Trimester 1 2021 Assessment Task 3 – Memorandum of Advice – Individual Assignment
DUE DATE AND TIME: Monday 31 May 2021 by 8:00 pm (AEST)
PERCENTAGE OF FINAL GRADE: 60% [memo of advice – 50% and bibliography – 10%] WORD COUNT: 5,000 words [including citations, excluding bibliography]
In legal practice, law graduates are often provided with client information, by a supervising lawyer, and asked to provide advice on specific legal questions. The purpose of Assessment 3 is to develop, and apply, the following competencies:
- Legal reasoning;
- Critical thinking;
- Statutory interpretation;
- Case analysis; and
- Legal research.
To successfully complete Assessment 3, you are required to conduct legal research beyond your prescribed course materials to provide the advice requested. Legal research requires an investigation into primary and secondary sources of law to produce a credible argument. It is important to ensure that contentions are supported with relevant primary and/or secondary sources of law. You should utilise the knowledge and skills developed across the unit (including Assessments 1 and 2), to research relevant primary and/or secondary materials and write the memorandum of advice based on the research undertaken.
Assessment 3 requires you to write a memorandum of advice based on the information provided below.
You have recently been successful in obtaining a position at the Human Rights Law Centre. Your supervising lawyer, Simon Marsh, knows that you are a current Deakin University student who is studying the Charter of Human Rights and Responsibilities Act 2006 (Vic)(‘the Charter’). Simon has
received instructions to act on behalf of two clients, Matthew Brown and Sarah Brown. Simon requests that you provide a memorandum of advice regarding the following circumstances.
(Please note: you can assume that all the facts provided are capable of being proven in any legal proceedings that may arise. You do not need to discuss evidentiary issues).
Sarah Brown is employed by Western Health and works at Sunshine Hospital Emergency Department. She has been employed by Western Health in that capacity since January 2015. Her employment contract with Western Health required that she obtain an Immunisation Health Clearance prior to commencing employment. Under the relevant policy Sarah is classed as a Category A healthcare worker, which specifies that her role is likely to have her in ‘Direct and Indirect Contact with Blood or Body Substances’. Upon commencing her employment, Sarah complied with all related requirements and obtained the relevant clearance.
Recently, Western Health has required all staff members who are frontline workers to be vaccinated with the AstraZeneca COVID-19 vaccination pursuant to the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Bill 2020 (Vic). Sarah Brown raises her concerns with Western Health and says that, because she is 12 weeks pregnant, she does not wish to be vaccinated against COVID-19 because of the unknown risks. She cites the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG), which has said that, ‘as pregnant and breastfeeding women have not been included in initial trials, data are very limited and our current knowledge is based on inadvertently exposed patients and the impact of the disease in an unvaccinated population’.1
Notwithstanding Sarah’s concerns, Western Health say that it is now mandatory that all frontline workers be immunised against COVID-19 if they wish to keep their jobs. Western Health seeks to redeploy Sarah to administrative and clerical duties. She refuses. Sarah is directed to take leave on Friday 26 February 2021 and is told that Western Health will seek advice and revert back to her.
Matthew Brown decides to arrange a rally in solidarity with his wife. Matthew works for the Victorian Government Department of Health as a senior policy adviser. On Saturday 6 March 2021,
Sarah and Matthew, together with approx. 200 others (mostly frontline workers) gathered to protest in the Treasury Gardens. Specifically, they were protesting the mandatory vaccinations for pregnant and breastfeeding frontline hospital and medical workers. The Browns, together with others, erect tents and signage in the Gardens.
After several hours of peaceful protesting, law enforcement began to intervene. As the protest continued to grow in size, it soon became clear that the peaceful protest was being co-opted by others as a platform for ‘anti-vax’ protesters.
Law enforcement started to issue Notices to Comply. Both Matthew and Sarah received said notices, which made reference to Melbourne City Council’s Activities Local Law 2019. Thereafter, officers began to forcibly remove protesters from the Gardens. The mode of removal involved pairs of officers grabbing underneath the arms of protesters (one arm each) and escorting them away.
As this was happening, many of the protesters could be heard shouting, “Our Freedom, Our Choice”
AntiVaxers Deserve Choice”. Others shouted, “You can’t do this. It’s a free country! We have human rights you know!”
