School of Law & Justice

LAW00051
Legal Research and Writing
Written by: Jill Cowley, Jennifer Nielsen, Beth Finch, Claire Valkenberg and Helen Walsh Revised by: Helen Walsh

Study Guide

Sixth edition

© 2011 Southern Cross University Southern Cross University Military Road East Lismore NSW 2480 No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by means electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the publisher. Copyright material indicated in this work has been copied under Part VB of the Copyright Act 1968.

Sixth edition 2011

Contents
Unit overview ................................................................................................................................ 1 Using this guide .............................................................................................................. 1 About the Legal Research & Writing team ..................................................................... 4 Introduction ................................................................................................................................... 6 Topic 1 Researching and understanding Australian laws .................................... 9 What we’ll do in this topic ............................................................................................. 9 Objectives ....................................................................................................................... 9 Australian laws ............................................................................................................... 9 What laws exist in Australia? ....................................................................................... 10 Where do we find Australian laws? .............................................................................. 18 Study skills ................................................................................................................... 24 What’s next? ................................................................................................................. 30 Further reading ............................................................................................................. 32 Topic 2 Writing style: Using plain language .............................................................. 35 What we’ll do in this topic ........................................................................................... 35 Objectives ..................................................................................................................... 35 Introduction .................................................................................................................. 36 Writing style ................................................................................................................. 39 The style of legal writing ............................................................................................. 42 What is plain legal language?....................................................................................... 44 Should plain language be used in legal writing? .......................................................... 45 Using plain legal language in your legal writing ......................................................... 47 Plain legal language works! ......................................................................................... 56 Other things that can affect written communication .................................................... 57 Self‑test........................................................................................................................ 58 Further reading ............................................................................................................. 67 Topic 3 Legal writing ........................................................................................................... 69 What we’ll do in this topic ........................................................................................... 69 Objectives ..................................................................................................................... 69 Writing for law studies ................................................................................................. 69 Writing legal essays...................................................................................................... 74 Abstracts and précis ..................................................................................................... 79 Referencing style .......................................................................................................... 80
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LAW00051 – Legal Research and Writing

Citations and referencing ............................................................................................. 81 Bibliographies .............................................................................................................. 86 Writing for legal practice.............................................................................................. 87 Summary ...................................................................................................................... 93 Further readings............................................................................................................ 97 Topic 4 Legal problem solving and law exams ....................................................... 99 What we’ll do in this topic ........................................................................................... 99 Objectives ..................................................................................................................... 99 Problem solving in tutorial work and law exams ......................................................... 99 Law exams.................................................................................................................. 106 Further reading ........................................................................................................... 110 Topic 5 Understanding cases ........................................................................................111 What we’ll do in this topic ..........................................................................................111 Objectives ....................................................................................................................111 An introduction to case law and the doctrine of precedent .........................................111 Application of the doctrine of precedent .................................................................... 115 Legislation overrides the common law ...................................................................... 116 Judges can interpret legislation .................................................................................. 116 Law reports ................................................................................................................. 116 What cases look like ................................................................................................... 117 Reading and understanding case law ......................................................................... 120 Citation of case law .................................................................................................... 122 Summary .................................................................................................................... 123 Further reading ........................................................................................................... 127 Topic 6 Understanding legislation ............................................................................... 129 What we’ll do in this topic ......................................................................................... 129 Objectives ................................................................................................................... 129 An introduction to legislation ..................................................................................... 130 How legislation is made and changed ........................................................................ 130 Types of legislation .................................................................................................... 132 What legislation looks like ......................................................................................... 132 Citation of legislation ................................................................................................. 133 Delegated legislation .................................................................................................. 134 Legislation overrides the common law ...................................................................... 135 Judges can interpret legislation .................................................................................. 135 The rules of statutory interpretation ........................................................................... 135 Intrinsic materials ....................................................................................................... 137 Extrinsic materials ...................................................................................................... 137

........................................................................................................................................ 194 Finding non-legal information ..................... 143 What is legal research? .................................................................... 154 Table of secondary sources for specific research tasks ....................................................... 140 Topic 7 Methods of legal research ............................................................................................................................................................................................... 148 Where should I look first? .......................................................................................................................................................................................................................................................... 194 Online support ......................... 163 Computerised research methods............................................... 151 Develop good research habits ........................................................................................................................................................................................................................................................................................... 179 Topic 9 Secondary sources – commentary ................................................................................................................................................................................................................................ 181 What we will do in this topic ................................................. 182 Textbooks ................................................................................................ 162 Topic 8 Computerised legal research methods ................................................................................................................................................................................................ 138 Summary .... 138 Further reading ........................... 189 Government and parliamentary publications ....................................................................................... 163 Computer assisted legal research (CALR) ....................................................... 146 What are you looking for? ................................................................................................................................................................................................. 199 Further reading ................................................................................................................. 181 Objectives .... 182 Dictionaries ......... 147 Where do I start? Prepare a plan for your research .............................................................................................. 185 Legal encyclopaedias ........................................................................................................................................................................................................... 199 ............................ 188 Periodicals (journal articles)..... 175 Further reading .................................................................... 169 Which is the appropriate database? ....................................................................................................................................................................................................................................................... 163 Objectives ................. 155 Further reading and references ........................................................................................................................................................................... 144 The purpose of legal research..................................... 143 What we’ll do in this topic ........................ 163 What we’ll do in this topic ........................................................................................................................................................... 153 Putting it altogether ....... 164 Sources of electronic legal information ........................................................... 143 Objectives ........................................................................................... 193 Forms and precedents services ................ 192 Law lists and almanacs ............................... 184 Looseleaf services ............. 186 Citators and annotators .......... 182 Introduction ...........................................................................................LAW00051 – Contents iii Reading legislation .....

........................... 235 Further reading ................................................................................................................................... 201 What we’ll do in this topic ....................................... 210 Finding cases by name/citation ................... 219 Finding casenotes and articles about cases .............................................................................................................................................. 218 Finding unreported cases ............................................................................................................................................................................................................................................... 204 Further reading ............................. 201 Legal encyclopaedias ..................................................................................................................................................................................................................................................................... 211 Finding cases by subject .........iv LAW00051 – Legal Research and Writing Topic 10 Secondary sources – updating ............. 209 Case law and how to find it .............................................................................. 223 Secondary sources and finding tools .................................... 223 Legislation and how to find it ..................................................................................................................................................................................................................................................................... 209 What we will do in this topic .......................................................................................................................... 207 Topic 11 Finding and noting up cases .............................................................. 233 Finding statute notes and articles about Acts . 223 Objectives ................................................. 221 Further reading ............................................................................................................................................................... 222 Topic 12 Finding and updating legislation ......................................................................................... 216 Finding cases in which an earlier decision has been judicially considered (Noting up cases) ................................................................................................... 232 Finding cases which interpret (judicially consider) legislation ........... 219 Using electronic sources and browsing online services to search for cases and information about cases ................... 236 Unit summary .................... 202 Current awareness services . 202 Digests ................................................................................................................................................................................................ 201 The importance of updating . 231 Finding extrinsic materials ................................................................................................ 212 Finding cases that have considered the meaning of words and phrases....................................................................................................................... 227 Finding amendments – updating legislation.................................................................................................................................................. 236 ..................................................................................................................................................... 235 Delegated legislation ............................................................................................................................................... 223 What we will do in this topic ... 209 Finding case law generally ................................................................................................................... 209 Objectives ............................... 201 Objectives ........................................................................ 227 Finding legislation ...................... 224 Finding Bills ..................................................................

so the tasks and review activities in each topic provide the opportunity for you to monitor your learning progress. This assumes that as an adult the learner wants to take control of his/her learning in a safe and secure environment and with the help of a learning facilitator – in this situation. using features such as hierarchical headings. We are aware that most students. Using this guide This Study Guide is designed. All activities should be attempted as/when they appear. when to attempt specific tasks and when to undertake self-assessment activities and/or review questions to check that learning is taking/has taken place. r r Textbook Read the material in the textbook mentioned. the Study Guide has been developed with adult learning principles in mind. when to read the textbook(s) or other supplied readings. Active learning is an essential part of adult learning processes. study independently. Reading Read the material mentioned. you will be directed to specific activities – for example. Generally. We use simple cues to represent the different things you need to do. and legal research skills. 1 . Throughout the Study Guide. and particularly those studying off campus. activities within the topic are designed to check your understanding of particular concepts while review activities at the end of topics are included to draw together related concepts and provide the opportunity to put theory into practice. You are advised to attempt the activities independently before looking at the answers. We view the Study Guide as an active learning tool – that is. The topics we cover can broadly be broken down into two parts: legal writing and the skills involved in understanding legal information.Unit overview This unit covers two important skills in legal studies and in legal work: research and writing. as the name suggests. margin notes and bold font to highlight key concepts and terms. At some points in the materials. the messages and directions in the Study Guide. the learner is required to be active while studying and to interact with the learning material. For this reason. we also use cues to highlight important information. to ‘guide’ you through the subject matter of the unit in a systematic and structured way.

