LAW112 Assessment 2 Haley McEwen

The basics Value: 40% Due: Friday 15 September Length: 2000 words (excluding references) Must use AGLC referencing style

The details The case: Minister for Immigration and Border Protection v Kumar [2017] HCA 11 The Court: High Court of Australia The legislation: Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) The brief: Draft a memo Outlining key aspects of statutory interpretation in the case Look at the history of the decision – its treatment in the High Court

In your memo Outline the relevant legal issue(s) in the High Court (200 words) Critically analyse the interpretative criteria applied by Justice Nettle, one of the majority Judges in the High Court decision. (You will find the relevant discussion in paragraph 36-79 of the decision) (1000 words) In your own words, explain the conclusion reached by the High Court (400 words) Critically analyse whether you agree/disagree with the decision of the High Court.

A. Identify legal issues Identify: Determine what are the key points to be addressed and implications thereof. Name each party and describe their individual issues. What area of law may govern these issues? Identify any conflicting facts. Listing the issues means avoiding a ‘scatter gun’ approach to analysing and answering the question. You only have 200 words so be concise. You are encouraged to examine the secondary resources around this decision or commentary on the High Court decision that preceded it. This will help you distil the main issues. The issues for both parties are outlined and the area of law is outlined. Use bullet points, or numbers etc.

B. Critically analyse the interpretive criteria Critically analyse: Provide an in depth examination of the strengths and weaknesses of the issues or arguments. Look in depth at each part using supporting arguments and evidence for and against as well as how these interrelate to one another. You are directed to the relevant provisions. Capture what interpretative criteria WAS used. The best answers would also address what was NOT used and what might be RELEVANT (not just a list of all that could have been used). 1000 words – this is the main body of your memo

C. Explain the conclusion reached Explain: Clarify by giving a detailed account as to how and why that finding was made. Describe cause and effect. Your writing should have clarity so that complex sequences of events can be understood, defining key terms where appropriate, and be substantiated with relevant references. 400 words

D. Critically analyse whether you dis/agree Critically analyse: Provide an in depth examination of the strengths and weaknesses of the issues or arguments. Look in depth at each part using supporting arguments and evidence for and against as well as how these interrelate to one another. Do you agree or disagree? Should the Act be amended? This is your chance to argue whether or not you agree or disagree with the decision and WHY. You need to set out your reasons. You might have reference to the original judgment in the Federal Circuit Court of the Federal Court appeal. You might refer to commentary. The best answer would highlight any subsequent decisions that have affirmed or questioned the decision.

Marking criteria High Distinction (85+) Distinction (75-84%) Credit (65-74%) Pass (50-64%) Working towards (<50%) Identification of relevant legal issues Identifies the area of law that is relevant to the problem question and clearly describes the legal problem(s) that need to be addressed . Comprehensive coverage and identification of major and minor legal issues. These are postulated with extreme precision. Correctly identifies major and minor legal issues and formulates them with precision. Identifies and correctly formulates the key legal issues with the ability to interpret relevant law and the relevant legal problem. Clearly describes the key legal issues and broadly identifies the relevant areas of law. Identifies no relevant legal issues or only a few of them. Some of these may be unclearly formulated. Legal Research Engaged in informative and effective planning (i.e. all sources are relevant plus most recent precedents, new or pending public policy developments are correctly identified). Engaged in-depth planning showing evidence of diverse sources and interpretation of relevant contemporary developments Engaged in substantial planning and describes contemporary developments in the law Engaged in basic planning (i.e. most sources cited are relevant) that broadly covers the relevant sources of law and contemporary developments No primary authorities cited; or only a limited range of primary authorities cited.   Identification of Interpretative Criteria (Statutory Interpretation)   Clear and comprehensive analysis of interpretive criteria. Includes an in depth analysis of the absence of certain interpretive criteria. Clear and sophisticated analysis of interpretive criteria. Critique includes an analysis of the absence of relevant interpretive criteria The discussion considers most of the interpretive criteria with some acknowledgement of the limitations.   The discussion describes some of the relevant interpretive criteria and broadly outlines the limitations.   The discussion of the facts does not refer to any limitations and interpretive criteria evaluation is scant.   Case Analysis Identification of ratio decidendi and a critique of  judgement Effectively analyses, synthesizes and interprets case law and legislation together with presentation of an in-depth comparative analysis of the judgement Synthesizes information together with presentation of a major comparative analysis of judgement Organise information effectively to achive a critical analysis with some  comparative analysis. Identifies ratio decidendi of decision and evaluates judgment using critical analysis. No critical or comparative analysis; or analysis is inaccurate Conclusion The Conclusion is completely supported by arguments in the Application section and clearly and completely explains how those arguments address the Issue(s). The Conclusion is well supported by arguments in the Application section and clearly explains how those arguments address the Issue(s). The Conclusion is supported by most of the arguments and the description is complete. The Conclusion is supported by some of the arguments but is loosely structured. The Conclusion is not stated or is not supported. Language Use legal language effectively and with faultless grammar and spelling Use clear and fluent language with accurate grammar and spelling Use clear language with accurate grammar and spelling Use understandable language, notwithstanding some grammar and/or spelling errors Substantial lack of clarity of language, and/or multiple grammar or spelling errors Presentation of paper Presentation follows guidelines, demonstrates careful proofreading, appears to be an authentic, professional memo Presentation follows guidelines and demonstrates careful proofreading Presentation follows guidelines Presentation mostly follows guidelines Presentation fails to adhere to guidelines Referencing Demonstrate an ability to cite and reference accurately and comply with the AGLC as a system with no errors. Demonstrate an ability to cite and reference accurately and comply with the AGLC as a system with only limited errors Demonstrate an ability to cite and reference accurately and comply with the AGLC as a system with minor errors Demonstrate an ability to cite and reference accurately and comply with the AGLC as a system with some errors but overall a consistent application of AGLC referencing. Demonstrates no or very limited ability to cite and reference accurately and comply with the AGLC as a system

Remember! You must use AGLC referencing Check your word count (+/-10%) Proofread it! Ask ALLaN to review your work Send me your draft by 4 Sept Run it through Turnitin Submit via EASTS