students must:

1. give an outline of their research plan
2. explain the steps taken to find the relevant law
3. identify when and how any relevant statute law(s) came into force
4. reference their work according to the Australian Guide to Legal Citation (Melbourne University Law Review Association Inc, 4th ed, 2018) and include a bibliography
5. include legal authority for all propositions of law using pinpoint references
6. comply with the marking criteria and guidance contained in the unit Supplementary Material.

Research questions:

1. Explain the current legal status of:
   1. Brodie v Singleton Shire Council; and
   2. Teori Tau v Commonwealth.
      [10 Marks]
2. In reference to local government in NSW:
   1. What is meant by the term ‘rate pegging’?
   2. What law forms the basis of rate pegging?
   3. Citing authority, what is the current annual rate peg limit?
   [10 Marks]
3. What process needs to be followed for a party to enforce an arbitrator’s award? Consider both NSW law and the Commonwealth.
   [10 Marks]
4. Locate and briefly explain the latest case in which the High Court of Australia considered the limits of quantum meruit as a restitutionary remedy.
   [10 Marks]
5. Discuss the mechanism by which treaties and conventions may become Australian law by comparing the implementation (if any) in Australia of:
   1. the Convention Relating to the Status of Refugees; and
   2. the Vienna Convention on Diplomatic Relations
   [15 Marks]

How to Answer

Dear Students,
I have some emails from students asking 'how do I set out this assignment?' For example:
RE: Assignment 1.

explain the steps taken to find the relevant law 
Is it appropriate to show our steps as below?

EXAMPLE:

• UNE library homepage > Databases> Law & Justice > Lexis Advance Pacific> Advanced Search: AU Cases> Terms: animal! w/p liab! and owner and damag! > 304?????results
• Jurisdiction: NSW > 95 results
• Search within Results: personal injur! > 42 results, including Sarkis v Morrison [2013] NSWCA 281 (30 August 2013)

Thank you,

My answer in that case would be that the student was generally on the right track for part (ii). But, it helps to include some of the thought processes behind the steps, rather than just the steps themselves. Also, do not forget the other elements (i) and (iii)-(vi) set out on the question sheet.

Setting out the methodology may not be intuitive, so I have included below some suggestions which I have collated and adapted from my various Moodle postings over previous trimesters. It includes some general advice on possible ways to present the answers. This is not a formula, but students who have followed similar advice from me in the past have generally succeeded in the research assignment.

Part (i) - the plan - is open to a degree of personal interpretation, but needs to be clear. Identifying and defining the key terms is a worthwhile element in almost all plans. By its nature, a plan will be somewhat abstract - but it cannot be too vague or generalised. For example:

• "I plan to search for information in CCH online" is so abstract as to be almost useless.
• "Read Constitutional Law in NSW by Joseph Bloggski for background" might be too specific. The chosen text may prove to be no help in this instance. Better to say "Locate a relevant text and read for background."

So, the foundation of a simple plan might be:

• Understand the topic;
• Search for relevant statutes using keywords x, y and z;
• Read the relevant statute;
• Establish when the statute (relevant sections) commenced; and
• Compile research and answer question.

When the question has components (eg (a)-(c)), one overarching plan will likely suffice. Because the components are so closely related, the steps and conclusion which follow can also be combined. Thus, it would be unnecessary to present (2)(a): Plan-steps-conclusion; (2)(b): Plan-steps ... etc. Just be sure to present a clear answer to each component in the conclusion.

Note that the steps will usually be a separate element, setting out how the plan was followed. Students should provide just enough 'granular detail' in their steps to lead the marker through the process. The marker must be given sufficient information to enable them to follow the same research trail if they wished to do so. However, it is the reasoning and findings (and why they are relevant) that are more important than the mechanical processes.

As noted, students may assume that the markers have a working understanding of the various UNE-subscribed databases and the Federal Register of Legislation (FRL), Parliamentary Counsel's Office websites, Austlii, and so on. So, in the emailed 'Example' above, the trail could start at 'Lexis Advance' because the marker knows where in the library pages that database is to be found.