defining. you may find you have missed some fundamental point/concept/idea that we are using as a building block in subsequent teaching. If you do not attempt them. w w f e a Online activity/reading To complete the activity you will need to access the internet. differentiating. identifying application: applying knowledge – for example. Note well: You need to attempt these activities before proceeding because they are designed to focus your thinking in a certain direction or allow you to check that learning has taken place. applying. naming. contrasting. Learning objectives A list of learning objectives appears at the beginning of each topic. This Workbook contains the activities that on campus students will engage in each week in tutorials. examining . explaining. Self-test activity Answer questions posed or complete a quiz designed to test your knowledge of the subject or your strengths and weaknesses in respect of a skill. interpreting. External student are encouraged to complete the exercises as directed in this study guide. criticising. These self-test activities are provided to enable you to determine whether you need to complete a topic or can move on and/or whether you have attained the required skill/s or should seek further guidance. Feedback Here is a response to or comment about an activity you were set. Summary Summary of important points/ideas/thoughts – usually appears at the end of a topic. Reflect Ponder the significance of something. describing. For some activities you are referred to the Workbook. analysing. These are expressed in terms of anticipated outcomes. discussing. labelling comprehension: interpreting information – for example classifying. solving analysing: breaking down knowledge into parts and showing the relationship among the parts – for example. The objectives cover a wide range of aptitudes: • • • • knowledge: recalling information – for example. illustrating. comparing. calculating. Discussion question The statement or question posed will be placed on the MySCU discussion forum to enable you to engage in discussion and debate with fellow students. The exercises from the workbook will be completed at the workshops. assemble your thoughts about a specific statement or question.2 LAW00051 – Legal Research and Writing a Activity Prepare answers to questions posed or responses to statements made.

You are advised to check your achievement against the objectives as you complete each topic. constructing. attacking. designing. It is important to realise that recalling knowledge is a very small part of what is required in this course. The content of each topic and the activities set should all relate to the objectives. The activities are included so that you incrementally acquire these important skills. appraising. evaluating. Rote learning is not appropriate at this level of study. defending.LAW00051 – Unit overview 3 • • synthesis: bringing together parts of knowledge to form a whole and building relationships for new situations – for example. preparing evaluation: making judgments on the basis of certain criteria – for example. In this unit. predicting. you need to demonstrate higher-orders skills of analysis and application. arguing. . creating.

and the Faculty of Law at Monash University. and preparing textbooks and conference papers. as well as working in an academic position with the Monash Orientation Scheme for Aborigines.About the Legal Research & Writing team Dr Jennifer Nielsen has been teaching in the School of Law and Justice since 1994. She contributed to the teaching of this unit from 1994 to 2002. EEO and OHS Law and Practice. As the resident tutor for the school. acting as a consultant to the NSW Department of Women. including preparation for litigation. Karin Ness graduated from Southern Cross University with a BA/LLB (Hons) in 2000. Before this. Her research work has been varied. Karin also works at the Northern Rivers Community Legal Centre in Lismore in community development and community legal education. Kayleen Wardell has been the Law Liaison Librarian at Southern Cross University since 1993. She has a passionate interest in first year student education. She has extensive experience working with victims of crime. Angela is based at the Beachside campus. Helen has been involved in the teaching of Legal Research and Writing since 2001 and is also involved in other first-year units such as Family Law Practice and Australian Legal System. She teaches Employment and Industrial Relations Law. Helen Walsh is a solicitor of the Supreme Court of New South Wales and associate lecturer with SCU School of Law and Justice. Karin has taught at SCU School of Law and Justice since 2001 mainly in legal research and writing. Angela has a BA (Hons) from Macquarie University. 4 . Helen was employed in private practice in the Northern Rivers region working mainly in the area of family law. and has a range of experiences as an educator through her involvement in developing and teaching information literacy programs at Southern Cross University. Angela Jones worked as a solicitor at Redfern Legal Centre before joining the School of Law and Justice. Kayleen has also developed an interest in the challenges that emerging technologies have created for the teaching of legal research in the higher education environment. She teaches in legal research and writing and other first year units. It examined the legal framework designed to challenge discrimination against Indigenous Australians at work. torts and welfare Law. Prior to her appointment at SCU. Contract Law and in the School’s Clinical Legal Education programs. In this role she has provided ongoing support to staff and students involved with Legal Research & Writing. Her research interests include family law and children’s law and she is currently completing her postgraduate degree in the area of juvenile justice. Helen works closely with first year students studying at a distance to help them meet the many challenges associated with studying law at tertiary level. she practised as a solicitor in New South Wales and Victoria. In that role Karin focuses on creating greater access to justice for young people and people from culturally and linguistically diverse communities (CALD). She was awarded her PhD in Law from the University of Melbourne in 2007. a LLB Grad (Hons) from ANU and a Master of Adult Education from UTS. Her other interests include philosophy and neuroscience.

Beth Finch and Claire Valenberg who contributed to the development of this unit. . Lisa Frisken and Sally Hawkins for their contribution to the unit and their feedback and assistance with the development and updating of these materials. We would also like to thank Katja McPherson.LAW00051 – About the Legal Research & Writing team 5 We are grateful to Jill Cowley.

state ‘[f]or many reasons it is unwise to depend on one tool. These topics may overlap with some material that you have studied (or are studying) in LAW10157 Australian Legal System or LAW00111 Legal Process. including the ‘rules’ related to interpreting and understanding legal information. As you may have guessed. This unit can broadly be broken into two stages. and skills in reading cases and legislation. and which will be relevant to the way you eventually use your legal training. 6 . writing skills and cover some other matters fundamental to law studies. Nemes & Coss’ Effective Legal Research. it will show you how the doctrine of precedent and the rules of statutory interpretation influence the way you should approach legal research and legal writing. In Topics 1–4 you will gain basic. we will focus on the skills involved in legal research. As the writers of your prescribed research text. And when you attempt to do hands-on work. this means that. even if we were sitting right next to you. the original statements of legal ‘rules’ and principles. When it comes to legal research. This is deliberate. whether it be electronic or hard copy. In the second stage. but research and writing are fundamental skills to all types of legal work. but essential.Introduction Welcome to LAW00051 Legal Research & Writing. What they are saying – and with which we strongly agree – is that legal research is most effective if it is comprehensive. In Topics 5 and 6. and to achieve that you must use a range of legal resources. Actually. These topics are designed to provide you with an understanding of legal research and ‘hands-on’ experience at using manual and computerised systems to undertake research tasks. you must either visit a law library or you must practise your skills on the internet. In addition. one method or one mode of resource’. these skills are legal research and legal writing. we would encourage you to do both. in Topics 7–12. To facilitate this learning component students studying on campus will attend tutorials and computer practicals. as we feel it will help you build your written skills. we could not teach you to write and to research effectively if you did not do some hands-on work for yourself. There are many other skills that you will develop during your studies. Our materials have a range of exercises that we would strongly encourage you to complete in order to develop your legal writing and research skills. to learn most effectively from this unit. In these sessions we will explain the scope and limitations of both manual and computerised approaches to legal research and guide you through exercises to assist your learning. and not merely one form. and students studying at a distance will have the opportunity to take part in online discussion and to attend a workshop (or Elluminate Live! session). It is essential that you do this because. make sure you are prepared – keep your textbook and unit materials at hand to refer back to as you try to use the legal research tools for yourself. we will introduce you to the skills (and rules!) involved in reading cases and statutes – these are the primary sources of law. This unit aims to teach you two main skills that are important both in the study of law and in its various forms of practise. in other words. The first stage examines the skills needed to study and to write about law.