As a result of the commotion, many of the protesters, including Matthew Brown, began recording the actions of the Victoria Police forcibly removing protesters. Both Sarah and Matthew refused to leave the Gardens and were apprehended and held in custody at the East Melbourne Police Station for several hours as police made further inquiries. The police officers claimed to exercise their authority according to certain provisions of the Local Government Act 2020 (Vic) and the Crimes Act 1958 (Vic). The crowd continued to disperse over the next hour, and Sarah and Matthew were released later that evening.
In a series of public but anonymous Instagram posts (both photos and stories), Matthew has been highly critical of the actions of Victoria Police and of Department of Health. His profile did not state his name but it contained other identifying information. These posts were picked up through the hashtags #FoleysFailure #CareForThoseWhoCareForUs and #FiredForBeingPregnant by the Australian Broadcasting Corporation (ABC) and were broadcasted as part of a news story about the protest. Following this news item, internal investigations were carried out by the Victorian Department of Health which revealed that the Instagram account in question belonged to Matthew Brown and that it was frequently used to criticise the work of the Department of Health and its staff. Several of his posts were highly critical of the Department of Health, and purported to reveal an internal memorandum about reservations the Department had about the efficacy of the vaccine and the fact it had been rushed through clinical trials.
Two weeks later, Matthew Brown was served with a notice of termination of employment from the Department. The letter accompanying the notice asserted that he had breached relevant provisions of the Public Administration Act 2004 (Vic). The Victoria Government has now decided to introduce the Public Administration Amendment Bill 2021 (Vic),2 which, amongst other things, seeks to criminalise the actions of public servants who share sensitive or confidential State Government information on social media. Section 8 of the proposed Bill makes this offence retrospective in application and states that it will apply to any conduct that occurred on or after 1 January 2021.
Please advise regarding the following matters:
- Were the actions of Western Health and the directions regarding mandatory vaccinations valid under relevant legislation and compatible with the Charter?
- Does the Charter protect the protest activity of Sarah Brown and Matthew Brown?
- Is Melbourne City Council’s Activities Local Law 2019, under which notices to comply were issued, both valid and compatible with the Charter? Are the notices issued against Sarah and Matthew valid?
- Did Victoria Police act lawfully in apprehending Sarah and Matthew? Were the actions taken by the police, and is the enabling legislation, compatible with the Charter?
- What are Matthew’s rights under the Charter with respect to the ABC broadcasting his Instagram story, and what remedies are available under the Charter, if any?
- What are Matthew’s rights regarding his termination of employment from the Department with respect to the Charter, the Public Administration Act 2004 (Vic) and any relevant guidelines?
- What issues, if any, under the Charter are raised by the proposed amendments in Public Administration Amendment Bill 2020 (Vic)?
These questions do not have to be answered in the order they have been asked by Simon. In the discipline of law, there is no prescribed structure that a memorandum of advice must take. The structure will differ depending on the supervisor, the audience, the nature of the task and questions asked. Below is a suggested structure for this particular assessment task. Please ensure also that your memorandum of advice complies with the style and referencing guide set out below.
Please note – in practice you will often find that in providing your advice, you need to obtain further instructions on the facts (and sometimes advice is given based on the assumption of a particular fact). You may incorporate into your advice whether there is further information that would be relevant and how this might affect your advice. However, please do so sparingly as genuine attempts to answer the questions and give advice must still be made.
Please note – you are not required to directly consider the Commonwealth Constitution and constitutional law concepts and principles.
Please ensure that you utilise a memorandum of advice structure (see below for sample).
The word limit for this assessment is 5,000 words with a 10% tolerance. This is inclusive of Australian Guide to Legal Citation (AGLC-4) compliant citations. It is not inclusive of the bibliography.
The word limit will be strictly enforced and words in excess of this limit (after taking into account a 10% tolerance) will not be marked.
There are important reasons for imposing and enforcing word limits – they are something lawyers have to grapple with in practice. For example, arguments for special leave to the High Court must
not exceed 10 pages (responses to those applications must not exceed 5 pages) and must adhere to formatting requirements. Oral arguments for special leave to appeal to the High Court must not exceed 20 minutes.
