Hypothetical Question/Client Advice

Hypothetical Question/Client Advice

Take-Home AssignmentInstructions and Tips
Advice
You are providing advice to a client. The client wants to know if he/ she must comply with the law.
It is your job to advise the client if there are any arguments that the law, or part of the law, might be invalid. This is a constitutional question.
Do not advise your client that the law is unfair/ outrageous/ excessive. There is a good chance it is all of those things. An outrageous and unjust law can be a valid law.
Only advise your client if the Commonwealth, and/ or Queensland, has constitutional power to pass the law in question.
Essential ingredients
1. Pass
To pass, you need to demonstrate:
• Correct identification of which:
o provisions of the Const (eg s 51(xx), s 90, s 96), and/ or
o implications from the Const (eg implied immunity, judicial power, implied rights)
are relevant;
• Correctly identify the legal test which applies to each of those provisions/ implications;
• Give case authority for the legal test.
• Apply the legal test to the Cth or Qld law.
• Reach a conclusion on whether the Cth or Qld law is valid.
• Give the client an answer:
o Eg 1: You don’t have to comply with s 1, because it is invalid as beyond the Cth’s external affairs power, but you have to comply with s 2, because it is supported by the corporations power.
o Eg 2: You don’t have to comply with the Qld Act, because it is inconsistent with the Cth Act.
o Eg 3: You don’t have to comply with s 3. Although it is supported by the trade and commerce power in s 51(i), it is invalid as it infringes the implied right to vote.
If you miss one issue, but find all the others, you can still pass.
2. Distinction/ HD
To get a Distinction/ HD, you need to:
• Show detailed understanding of the case law, including relevant analogous cases, or distinguish cases on their facts;
• Engage in detail with the Cth or Qld Act in the hypothetical, and use your thinking to develop arguments as to why it is valid/ invalid;
• Provide detailed reasons to justify your application of legal test to the Cth or Qld Act, using reasoning from the cases (not policy arguments, unless proportionality is an issue);
• Clearly advise the client whether he/ she has to comply with the Cth or Qld Act, and which provisions.
• Write well and clearly (does not need to be eloquent and use high-level language, but needs to be persuasive and structured)
You do not need to use any material other than the lectures and the casebook to get a HD. But you need to understand what you have been taught.
3. Fail
Indicators of failure:
• Missing more than one relevant issue;
• Stating the wrong test (eg the old law, rather than the current law);
• Giving a summary of the whole history of a head of power, instead of going straight to the relevant test;
• Stating the relevant test but not applying it to the Act in issue in the hypothetical;
• Applying the test in a confused manner, indicating lack of understanding of the law; or
• Language so confusing it is not possible to determine your meaning.

Language

DO DON’T
High Court judges “hold” (this is the decision/ result) “purport”
“decide” “allege”
“reason”
“consider”

Parties to the case “argue” “dispute”
“allege”
“contend”
“submit”

The Constitution, including heads of power therein, is/are never invalid: laws made under the Constitution can be invalid.
The High Court “determines” the validity of laws.
The High Court “interprets” the Constitution.

you definitely need to write concisely. You will have a lot of content to cover, so choose wisely where to spend your words. Do not waste words quoting the full text of the relevant provision of the Constitution: it is enough to refer to the number (eg s 96; s 51(xx)).
Yes, you may use simple language. The most important thing is that your marker clearly understands your advice. But do not simplify the language of a test, eg use the words “reasonably appropriate and adapted”, or “discriminatory burden of a protectionist kind”… If you are a good writer, feel free to use your usual writing style.
Yes, you need to state the test from the case law. You cannot assume the client knows the test. However, you may apply the test at the same time as stating it,
eg: “The law clearly burdens the right to vote. (FN case) However, there is a “substantial reason” for this burden {state reason}, and the law is proportionate to that reason.” Your marker can clearly discern the limbs of the test from this type of statement, and that gives you more words to devote to your application of the test to the hypothetical law.
No, you definitely do not need to list tests which are irrelevant. However, if the issue is raised, but the test is not made out, you do need to discuss the issue. Using the week 13 tute as an example, it would be a mistake not to mention s 80 jury trial, even though in the end it does not apply to invalidate the Cth law. The issue needs to be discussed before concluding the law is not invalid.
No, footnotes do not count within the word limit. You may put the majority of your case names in the footnotes if you need to save space (some key case names might be useful in the text of your advice). You should put all your citations in the footnotes, not the text of the advice.
If you include phrases or sentences of text in the footnotes, that is counted as part of the word limit.
If a case is too recent to be included in the CLRs, use the [HCA] citation.
In summary, the rubric is a useful guide to format. Your tutorials have also given you great guidance in how to structure an answer. Use them! But they are only a guide. Ultimately, you need to work out the best and clearest way to present your answer with the most relevant information and analysis possible given the 2500 word limit. This is where you display your understanding of the topic and your discernment – knowing what to put in and what to leave out.

3016LAW – CONSTITUTIONAL LAW
FINAL TAKE-HOME ASSIGNMENT 2016

SUBMISSION GUIDELINES

Submission
The Take-Home Assignment is worth 50% of your course mark.
It becomes available Thursday9th June 2016 (week 14) at.
It is due Friday 10th June 2016 (week 14) at.
Submit via the submission point in Assessment tab under 3016LAW in Learning@G.
Please use Word format only (no pdf or other file types).

Late Submission
Strict late penalties apply: -5/50 up to 3 hours late;additional -5/50 every 3 hours thereafter.
If the Take-Home Assignment is submitted more than 24 hours after the due date, it will be awarded zero marks.

Word Limit
The maximum word count is 2500 words. This is a strict upper limit. There is no additional 10% applied. These policies supersede anything else you may see online.
The word count does not include footnotes, if they only include references to cases, legislation or the Constitution. However, discursive footnotes are counted in the word count (that is, footnotes with phrases or sentences of text).
Headings and sub-headings are not included in the word count. Quotes are part of the word count.
Where your assignment exceeds 2500 words, the whole of the assignment shall be marked. However, you shall be penalised according to the following formula:
 0 – 30% excess: minus 4 marks;
 31 – 50% excess: minus 8 marks;
 51% plus excess: minus 12 marks.

Cover Page
Please complete the Academic Integrity Declaration and Student Consent forms, and attach them to your assignment.

Research and Writing
• You do not need to do any further research beyond the information covered in:
o the relevant chapters in theBlackshield and Williams textbook;
o the lecture slides and lecture content; and
o tutorial content.

• You do not need to research any Commonwealth or State legislation, or any international treaties. The legislation and any treaties referred to in this hypothetical are fictional.
• Make sure you conclude with advice to your client.

Style
• Use headings/ subheadings or linking sentences to structure your argument.

• Proof-reading is an absolute requirement.

• Footnote referencing should conform to the Australian Guide to Legal Citation.

• There is no need for a bibliography/reference list the end of your paper.

SAFEASSIGN & ACADEMIC INTEGRITY
SafeAssign checks for plagiarism and inappropriate collaboration. Unfortunately, most years we find several incidents of academic misconduct in this course. It is very easy to spot; please do not be tempted. The consequences can include failure in the course, and being barred from legal and other professions. See the Course Profile for full academic integrity details. Key rules include:
o If you are not the original author of an idea, you must reference the idea;
o If you are not the original author of a sentence, you must place the sentence in quotation marks;
o Do not pass off another person’s work as your own; and
o Do not turn in the same university assignment more than once.

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