If you DO NOT have internet access. It is important that you engage with other students’ ideas – as well as ours and your own – to enable you to develop the skills being taught in this unit. You can also download the Style Guide from the Law Student Centre in MySCU.php>). However. we would like to state from the outset that this unit cannot teach you all there is to know about legal writing and legal research. These skills must be developed through continued practice. Debate is a strong feature of good legal study skills.LAW00051 – Introduction 7 And. we will be providing Online Discussion forums in most of the topics. .law. any Elluminate Live! sessions and additional materials posted during semester. as external students. The Australian Guide to Legal Citation (AGLC) is prescribed for guidance and clarification on referencing matters. We strongly recommend you purchase the latest edition of Nemes & Coss’ Effective Legal Research and although there are a couple of references to this textbook in the early topics. It is important that you make use of MySCU and in particular the LAW00051 Legal Research & Writing learning site while you are studying this unit. particularly for use in your exams. and you will see that these two books work together. it is still recommended that you have a hardcopy dictionary. MySCU also provides links to a wide range of Southern Cross’ services. From the online learning site you will have access to podcasts. Rest assured you’ll have plenty of opportunities to continue to practise your legal research and writing skills throughout your studies with us. including the library.edu.au/index. You will be referred to these throughout the unit. you should contact one of your unit assessors immediately to put in place strategies to keep you informed this study period.edu. Throughout this SG you will be referred to Readings which can be locate on the CD or on eReadings via the unit learning site (instructions for using eReadings and RapidPrint can be found at <http://ereserve. In addition there are moderated discussion forums to enable you to communicate with your unit assessors and other students. The AGLC can be downloaded in Read-Only format from <http://mulr. you are also asked to purchase two prescribed texts: Nemes & Coss’ Effective Legal Research and Clear and Precise. Your unit assessors will be using this site as their main form of communication with you. Learning Assistance. As provided in the Unit Information Guide. Obviously there are many online resources available and while you are studying with us you also have access to the Encyclopaedic Australian Legal Dictionary in LexisNexis. in the main. To facilitate this. finally. as well as in your future career! Resources that support this unit In addition to this Study Guide (SG) you will need to access and read other resources to successfully complete this unit. Writing Skills for Today’s Lawyer. Student Support and Computing Support. As well as information and online links to support this unit. We also recommend that you invest in a good law dictionary (see recommended reference material in the UIG).unimelb.au/aglc. this textbook is required for Topics 5–12. Student Admin. You will also be required to participate in the online learning site.asp> or purchased from the Co-op bookshop. You will also need the School of Law and Justice Style Guide which you will have received with this SG.scu.

to say the least! We assure you that that’s no reflection on us or you.au/library> and from there you can access some of the library’s legal resources. or anything else that you want to discuss about this unit. You can access the library’s website at <http://www. Good luck with this unit. if you do not have access to a law library or to the internet then you should contact the unit assessor immediately. Please persevere with your reading.scu. Helen Walsh November 2010 . and please contact your unit assessor to discuss any problems you may have. You may find some of the material in this unit a bit dry.8 LAW00051 – Legal Research and Writing Your first assessment item requires you to visit the LAW00051 learning site through MySCU – so there is really no avoiding it!! You will also need to familiarise yourself with the University’s library website. As noted above. because the skills you learn in this unit will be fundamental to your success not only in your studies.edu. but also when you put your legal training to work at the end of your course. which will be of particular assistance in this unit.

If this applies to you. please feel free to skim read to the heading ‘Where do we find Australian laws?’. If you were able to answer the activity questions above without further research. a Self-test Activity 1.Topic 1 Researching and understanding Australian laws What we’ll do in this topic This topic will introduce you to some of the basic concepts that you need to be familiar with in order to learn how to understand and research legal information effectively. You may like to attempt the online activities to familiarise yourself with the parliamentary websites and AustLII. identify the sources of Australian law. develop good study skills that enable you to: – manage your time efficiently. and – read effectively. Some of you may have already studied a unit designed specifically to teach you about the Australian legal system. and will introduce you to some of the skills that will help you to study law effectively. let’s find out how much you already know. 9 .1 (a) What is ‘law’? (b) Who makes it? (c) Where do law-makers get the power to make law? (d) List some features of a legal system. and the common features of legal systems. – recognise how to take effective and accurate notes. First. understand the ways legal information is stored and how to retrieve it. Australian laws The first thing we have to do before we can start learning about how to understand and find law is to understand what it is we are looking for. We also have to understand some of the terminology used to describe law. Objectives At the completion of this topic you should be able to: • • • • understand the Australian legal system. you may already have the basic knowledge of the Australian legal system that the first part of this topic outlines.

government and academic reports. As you come across new words in your materials and texts. are designed to establish lines of responsibility and respect for members of the society. as these skills are fundamental to all jurisprudential approaches to the study and practice of law. the term ‘law’ describes the body of rules that exist in a society. philosophy and laws. culture. such as Acts of parliament. beliefs. such as parliament. and the mechanisms that are in place to enforce laws. that is just not right! Australian legal history started millennia ago. The legal system includes law-making bodies. if our inquiry takes a wider – and perhaps more critical – view of the law. these laws and mores are characterised by a strong filial and spiritual connection to land and waters. Human Rights in Australian Law (1998) 92. studies on the experience of society with the legal system. J Nielsen and G Martin. Within this diversity. or the judgments of courts. ‘Indigenous Australian peoples and human rights’ in D Kinley (ed). Your skills in examining legal texts critically. and interpreting them to determine their meaning. are unique and diverse at the same time. However. In legal research. To do this. and the spirits and life-forms contained therein. Their culture. In this unit. developed over many millenniums. These rules provide the framework within which the society must function. As Nielsen and Martin describe it: Indigenous peoples have lived on the Australian continent and associated islands since time immemorial. we focus on understanding and finding legal texts. feminist. Those whose research and writing involve certain types of jurisprudence1 – such as decolonising. Of course.2 1 Jurisprudence refers to the theory or study of law. What laws exist in Australia? Indigenous laws The starting point for Australian legal history tends to focus on 1788 as the date when all law and history began. postmodern and critical legal theorists – look beyond legal texts to uncover the meanings of law and the power structures that it reflects. and researching more widely from a critical perspective will be developed in other units during your studies. as well as for obligations to law and culture. such as the courts. the information that we seek to uncover may be limited to the sources that state the rules themselves. we may also look to other sources of information. This connection finds expression in the obligation to protect and respect the land and waters.10 LAW00051 – Legal Research and Writing Generally. 2 . our focus often tends to be on discovering the rules that are made by law-making bodies. laws and societal mores. As we will go on to see. Societal structures are complex and interrelationships between and within language and other group structures. the purpose of interpreting law may also be to critically analyse it. These laws and cultural traditions continue to be practised by contemporary Indigenous Australians today. remember to look them up in your legal dictionary and make a note in your own words of their meaning. and so on. This enables us to apply these rules to a given situation in order to resolve a difference or dispute. as we all know. with the development of Indigenous ways of life. albeit for many in a fragmented fashion due to the adverse effects of the 210 years of colonisation they have endured. such as the opinions of members of society.