More importantly, conveying your arguments with brevity is an important skill. It is often harder to be brief than verbose when formulating an argument. However, working to achieve the former will normally produce a better result. As with most things, quality is more important than quantity.
Style and referencing
The submission should be written in the style of a memorandum of advice.
Footnote citations and a bibliography must be included. You are expected to adhere to the AGLC-4. A link to the online version of the current edition of the AGLC is available in the unit Reading List on Cloud Deakin. Use of the incorrect referencing style may cost you marks.
Please use a size 12 font (Arial, Calibri or Times New Roman) with a line spacing of 1.5.
Please submit Assessment 3 using either .doc or .docx format. Please do not submit in PDF format. There is no need to upload a cover sheet with your assessment. However, please state your word count in your assessment.
This task allows you to demonstrate achievement towards the unit learning outcomes. The ULOs are aligned with specific graduate learning outcomes – that is, the skills and knowledge graduates are expected to have upon completion of their studies – and this assessment task is an important tool in determining achievement of those outcomes.
If you do not demonstrate achievement of the unit learning outcomes, you will not be successful in this unit.
It is good practice to familiarise yourself with the ULOs and GLOs as they provide guidance on the knowledge, understanding and skills you’re expected to demonstrate upon completion of the unit. In this way they can be used to guide your study.
|Unit Learning Outcomes (ULO)||Graduate Learning Outcomes (GLO)|
|ULO 1: Demonstrate a critical understanding of the formation, structure and administration of the legal system in Australia.||GLO1: Discipline-specific knowledge and capabilities.|
|ULO 2: Apply relevant reasoning and interpretation methodologies to analyse case law and legislation.||GLO4: Critical thinking|
|ULO 3: Undertake independent legal research, and apply appropriate research strategies, to locate relevant primary and secondary sources of law.||GLO2: Communication GLO3: Digital literacy GLO5: Problem solving GLO6: Self-management|
|ULO 4: Construct a written solution to a complex legal problem by analysing relevant factual, legal and policy issues.||GLO2: Communication GLO5: Problem solving|
You are to submit your assignment in the individual Assignment Dropbox in the MLJ701 CloudDeakin unit site on or before the due date.
When uploading your assignment, name your document using the following syntax: <your surname_your first name_your Deakin student ID number_[unitcode].doc (or ‘.docx’). For example, ‘Jones_Barry_123456789_ABC123.doc’.
Submitting a hard copy of this assignment is not required.
You must keep a backup copy of every assignment you submit, until the marked assignment has been returned to you. In the unlikely event that one of your assignments is misplaced, you will need to submit your backup copy.
Any work you submit may be checked by electronic or other means for the purposes of detecting collusion and/or plagiarism.
When you submit an assignment through your CloudDeakin unit site, you will receive an email to your Deakin email address confirming that it has been submitted. You should check that you can see your assignment in the Submissions view of the Assignment Dropbox folder after upload, and check for, and keep, the email receipt for the submission.
Marking and feedback
The marking rubric for this task is below and will also be available in the MLJ701 CloudDeakin unit site – in the Assessment folder (under Assessment Resources).
It is always a useful exercise to familiarise yourself with the criteria before completing any assessment task. Criteria act as a boundary around the task and help identify what assessors are looking for specifically in your submission. The criteria are drawn from the unit’s learning outcomes ensuring they align with appropriate graduate attribute/s.
Identifying the standard you aim to achieve is also a useful strategy for success and to that end, familiarising yourself with the descriptor for that standard is highly recommended.
Deakin University policy prohibits me from releasing your Assessment 3 results and feedback until the final results for the Trimester are released on Thursday 8 July 2021 at 6:00 pm (AEST). At 6:00pm AEST on Thursday 8 July 2021 you will be able to view your Assessment 3 results and feedback via CloudDeakin.
Students who require a time extension must submit an application. You must use the University form to submit an application (uploaded on unit site).
Extensions by the Unit Chair
Extension requests to the Unit Chair should be emailed. The maximum extension period that the Unit Chair can grant is 14 calendar days.