Thus, it is not necessary to include every last step, mouse-click and scroll. The following is paraphrased from a previous assignment and contains far too much detail:

.. The legal dictionary definition referred to s 93(2) of the Commonwealth Electoral Act 1918 (Cth). To check their interpretation of that section, I opened another tab in my Firefox browser and typed in the web address www.legislation.gov.au. Then, I clicked on the "Acts" heading in the dark blue bar at the left of the page and then clicked on the "in force" heading that appeared. Then I clicked on the "Co" link in the index and then clicked on the 34th link, being to the Commonwealth Electoral Act 1918 (Cth)
(http://www.comlaw.gov.au/Details/C2012C00581). Then, on the left-hand panel, I clicked to expand 'Part VII—Qualifications and disqualifications for enrolment and for voting" and scrolled down in the right-hand panel to read section 93. The section provides ... [entire section pasted in from the Act] ... {124 words + act extract}

Rather, just say:

• ... the dictionary definition cited s 93(2) of the Commonwealth Electoral Act 1918 (Cth). So, I checked the Act on the FRL.
• The section states ... [briefly, in your own words] ... This is relevant because ... {29 words + explanations}

The shorter version is easier to follow. It gains marks for the student's own explanation of how the section operates and why it is relevant to the answer. In contrast, the long-winded version:

• gains no extra marks for the unnecessary steps;
• loses marks for lacking concision;
• loses further marks for quoting a slab of legislation with no explanation of its meaning or operation.

Note, however, that this is a simplified example. Students may also need need read the broader context of the whole Act in which the section was found in order to fully understand its meaning.

For searches, a little more detail is required. But again, there is no need to spoon-feed the marker. At one extreme, it would be insufficient to only say: "I searched for the Commonwealth Electoral Act 1918 on Westlaw".

A good answer would instead say:

• To find related commentary, I used the 'Advanced' search in The Laws of Australia on Westlaw using "commonwealth electoral act 1918" in 'Legislation Cited (Title)' and "93" in 'Legislation Cited (Provision)'
• From the results, TLA [1.1.750]3 was relevant because …

These are just some general guidelines for how things could be set out in point-form. A prose-style is also acceptable, and the same basic principles will apply.

Sometimes, the plan might be 'derailed'. How students should deal with this will depend on the degree of derailment. Often, the searches will throw up something unexpected, but the new lead can be followed to a conclusion. On the other hand, documenting a complete dead-end would be a waste of words for this exercise. So, it is acceptable to revise and re-draft the plan (as presented in the assignment) in light of any major missteps. I do not consider it to be 'cheating' for students to do this. After all, such refinement should be instructive and - hopefully - the 'better path' can be adapted and implemented next time the student encounters a similar issue.

When it comes to the commencement dates (part (iii)), students should just include the essentials. For a 'minor act' (not central to the answer), the commencement can be footnoted. For acts that are central to the answer, the commencement and any amendment details should be in the body of the answer, not a footnote.  If there are numerous acts, a table at the end of each answer may be easier.

An example of commencement in prose might be (where s 93 is central to the answer):

The Act received assent on 21 March 1919, to commence in stages by proclamation (s 2). Most of the Act (including s 39, later renumbered to s 93) commenced on 21 March 1919. Section 93 most recently amended by the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Act 2011, which commenced upon assent 25 May 2011.

As an observation, a small number of assignments always seem to miss the crucial step of providing primary authority (part (v) for all statements of the law. This should be second-nature to students at this level, but it does occasionally get overlooked. Don't forget to cite (footnote) the primary authority again in the conclusion - even it appears to be duplicating the citations already made in the 'steps' component of the answer.

Finally, do not forget to include an overall conclusion. The content of this final answer will depend on how much detail went into the steps. Sometimes, the steps will include enough reasoning and 'interim conclusions' that the final answer will only need to briefly draw together the elements. For other answers, with less discussion in the steps, the conclusion will need more explanation.

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