Visit your local or virtual library (that is. Indigenous Australian laws take on a very different form and practice to those with which non-Indigenous Australians are most familiar. or rule. in order to justify the territorial acquisition of Australia. In fact. For some insightful comments on the operation of the Native Title Act 1993 (Cth) see Comments on the 2009 Mabo Oration by Murray Wilcox QC.gov. So by ignoring the authority of the peoples of the land that is now called Australia. Indigenous Australians practise these laws every day of their lives.adcq. most specifically those laws that give Indigenous Australians the title to their land: native title. . an electronic library) and see if you can locate the Australian 3 4 But see I Watson. This recognition of Indigenous property law (and to a degree other laws) is repeated in the Native Title Act 1993 (Cth). took up ownership of all the lands in the name of the English sovereign. Backed up by guns and disease. The perception by the English of their own superiority – founded in false scientific theories and religious fervour – led them to assume the inferiority of the peoples they encountered. a Activity In the 1980s the Australian Law Reform Commission undertook an inquiry about the recognition of Indigenous laws by the mainstream legal system. Indigenous Australian kinship and family relationships are given some legal effect in the context of family and child welfare law. fishing and gathering are also enforced in certain circumstances.au/ATSI/FromSelfRespect_comments. of terra nullius. and other statutory authorities such as the Australian Human Rights Commission or the NSW Roads and Traffic Authority. local councils. and rights to hunting. English law gradually became another weapon against Indigenous Australian peoples. both through resistance and through legal challenges. they encountered peoples and ways of life that were considerably different to their own. and those laws are slowly gaining greater recognition by the mainstream Australian legal system.html> (at 11 November 2010). the English assumed sovereignty over it – that is. Thus. When the English arrived in Australia. including differences in their language and laws. In 1992. some traditional punishments have been taken into account when sentencing in criminal law. there was not and there still is not only one set of Aboriginal or Indigenous laws. which includes many separate lawmaking bodies in the form of federal and state parliaments.4 Other Indigenous Australian laws have been recognised by the mainstream courts. and by international law. These assumptions informed the application of the legal doctrine. So the Yorta Yorta of Victoria have a different language and different laws to the Bundjalung Nation of Northern New South Wales. for instance. qld.LAW00051 Topic 1 – Researching and understanding Australian laws 11 There was great diversity amongst the Indigenous tribes and language groups living on the Australian continent when the English invaded in 1788.3 and recognised the prior and continued (where not extinguished) existence of Indigenous Australian laws. courts. traditional marriages are recognised in certain instances. ‘Indigenous Peoples’ Law-Ways: Survival against the Colonial State’ (1997) 8 Australian Feminist Law Journal 39. former Federal Court judge at <http://www. the King – and by these means also imposed English laws on this land. in Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2). though there may be features in common between the two. Indigenous Australian peoples have been challenging the authority of English (and subsequently Australian) law ever since. this is similar to the mainstream legal system presently operating in Australia. the High Court of Australia finally rejected the doctrine of terra nullius. The English also assumed the inferiority – in fact non-existence – of Indigenous laws.

locate ‘ALRC 31 The Recognition of Aboriginal Customary Laws’ and click on that title. You may have already discussed this in detail in LAW10157 Australian Legal System or LAW00111 Legal Process. Regardless of judgments by the High Court stating otherwise. 5 6 7 The word ‘doctrine’ is used by lawyers to refer to a particular rule. the position taken by colonial and then mainstream Australian courts has been and continues to be that. Indigenous Australians continue to challenge the acquisition of their lands. The reception of English laws In Mabo (No 2) the High Court found that the doctrine of terra nullius had no proper application to the acquisition of Australia by the English. Despite this. and as noted above. upon the establishment of the colonies in Australia. For this reason we will focus on the issues related to the reception of English law most relevant to us as legal researchers. However. the contemporary mainstream legal system is very much an English one. You can also read a summary of the report by selecting ‘Report Summaries’ instead of ‘Report’ and locating the relevant summary in Vol 2 ‘Report Summaries. Even so. and because Indigenous laws and cultural values may in fact prevent access to certain laws and knowledge. For that reason. Laying Down the Law (4th ed. . Indigenous Australians maintain their laws as part of their daily lives. 1996) 29. as legal researchers. For this reason. finding Indigenous Australian laws requires a far different process to the one we will be learning in this unit.6 Since the establishment of the English colonies in Australia. and the application of English laws to them. the ‘colonists carried with them only so much of English law as is applicable to their new situation and the condition of an infant colony’. or you are about to do so this session. you cannot simply visit a library and look these laws up in a book. or to a set of rules that are related to same issue. Look through the report. It is important that. As a result.12 LAW00051 – Legal Research and Writing Law Reform Commission’s Report entitled The Recognition of Aboriginal Customary Laws. above n 3. G Morris et al. we understand that Indigenous Australian laws have never ceased to operate in Australia. the High Court maintained that English laws had been ‘received’ into the Australian colonies upon acquisition of the continent of Australia by an act of state by the English sovereign. and still retains many English laws and ways of doing things. See Watson. given that the laws are kept largely as an oral tradition. those English laws that were relevant to the colonies were received and became the law. the High Court maintained that England had acquired Australian territory by a doctrine5 it described as ‘the act of state’. Click on the link to ‘Australian Law Reform Commission Publications’.7 Thus.edu. instead you must obtain permission to visit and talk to the people who are the custodians of that law. you should study some of the units offered by Southern Cross University’s Gnibi College of Indigenous Australian Peoples. and identify some of the Indigenous laws documented within it.austlii.au/> From the Austlii Libraries index select ‘Law Reform’. To find out more information about Indigenous Australian laws. To locate the report online visit: <http://www. 20 years’. Select ‘Reports’.

and are described as the dates when English law was received as the colony’s law. new Australian law-making bodies also came into existence – the parliaments and the courts of the Commonwealth.gov. Territories have lawmaking authority in a broad range of matters like the states. and the states (and in 1911 the territories).LAW00051 Topic 1 – Researching and understanding Australian laws 13 Looking at it from the point of view of researching the law. When we discuss ‘Australian’ laws.au/> 8 Australian Courts Act 1828 (UK) . An Australian law-making system When the Commonwealth of Australia came into existence at Federation in 1901. and prevents states from creating laws about matters that are inconsistent with Commonwealth laws (s 109). Legislation passed by the English Parliament after these dates became Australian law only if it was expressly stated that these laws were to apply to the ‘colony’. Each of these has law-making power over a defined geographical territory or jurisdiction.au/> New South Wales: <http://www. note that recorded mainstream Australian laws date back to about 1828.8 However.qld. The addresses you will need are as follows: Australian Government home page: <http://www. these dates correlate to the date the various colonies came into existence. These dates are: New South Wales Victoria Tasmania Queensland Western Australia South Australia 25 July 1828 25 July 1828 25 July 1828 25 July 1828 1 June 1829 28 December 1836 The Australian Capital Territory (ACT) came into existence on 1 January 1911. and received the laws in existence at the time from South Australia.gov.gov. we need to know when English law came to Australia. and on that date ‘received’ all of the law in force in New South Wales. The law-making authority of the Commonwealth Parliament is limited to the specific matters set out in s 51 of the Australian Constitution 1901 (Cth). The states have a broad range of law-making powers within their own jurisdiction. but are overseen by the Commonwealth Parliament. w Online activity Visit the home page of the Commonwealth government as well as that of your state or territory’s government home page.australia. including those English laws that had been received in 1828.au/> Australian Capital Territory (ACT): <http://www. English laws created legislatures (parliaments) and courts in the new colonies. The Commonwealth Constitution provides that the Commonwealth Parliament has supreme law-making authority over the matters set out in s 51. and these bodies began to make new laws applicable only in the colonies. and the states and territories. the English common law (the law from cases decided by the courts) continued to be received by and applied to the colonies. which can change territory laws without permission from the territory’s parliament (s 122). Similarly. The authority to make laws in the Australian federation is divided between the Commonwealth (or federal level of government).nsw.act.au/> Queensland Government home page: <http://www. Briefly.gov. the Northern Territory also came into existence on 1 January 1911.

au/> Western Australian Government home page: <http://www.tas. the mainstream Australian legal system became completely independent from that of England. 2. Common law The common law is found in the decisions made by courts or tribunals.14 LAW00051 – Legal Research and Writing Victorian Government home page: <http://www. the courts in Australia were still obliged to follow the decisions made by the more significant English courts. primary sources of law can be located in many places. the High Court of Australia finally became the paramount court in Australia. the decisions made by the more important courts are reported in published case reports. which abolished appeals to the Privy Council from the state Supreme Courts. most decisions made by the High Court of Australia are reported in the Commonwealth Law Reports (CLR) the Australian Law Reports (ALR) 9 The major legal publishers include CCH. particularly the Privy Council.gov. public websites and in hardcopy on the shelf of a law library. Primary sources of law The mainstream legal system that operates in Australia has two ways in which laws can be made: 1. There are a number of legal publishers in Australia who publish case reports9 and important decisions will often be reported in each of the rival publisher’s series of case reports. the Australian High Court determined in Viro v R (1978) 141 CLR 88 that it was no longer obliged to follow decisions of the English courts including the Privy Council. The common law and legislation are described as the primary sources of law. by the Australia Act 1986 (Cth). The Australia Act also severed the legislative power of the English Parliament. As you will learn in the later topics of this unit. but after the enactment of the Statute of Westminster Adoption Act 1942 (Cth) this could be done only at the request of the Commonwealth or state parliament to which the law was to apply. The state courts’ ties with the English courts were also cut soon after. ‘Government services’ or ‘Parliament’ in order to locate parliamentary materials.gov.gov. Other materials that discuss or describe these primary sources of law can be extremely useful to us. LexisNexis and Thomson Reuters.gov. At this point. there was still some power retained by the English Parliament to make laws that applied in Australia. Generally. the highest English court.wa.au/> Northern Territory Government home page: <http://www. You may wish to bookmark these sites. you will need to click on ‘Government’. At this point. by the courts in the form of the common law – the body of rules built up over time in the form of precedents (previous decisions). However.au/> At some of these sites. At the time of Federation. and by parliaments in the form of legislation (also known as Acts or statutes). . These forms of law are known as the primary sources of Australian law.vic.nt. They are known as secondary sources. However. including electronic databases.au/> South Australian Government home page: <http://www. particularly for research.au/> Tasmanian Government home page: <http://www. For instance.sa. in 1978. because they are the original statements of the law made either by the courts or by parliament.gov.