The Unit Chair may request evidence of progress and/or appropriate supporting documentation. Requests for extensions cannot be considered by the Unit Chair after the due date and time.
Extensions by special consideration
- Require an extension of longer than 14 calendar days, or
- Are applying after the due date and time
You must apply for special consideration through Student Connect. Supporting documentation is required for all special consideration applications. Telehealth medical certificates will be accepted.
The following marking penalties will apply if you submit an assessment task after the due date without an approved extension: 5% will be deducted from available marks (ie. 5% of 60 marks
equals 3 marks) for each day up to five days, and work that is submitted more than five days after the due date will not be marked and will receive 0% for the task.
‘Day’ means calendar day for electronic submissions. The Unit Chair may refuse to accept a late submission where it is unreasonable or impracticable to assess the task after the due date.
Deakin has moved towards a universal submission due time for assignments of 8:00 pm. However, a grace period exists until 11:59 pm that same day. Penalties will only be applied to submissions lodged after that time. The official due time remains 8:00 pm.
Calculation of the late penalty is as follows: this is based on the assignment being due on a Thursday
- 1 day late: submitted after 11:59pm on Thursday but before 8pm Friday – 5% penalty.
- 2 days late: submitted after 8pm Friday but before Saturday 8pm – 10% penalty.
- 3 days late: submitted after 8pm Saturday on due date but before Sunday 8pm – 15% penalty.
- 4 days late: submitted after 8pm Sunday on due date but before Monday 8pm – 20% penalty.
- 5 days late: submitted after 8pm Monday on due date but before Tuesday 8pm – 25% penalty.
Dropbox closes the Tuesday after due date at 8:00pm Melbourne time.
Failure to submit
This assignment is worth 60% and is compulsory. Failure to submit this assignment will result in a score of zero (0) for this assignment. Your final grade for the unit comprises the sum of all the marks received for each of the assessment items.
The Division of Student Life (see link below) provides all students with editing assistance. Students who wish to take advantage of this service must be organized and plan ahead and contact the Division of Student Life in order to schedule a booking, well in advance of the due date of this assignment. http://www.deakin.edu.au/about-deakin/administrative-divisions/student-life
Any material used in this assignment that is not your original work must be acknowledged as such and appropriately referenced. You can find information about plagiarism and other study support resources at the following website: http://www.deakin.edu.au/students/study-support
For information about academic misconduct, special consideration, extensions, and assessment feedback, please refer to the document Your rights and responsibilities as a student in this Unit in the first folder next to the Unit Guide in the Resources area of the CloudDeakin unit site.
Memorandum of Advice – Sample Structure
In the discipline of law, there is no prescribed structure that a memorandum of advice must take. The structure will differ depending on the supervisor, the target audience, and the nature of the task and questions asked. Below is a suggested structure, which you may choose to utilise, for the MLJ701 Memorandum of Advice.
Date: [The date you submit your assignment.]
To: [Who are you being directed to provide this memo of advice to? Check the instructions and insert their name here.]
From: [Insert your name and student ID number here.]
[What is your memorandum of advice about? E.g. ‘Advice regarding the events of XX (date)’, ‘Issues raised by XX (party names) regarding rights pursuant to the Charter of Human Rights and Responsibilities Act 2006 (Vic)’, etc.
Note: these are examples only and you are free to select a heading of your own. Please do not use the heading ‘Overall Heading’.]
Summary of Advice
[In a memorandum of advice it is usual to include a summarised version of the advice set out in the memo. For busy lawyers and clients, this section is very handy as they can quickly read it and understand the basis for your conclusions without having to read the entire memorandum. Think of this section of the memo as a conclusion on the issues, only unlike a traditional essay it appears at the beginning of the document.]
[This is where you include your advice in detail (ie. where you answer the particular questions that you have been asked to respond to). You are free to choose whatever headings and sub- headings are appropriate to clearly structure your response. Again, it is by no means necessary to use the heading ‘Long Advice’ at the start – in fact, you would simply start your detailed response to the issues. So, for example, your first heading might be ‘Potential Breach of the Charter – Bob Brown’
followed by a second major heading like ‘Potential Breach of the Charter – Doris Dalton’ and so on. You are also encouraged to use sub-headings where appropriate (ie. where it assists the structure and clarity of your memo).
Note: rather than include a ‘Conclusion’ paragraph at the end of the memo (remembering that this would contain essentially the same information as that included in the Short Advice), you should include a brief conclusion on the issues as you go. For example, perhaps under the heading
‘Potential Breach of the Charter – Bob Brown’ you conclude that ultimate Bob breached s 18 of the Charter – you would say so at the end of your discussion of this issue before moving on to discuss the next issue. Make sure to include ‘mini-conclusions’ in relation to sub-issues as you go. For example, perhaps Bob would only be liable for a breach of the Charter if X occurred at Y place – include a conclusion on the question of whether X occurred before considering whether this happened at Y place (or vice versa, depending what makes the most sense).]
|Criteria||High Distinction (HD) (80 – 100)||Distinction (D) (70-79)||Credit (C) (60 – 69)||Pass (P) (50 – 59)||N (30 – 49)||N (0 – 29)||Criterion Score|
|Application of appropriate legal research strategies, reasoning and interpretation methodologies to analyse relevant factual and legal issues in order to construct a written solution to a legal problem GLO1, GLO3, GLO4, GLO5, GLO6 (45 marks)||All relevant primary and/or secondary sources have been accurately located and appropriately analysed and applied to justify the legal conclusions reached. A comprehensive critical analysis of all the issues raised in the factual scenario. (36 – 45 marks)||The majority of relevant primary and/or secondary sources of law have been accurately located and appropriately analysed and applied to justify the legal conclusions reached. A detailed critical analysis of most of the issues raised in the factual scenario. (31.5 – 35.9 marks)||Primary and/or secondary sources are at times analysed, applied and discussed to justify legal argument, but further use of authoritative legal resources required. A detailed analysis of the legal issue/s raised in the factual scenario but further critical evaluation is required. (27 – 31.4 marks)||Primary and/or secondary sources are at times analysed, applied and discussed to justify legal argument, but relevant and authoritative sources have been overlooked. Further research is required. An analysis of legal issues has been attempted but is presented in a descriptive way. Further critical analysis, based on legal research, is required to justify the legal conclusions reached.||Limited research with relevant materials overlooked or misunderstood. Insufficient analysis, based on legal research, of the legal issues raised in the factual scenario. (13.5 – 22.4 marks)||No or minimal legal research undertaken. No or minimal attempt to develop a written solution to the legal problem. (0 – 13.4 marks)||/45|
|(22.5 – 26.9 marks)|
|Compliance with instructions, including communication and presentation GLO2 (5 marks)||The memorandum of advice conformed to all the instructions provided as well as all the communication and presentation requirements.||The memorandum of advice generally conformed to the instructions provided.||The memorandum of advice showed some attempt conformed to the instructions provided and showed some attempt to conformed to the communication and presentation requirements but was lacking in numerous places.||The memorandum of advice showed some attempt conformed to the instructions provided and showed some attempt to conformed to the communication and presentation requirements but was lacking in numerous places. (2.5 – 2.9 marks)||The memorandum of advice does not conform with the instructions provided and does not conform with the communication and presentation requirements.||The memorandum of advice does not conform with the instructions or with the communication and presentation requirements.||/5|
|(3 – 3.4 marks)|
|(4 – 5 marks)||(1.5 – 2.4 marks)|
|(3.5 – 3.9 marks)||(0 – 1.4 marks)|
|Bibliography and Referencing GLO1 (10 marks)||Complete and accurate citation of authorities and sources. Complete and accurate bibliography of authorities and sources.||Authorities and sources are generally correctly cited in accordance with the AGLC-4. The bibliography generally complies with the AGLC-4.||Some missing and/or incomplete citations. Bibliography with some errors.||A number of missing, incomplete or incorrect citations. Bibliography with numerous errors.||A number of missing, incomplete or incorrect citations. Bibliography with numerous errors.||No citation of sources. No bibliography submitted.||/10|
|(8 – 10 marks)||(7 – 7.9 marks)||(5 – 5.9 marks)||(3 – 4.9 marks)|
|(6 – 6.9 marks)|
|(0 – 2.9 marks)|
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