It is the publishers or the editors of the reporting series who decide whether a case should be reported and that decision is usually based on the precedent value of the case. SA Supreme Court (SASR). The distinction between the reported and unreported decisions is becoming less significant in practice. Reported decisions are usually fairly easy to find provided we know the name or some other details about when or where the case took place. In each jurisdiction there is one reporting series which is regarded as the authorised reports. whether the case is regarded as important to the development of the common law. Again. most legislation and delegated legislation is now available online – either through AustLII or through government or parliamentary electronic libraries. You will be learning how to understand legislation (using the rules of statutory interpretation) and how to locate it in Topics 6 and 12. Each parliament produces a printed copy of all the legislation it enacts. Qld Supreme Court (Qd R). it is only the authorised reports that have been through a process of approval by the judges prior to publication. Vic Supreme Court (VR). Unreported decisions should not be overlooked in our research as they may still be relied on to support our arguments. ACT Supreme Court (ACTR). territory or federal parliament. as well as an annual volume that contains the legislation passed by that parliament each year. Rules called the doctrine of precedent describe the way we ‘fit’ cases together to understand the law or the legal principle. Use your legal dictionary to locate the name of the reporting series from the acronym provided in brackets. which has been decided by the courts. Parliament can delegate the authority to make legislation to an administrator or statutory authority. which is commonly known by other names. and so are important to try and locate. The legislation made by these bodies is called delegated legislation. such as rules. WA Supreme Court (WAR). 10 The authorised reports for Australian superior courts are: High Court of Australia (CLR). Tas Supreme Court (Tas R). as the judgments of most courts and tribunals are now available online – either through AustLII or through government or parliamentary electronic libraries. Legislation Legislation is produced by a state. The rules of statutory interpretation assist us to understand legislation. NSW Supreme Court (NSWLR). regulations and by-laws. That is.LAW00051 Topic 1 – Researching and understanding Australian laws 15 and the Australian Law Journal Reports (ALJR) and if the matter relates to criminal proceedings it may also be reported in the Australian Criminal Reports (A Crim R). Family Court of Australia (FLR). Federal Court of Australia (FCR). The way legislation is produced makes it much easier to locate than the common law.10 While each published version of the decision can be relied on as an accurate record of the case. Not all decisions of all courts are reported. In Topics 5 and 11 you will be learning in detail how to understand the common law (using the doctrine of precedent) and how to locate it. The decisions that do not appear in the published case reports are described as unreported decisions. These case reports provide the authoritative source of the common law. . NT Supreme Court (NTLR).

International law usually does not regulate the relationships between citizens within a nation-state. often the most viable means of enforcing international law is through international diplomatic. including the International Court of Justice and the human rights committees. . For instance. Various rules and laws have developed over time. These laws may be developed through a custom or way of dealing between nationstates (international customary law). and the relevance of that membership is increasing as the boundaries between nations are more easily crossed. citizens of Australia do not have to observe the international convention in their dealings with one another – but must otherwise comply with the obligations created by the Racial Discrimination Act 1975 (Cth). Various bodies of the United Nations. the governments of nation-states enter into treaties and covenants on behalf of their citizens. 660 UNTS 195 (entered into force 4 January 1969). especially by means such as trade and the internet. These are described as international law. However. Due to recent High Court decisions. On the other hand. As a result. However. or more commonly in the form of treaties or conventions. international laws do not automatically have any legal force in domestic laws – the laws made and operating within a country. enforce international laws. confirmed) by it. international law may also be relevant to the way a government department or authority is supposed to formulate policy and the procedures used by it to implement that policy. and have been accepted by many within the international community as governing the relationships between different ‘nation-states’ (countries) in the international sphere. The nation-state of Australia is obliged to observe the principles in the International Convention above in the manner in which it behaves towards its citizens for two reasons: because it must observe its obligations under international law and because it is bound by the Racial Discrimination Act 1975 (Cth). As the influence of international law upon Australian domestic law (laws within Australia) is increasing. the Australian government has signed and ratified the International Convention on the Elimination of All Forms of Racial Discrimination11. 11 Opened for signature 7 March 1966. If you wish to learn more about the system of international laws. a treaty or convention must be signed and ratified (that is. To be binding on a nation-state. and in the way the courts develop the common law. international law is now another relevant primary source of Australian law. international law may become a part of Australian domestic law if the federal government uses it as the basis of legislation passed by parliament. It has implemented its obligations under that treaty within domestic law in the form of the Racial Discrimination Act 1975 (Cth). but instead regulates behaviours by the nation-state itself.16 LAW00051 – Legal Research and Writing International law Australia is part of the international community. trade and political pressure. you may wish to study LAW00521 International Law and/or LAW00522 Human Rights. and so is obligated by international law to observe the provisions of this convention. In this way.

Many secondary sources are specifically designed to help us locate and update information about the law.au/library/>. Click on ‘United Nations’ and ‘WorldLII’ and browse the resources available. These important sources of information provide great assistance in understanding the meaning of laws. While these laws are influential. Canada. particularly those that come from other common law countries. legal encyclopaedias and journals. This unit is not able to teach you about researching international laws and the laws of other countries. Examples are England (obviously). there is no obligation on an Australian court or parliament to follow them. the United States. They are ‘secondary’ because they are second-hand accounts of the original statements (the primary sources) of the law. They may well be very influential in the development of Australian legislation. it was not obliged to adopt the legal reasoning used in those Canadian cases. and may assist in the development of Australian law. India. To assist you to do so. there are legal digests. To get an idea of what is available go to the Southern Cross University Library homepage <http://www. However. Under the heading ‘Online Resources’ select ‘Subject guides’ then click on ‘Law & Justice’ and select ‘Law’. The more a country is socially similar to Australia. which are described as secondary sources of law. Browse the ‘International Websites’ within the Websites tab. For instance. For instance. The laws of civil law countries may also be of interest in Australia. and Aotearoa/New Zealand.LAW00051 Topic 1 – Researching and understanding Australian laws 17 Laws of other nations Other ‘international’ laws may also be relevant sources even when trying to understand or to locate Australian law. The domestic laws of these countries can be influential to our law-making bodies. the final chapter of your text Nemes & Coss’ Effective Legal Research describes how to research laws from other countries.edu. but tend not to be as influential on the development of the common law. the more influential its laws will be in Australia. you may still wish to investigate these sources of law. and you will find a list of texts at the end of this topic to guide you. Common law countries are those that have a legal system based on or that operates similarly to the English legal system. Generally. . You will learn how to locate and use these in Topic 9. w Online activity There is a broad range of materials relevant to international law and the laws of other nations available on the internet.scu. Some examples are textbooks. civil law countries like Italy and France make all of their laws as legislation (referred to as codes) and do not build up laws through the decisions of the courts. You will be learning about the secondary sources and how to use them to locate and update primary sources in Topic 10. case citators and statute annotators. However. the High Court referred to and was persuaded by several important Canadian decisions in its judgment in Mabo (No 2). Secondary sources of law There are other sources of legal information.

For example. we look briefly at the way legal information is stored in libraries. legal materials are often hard to find in a Dewey system. which appear in square brackets. these specialist libraries are not open to the public. as many books will have an identical number.09 .9. The following table contains a sample of the Dewey system as it is related to law. Usually. in that law is a rapidly expanding area and Dewey has allocated only ten numbers for this area. The Dewey system numbers books from 001 to 999 often with many numbers placed behind a decimal point. It will now be referred to as Nemes & Coss (or N&C). Library collections and classifications r Textbook Nemes & Coss’ Effective Legal Research (4th ed. and generally you will be referred to particular paragraph numbers. but are for the use of the judiciary and legal practitioners. Next. Later in this unit. There are many specialist legal collections in this country.5 . This unit teaches you (in Topics 6–12) how to use our library and its resources.9 Standard subdivisions Philosophy and theory of law Comparative law Law reform Legal systems Conflict of laws 340 . A problem arises with law collections. which is the unit’s prescribed text. It is now possible to complete this unit entirely through the use of electronic libraries and other online resources. It is most likely that you will use the electronic library at Southern Cross University. ‘regulation of trade’ is classified as 343. namely 340. or maybe another university closer to where you live.1 .3 . which now include ‘virtual’ or electronic libraries. and have to be distinguished from each other by the addition of even more numbers and letters. if at all possible. However. and how to locate and to use these sources effectively. As a result.17] Please note that throughout these materials we will refer you to readings in this text. you will look in detail at the ways in which primary and secondary materials are produced. you should also visit a law library either at Southern Cross University. Most libraries order their books according to the Dewy Decimal Classification system. 2010) [3.2 .16]–[3. including the libraries of the High Court and of each state Supreme Court. To complete this unit you must have access to a law library.01–. with which you are probably familiar. Australian laws are located in libraries.08.18 LAW00051 – Legal Research and Writing Where do we find Australian laws? Generally speaking. and the electronic resources that are available to us.01 to 349. 340 Dewey Decimal Classification SUMMARY 340.

This system breaks the collection into major areas of law by a designated letter. .7 342 .09 .001–. Many of the major law libraries now use the Moys system.01–.001–. and then subdivides that area by the use of numbers.2 .4 . Elizabeth (Betty) Moys.LAW00051 Topic 1 – Researching and understanding Australian laws 19 341 . and within that area.03 .6 .05 . However.08 . without duplication of numbers.05 International law Standard subdivisions Sources of international law The world community Relations between states Jurisdiction and jurisdictional relations of states Disputes and conflicts between states Law of war International cooperation Constitutional and administrative law Standard subdivisions Basic instruments of government Revisions and amendment of the basic instruments of government Structure.02 .009 . note that some law libraries prefer to house these materials in a discreet area by themselves. trade. functions of governments Legislative branch of government Executive branch of government Election law Jurisdiction of governmental units over persons Local government Specific jurisdictions and areas Military.04 .01 .09 . For example.02 .5 .03 .3–. preceded by the letter ‘K’. industrial law Standard subdivisions Military. as does Southern Cross University’s library. powers. local government law is designated the numbers 361–391. The Southern Cross University Library has placed primary materials separately from secondary materials.3 . public law is designated as ‘KM’.9 343 .07 . veterans’ law Law of public property Law of public finance Tax law Kinds of taxes by base A more ‘user-friendly’ system is the Moys classification system. This alphanumeric system thus allows for a much larger collection of materials.06 . You will see from the synopsis below that primary materials tend to be shelved at the beginning of each major subject area. tax. specifically to accommodate law library collections.1 . defence (national security).009 . to make the collection more user-friendly.04 . which was designed by a law librarian.

07 . etc JURISPRUDENCE GENERAL AND COMPARATIVE LAW Biography.4–43 . This list may be useful when using a hardcopy law library collection.01 .24–31 .05 . etc Legal miscellany Popular accounts Comparative law INTERNATIONAL LAW Primary materials Reference materials General works Public international law 100–136 140–199 200–208 210–219 220–239 240–242 245 250–259 260–277 280–284 300–339 340–1199 1200–1319 1350–1425 2000–2150 General. etc Dictionaries.099 340. etc War Conflict of laws .33 .8 .31–35 .2–23 .06 . etc The state Human rights International criminal law International economic law Social laws Nuclear energy Transport.35–39 .19 .17 . diplomacy.1 340 .09 . courts.9 340 . publishing Abbreviations.02–04 . librarianship Legal writing.6 .4 . etc Directories Maps.20 LAW00051 – Legal Research and Writing Read the following synopsis of the Moys classification system to familiarise yourself with the categories into which legal information is classified. communications International maritime law Outer space International relations.5 .37 .11–16 .44 .448 . theory. SYNOPSIS K 1–28 29–79 80–90 100–107 110–114 120–126 150–180 200 KA KB 10–22 30–35 40–66 100–250 KC 10–65 71–76 80–86 JOURNALS AND REFERENCE BOOKS Journals Bibliography Law libraries.49 . history. as it will assist you to locate texts relevant to a particular topic or subject area.45–46 .5–6 341 . treaties International organizations International disputes. memoirs.47–48 .7 .08 .

7 .8 .1 . taxation Local government .08 . law reform Administration of justice Legal history Public law General Constitutional and administrative law 345 .3 .2–7 .8–9 346 .9 344–347 344 KF KG KH British Isles Canada.5 . government Administrative law Public finance.3–6 .8 .1–2 .7 . US.03 .6 .5 . West Indies Australia.9 343 .4 . New Zealand Treatises KL 1–36 40–44 50–119 130–149 155–179 200–319 400–480 KM 1–29 General Legal system Legal dictionaries and encyclopaedias Legal profession Legal education Legal research.1 .LAW00051 Topic 1 – Researching and understanding Australian laws 21 KD 10–39 60–890 100–590 600–680 700–780 800–980 KE 5–20 21–29 30–95 100–250 251–300 310–340 350–380 400–480 500–540 KF-KN RELIGIOUS LEGAL SYSTEMS General Jewish law Christian churches Islamic law Hindu law Others ANCIENT AND MEDIEVAL LAW General Ancient Near East Hellenistic law Roman law Byzantine law Other ancient European systems Medieval and Pre-Napoleonic European law Roman-Dutch law Others COMMON LAW Primary materials 342 .2 .4 .3 .2 .07 .1 .6 .06 .01 31–141 171–259 300–307 331–359 361–391 General Citizens.

3 .605–619 .38–39 .83 . we can simply browse along the shelves where the books are numbered KM 361–391.22 LAW00051 – Legal Research and Writing 400–416 Military law Criminal law and procedure . trade.301–305 .6 349.8 349. etc Business associations.84–89 .68–69 . the library catalogue is almost always a better starting point.62–64 . the general focus is the same.5 .1 .7 500–565 570–690 KN (1)–(4) 10–25 30–39 General.9 347 (.31–35 . industries Sale of goods Insurance Finance Transport (non-maritime) Maritime law Communications.4 .1–4) . However.9 50–58 60–98 100–118 120–143 150–198 200–235 General Real Property Personal property Inheritance and succession Persons and social laws Equity Commercial law 250–256 260–275 280–287 290–295 300–315 320–329 330–339 340–349 350–399 General. Most library catalogues these days are computer generated and although their format may vary between libraries. If we are simply looking for a general text on local government. computer law Procedure (general and civil) OTHER MODERN LEGAL SYSTEMS KP KR KS KT KV KW KZ Preferred jurisdiction Africa Latin America Asia and Pacific Europe European Community Law (alternative) NON-LEGAL SUBJECTS 348 349.81–82 .6–8 . agency Tort Property .36–37 . .65–67 .8 . law enforcement Private law Conflict of laws (alternative) Contract. crimes Criminal procedure.4 Now that we know how legal materials are collected or stored.2 .5 349. we need to look at how to locate the materials we require.7 .

This will familiarise you with the Southern Cross Library catalogue online. whoever. and case reports that contain decisions made by Commonwealth (federal) courts. banks. stock and station agents. For information about borrowing at other university libraries contact Southern Cross library or go to the library home page and select ‘Borrowing’ under the heading ‘Services’. including universities that have granted you borrowing rights. Obviously they are not in the business of providing information and as such some may provide more assistance than others. secondary sources that discuss international law. stakeholders.sl.LAW00051 Topic 1 – Researching and understanding Australian laws 23 Electronic access to the Southern Cross University library catalogue is gained from the library homepage. a Activity If possible. w Online activity Visit the Southern Cross electronic library. and so on. To access the library catalogue you will need to be connected to the internet and be logged onto MySCU.au/library>.scu. Complete this online tutorial. primary source materials. When you visit or contact any of these information sources. secondary sources that discuss administrative law. Please attempt this activity when you visit your local law library. .scu.nsw. Apart from general public libraries. They are not obliged or expected to offer you the same service available to their staff. students.au/library/>. Some public libraries in NSW are contact points for the Legal Information Access Centre (LIAC) <http://liac.edu. visit a law library near you. there are many other sources of information available to you. secondary source materials. please remember you are a ‘guest’ in their working environment. case reports that contain decisions made by the courts of the jurisdiction within which you live. and so contain general legal texts. and see if you can locate the following resources that are available in that library: • • • • • • • • the library catalogue. Other sources are community information centres. You might like to bookmark this page so that you can come back and complete the other tutorials. hospitals. Although most of the materials you may require will be held in our law library. Select the ‘Catalogue’ icon. In country areas. Familiarise yourself with the layout the library. • • • • Go to the library home page at: <http://www. Click on ‘Online tutorials’ under the heading ‘Getting Help’. federal and state governments can provide you with information on a topic from their websites.gov. The library’s home page is at <http://www. the local council or local courts are sometimes good sources of information.edu.au/>. legal dictionaries and other legal ‘reference’ materials (which cannot be borrowed).

select and print a copy of the Weekly and Session Timetable. Read the guides Managing Your Time and Getting your Assignments Done on Time and if you have time listen to the podcast of the Time Management Workshop. and lawyers have become very adept at the use of computers and the internet. The Academic Skills Development Unit at Southern Cross provides a range of services and materials specifically designed to improve your learning skills and to develop strategies for effective study. You might like to bookmark this page so that you can come back and access the other guides. Study skills It is not possible to include extensive information about all the skills necessary to assist you in learning law. These online collections store a large amount of information. There are also a number of textbooks and guides available that focus on the skills needed to study law successfully. these are available through the internet. and to store and to retrieve significant amounts of information cheaply and quickly. Instead we have chosen just a few aspects which we believe will assist your study: time management. (See list of further reading at the end of this topic) w Online activity To get you started on developing these study skills visit the Academic Skills Development Unit at <http://www. In Topic 8 you will learn about the strategies involved in using computers and online resources effectively to undertake legal research.au/academicskills>. Select ‘Academic skills information guides’ under the heading ‘Resources’. 1997) Ch 5 . How to Study Law (2nd ed. Select the Getting Started and Time Management folder and view the range of guides available. In the meantime. by means of online resources. with the aid of a computer.24 LAW00051 – Legal Research and Writing Electronic sources of law The information age is well and truly upon us. note taking and effective reading. More and more legal information is being made available electronically. The internet is an electronic worldwide communications link. In the next three topics we will discuss two other important study skills: legal writing and legal problem solving. r Reading 1. We will be looking at these together in later topics. Browse the various folder headings.edu. which enables people to communicate within and between countries. and are a useful research tool as. If you have access to a printer. The next two readings will guide you on how to approach your legal studies. Most commonly.1 S Frazer.scu. you can look at a vast amount of information at one time. including primary and secondary source materials. at the end of this topic you have been referred to several texts that can assist you to explore the internet and its legal resources for yourself.

LAW00051 Topic 1 – Researching and understanding Australian laws

25

r

Reading 1.2
A Hasche, ‘Teaching Writing in Law: A Model to Improve Student Learning’ (1992) 3(2) Legal Education Review 289, Appendices 1, 2 and 4

Time management
As Christopher Enright says:
Study is not a simple, repetitive, linear task. It involves preparing for class, going to class, using the library, reading different materials, learning basic principles, becoming more broadly acquainted with others, thinking, giving ideas time to be absorbed, putting skills to work, looking for material, researching essays, writing essays, answering problems and taking examinations. Hence to ensure that these are combined efficiently some organisation and forward planning is necessary.12

It seems trite to say that you cannot succeed unless you are organised and yet it is clear that many students fail to recognise that proficient learning requires good organisation. The mode in which you study will clearly influence your planning. As an internal student, you will need to prepare for classes and tutorials. As an external student, on the other hand, you may not be preparing for or attending classes, but will be involved in directed reading, preparing to attend workshops and/or Elluminate Live sessions and (hopefully!) interacting with your tutors and other students online on a daily or weekly basis. Different activities perhaps, but all requiring the same level of organisation. For each unit or subject you study in a session you will need to manage and allocate your time to enable the successful completion of all topics, activities and assessment tasks and to receive a grade of a Pass or higher. In this unit it is expected that you will spend approximately 12 hours per week studying. This is just a suggested workload and will vary for individuals and for different times during the session. Further, the suggested number of hours you should set aside for the study of this subject makes no comment about the depth of learning. It merely assumes that learning cannot be facilitated unless you can manage your time and allow sufficient time to read, absorb, think and perform. Unit Information Guides (UIGs) provide information that can assist you to plan and manage your time because they: • • • • provide an outline of the course; notify you of textbooks required or recommended; warn you of the timing for the submission of assessment tasks; and prescribe the form of assessment.

a

Activity
Using the timetables that you printed earlier, turn to your UIG for Legal Research and Writing, and prepare your own weekly timetable allowing for 12 hours of study for this unit per week. Refer to the Suggested Study Timetable, which will assist you to create your own session timetable. Make notes in your diary of the appropriate dates for the submission of assessment tasks and for weekend workshops or weekly lectures and tutorials. If you are studying other units this session, repeat this process for each unit.

12

C Enright, Studying Law (5th ed, 1995) 502.

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LAW00051 – Legal Research and Writing

Note taking
Students take notes in order to retain an accurate and precise account of readings or lectures. Lectures might be given only once. Readings might be available to you only for a short period of time. The process of summarising aural or written information into useable ‘chunks’ aids both comprehension and memory. Note taking is a skill that is learned, and, while it is acknowledged that each person will develop their peculiar note taking style, there are some commonalities.

Why should you take notes?
There are many reasons why you should take notes. Good notes will help you to recall the important parts of the topic that you are learning, quickly and easily. Note taking also encourages you to put the information into a form or structure as you hear or read it. The process of putting information into notes after reading also means that you are revising the material immediately. Last, but certainly not least, it keeps you active, both mentally and physically, while you are reading or listening.

What physical method should you use for keeping notes?
The Academic Skills Development Unit website and the Academic Skills CD (available through the Co-op Bookshop) contains many useful pieces of information about note taking amongst other skills. The following extract from A Guide for Writing Research Papers provides an overview of what is involved in note taking:
As you examine each source, make a separate note of each fact or quotation you might want to use in your paper. Unless you are really good at manipulating text with your computer or laptop, it might be wise to use index cards when preparing notes. Be sure to identify the source of the information on the listing (include the author’s name and page number on which the information appears). Try to summarize the information in your own words (paraphrasing); use quotation marks if you copy the information exactly. (This rule should apply whether you are copying a great deal of material or only a phrase.) Give each listing a simple descriptive heading … .Your listings – whether they appear on index cards or within some format on your computer – will now provide the authoritative basis for your paper’s content and documentation. By arranging and rearranging the listings and using your descriptive headings, you may well discover a certain order or different categories which will help you prepare an outline. You may find that you need additional information, or that some of the listings may not be appropriate and should be set aside or discarded.13

One of the easiest and most useful methods for keeping notes is to use a ring folder. Some people like to use cards; others like to keep their notes on a computer, printing them out when the topic is complete. You should choose whatever method is best for you.

13

Humanities Dept, Capital Community College, A Guide for Writing Research Papers based on Modern Language Association (MLA) Documentation, Capital Community College, Hartford, Connecticut, <http://www.ccc.commnet.edu/mla/> at 7 November 2005.

LAW00051 Topic 1 – Researching and understanding Australian laws

27

Keeping your notes in a ring folder has many advantages. It is simple to divide the topics and/or subtopics into sections and you can then separate these sections using clearly labelled dividers. A ring binder allows you to slot in more pages when you have gathered more information. It is helpful to begin each new topic or subtopic on a new page, as this will allow you to slot any new information into the correct location. Using a computer also has the advantage of enabling you to update and revise material without disrupting what you have already prepared too much.

What format should your notes take?
Your notes should be brief. That is, they should be a summary of what you have read or heard. There is no point repeating great slabs from your texts or written materials. We will discuss the way of summarising information effectively in a moment. An easy method of referring to materials in textbooks or other secondary sources is to highlight the relevant information in the materials (provided you are using your own copy!) and simply make a brief reference to it in your notes. One way of keeping your notes brief is to develop your own shorthand, rather than writing commonly used words or phrases in full over and over again. Below are some examples, but you should develop your own as you will find these easier to remember: company account equity contract business manslaughter husband wife co a/c eq kt bus mansl H W

Use headings, and index your notes clearly. Headings will allow you to structure your notes in a logical order. Your study guide and unit information should assist you in selecting the headings. Make your notes easy to read by the use of highlighters, underlining or abstracts (summaries). Use the margin. This way you can add notes for studying purposes. These notes could be ‘Important for exam’ or ‘Use in assignment’. Cite cases, legislation and references to texts or articles clearly. Doing this will mean that you will not have to look these up again later if you are citing them in an assignment. Nutting14 lists the following guidelines for good notes: 1. 2. 3. 4. 5. 6.
14

Use your own words rather than the words of the speaker (or writer). Develop your own ‘note hand’, that is, your own shorthand. Write essential details in full – dates, technical terms, names, and so on. Where possible, ask for keywords to be written on a white/black board. Don’t write them down the way they sound. Make your notes easy to follow. Number them and use headings. Leave spaces so that you can add extra points later.
J Nutting and G White, The Business of Communicating (2nd ed, 1990) 97–98.

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LAW00051 – Legal Research and Writing

7.

Look for connections between ideas. Add a new idea to something you already know. 8. Patterns help you remember data. (For example, positive and negative elements that must be satisfied, rather than just recording all the elements of a cause of action in one list.) 9. If you don’t understand something, don’t put it in your notes. (Leave a space and write it down when you find out what it means.) 10. Revise and edit your notes as soon as possible. (If you are attending a workshop or have interviewed someone, try to work from your notes while the information is still fresh in your mind.) 11. Make notes more interesting and easy to follow by using highlighters, underlining, asterisks, and so on. Huseman15 also lists the characteristics of good notes: 1. 2. 3. 4. 5. They are purposeful. That is they have a specific learning goal in mind. They reflect the logical structure of the material. They are brief. They are able to grow. They accurately attribute sources.

We will look briefly at how to take notes for certain purposes.

Notes of lectures and workshops
The basic rule of taking notes at lectures is to listen, understand and record. Prepare yourself for the lecture. If you have been asked to read material before attending, do so. Make sure that you have enough paper and pens. If you have a course outline, bring it, as well as other materials that your lecturer may refer to during the lecture. This can help if the lecturer is frequently referring to cases and legislation, which may be hard to hear if you are not familiar with them, and will allow you to mark passages of your text or handouts to which the lecturer refers. This will assist you when you come back to revise your lecture notes and will assist you to prepare summaries of the lecture notes and your unit materials. One method of teaching is to say what you are going to say, say it, then say what you have said. Listen to the introduction so that you will understand what the speaker is going to talk about. Similarly, listen to the summary at the end to ensure that you have not missed anything. If you rush out of the lecture room as the lecturer starts to sum up, you may not realise that you have missed an important point. During the lecture, try to pinpoint the main idea that the lecturer is trying to convey. Ignore examples if they are illustrative only, but mentally try to formulate some of your own. Finally, revise your notes as soon as possible after the lecture. Now we will look at taking notes from texts and written materials.

Notes of texts
Why should you take notes of texts if the material is there before you? As we learned in the introduction to this topic, notes will help identify the main points of the text. The first thing to do is to ask yourself why you are reading the text. Once you have answered this question, you should be able to identify the main points. Skim over the text to get an idea of the general gist. This will also help you organise your note-taking structure by identifying the headings you will use. When you start to read, read from one heading to the next. Record your notes under those headings. You will usually
15 R Huseman et al, Business Communications: Strategies and Skills (3rd ed, 1988) 342–343.

Use the note taking method you have chosen. 4. and make a reference to it in your notes. Look at the title. correct any errors. While reading it is useful to question the purpose of the writing. involves a quick reading of the whole. There are a number of formal methods for taking notes of texts and these are included for your information. The final sentence will usually summarise what has been said in that paragraph. concluding paragraph.LAW00051 Topic 1 – Researching and understanding Australian laws 29 find the main idea in the first sentence of a paragraph. it is useful to look at the title. Why was the text written? Who is the intended reader? What is the writing context? What is the writer’s perspective? A further. You are trying to keep your notes brief. If there is an important block of text that you wish to remember. O’Meara17 suggests the S-I-M-E method: Skim the text you are reading for the general outline. 2. P O’Meara et al. it is essential that you also record the bibliographic details of the text. Test. Main points. more thorough reading (in chapter segments or from heading to heading) will help to identify the structure. Set yourself a question or goal. 345–346. 2. 5. If you are skimming a whole book. its introduction (or preface) and any conclusions. Read the title and subtitles. Skim the material to observe its structure and complexity and determine its purpose and relevance. subheadings. key sentences and phrases and conclusions. 16 17 . table of contents (note the headings). Preview. first paragraph. Make sure that you make notes of references to cases. If you do not wish to highlight your text. Huseman16 suggests the PQRST method: 1. Edit the notes. Inquire. 3. How is the text organised? How does such organisation assist you to understand the substance of the text? Huseman. Why am I reading this? What do I want to learn? Read. above n 10. Highlight the block. 3. Whichever method you use. Simply read the material in view of the question you have just asked yourself. do not write it out in full. table of contents to anticipate what the book is about. noting the introduction. legislation and/or articles. This is an active process. on the other hand. Question. a pencil line down the side of the block will indicate the relevant part and can be rubbed out later. one that means you successfully record the information that you will require during the course. Make them tidy. 1. so that you can cite the material you use if necessary. underline or highlight where relevant. Effective reading Effective reading means developing critical reading skills. Read the text and record the main points. The following sentences will develop or explain the main idea. How to Study Better and Pass Exams Confidently (1987) 39–40. Summarise. The most important thing when taking notes is that you choose the best method for you. Re-read your notes to see if they contain all the information you will require. Add any points that you have missed. Skimming an article.

T Hutchinson. Clearly. Only at that point can you proceed to be critical of the message. and in particular legal writing for law studies. Locate the Reading and Note-taking folder and read A Guide to Reading Effectively and Efficiently. . This process includes: • • • • • drawing out the consequences of what is said identifying underlying assumptions generalizing from particular instances. <http://www.edu. What’s next? In the next three topics you will be looking at the skills involved in legal writing. We will be looking at the way to prepare essays and to provide references – that is. See the list of ‘Further reading’ at the end of this topic. or perhaps where the account is incomplete. We will also look at legal problem solving and exam technique. and give reasons for not agreeing with the ideas conveyed. Ultimately.30 LAW00051 – Legal Research and Writing w Online activity Return to the Academic Skills Development Unit’s Academic skills information guides. 2006) 29. misinformed. Constructive criticism might include showing where the author is uninformed. illogical in their argument.scu. including how to prepare footnotes and bibliographies. because in your studies invariably you will be asked to critically analyse18 the material that you are reading. Hutchinson has described this process as involving the following. to cite primary and secondary sources. Part of the deeper understanding of the text may include the process of drawing inferences from what has been written.php/> at 7 November 2010.19 There is much more information available to assist you to become an effective reader. Lewis and Slade refer to this process as evaluation and include the following processes: • • • giving reasons for beliefs and decisions and then choosing how to act criticising ideas constructively modifying ideas in response to criticism. Researching & Writing in Law (2nd ed. good study skills don’t just happen. They are learned and refined with practice. 18 19 This will be explored in more detail in the next topic. what is essential is to understand the text.au/learningassistance/index. ie abstracting applying analogies to reach new conclusions recognizing cause/effect relationships.

. For example. dispute resolution processes. Who makes law depends on the type of law being examined. heterosexual men who come from an Anglo-Saxon background. paintings. (b) A range of different laws exist in Australia today. which prescribe appropriate behaviours between members of that society. those who have the power to make law have a great deal of authority over the society which they govern. Some societies base their laws on the writings of sacred ancient texts.LAW00051 Topic 1 – Researching and understanding Australian laws 31 f Feedback 1. attitudes. which is based on the English Westminster system. The law of what we might call the ‘mainstream’ (or non-Indigenous) legal system can be divided into two types: common law and legislation. As you can see. In mainstream Australia today. law-making authority is given to parliaments and courts by the Australian Constitution. carvings and other sacred objects. sanctions and penalties for failing to observe the laws. interests and morals of the society that it governs. The Butterworths Concise Australian Legal Dictionary21 says that law is: the subject matter of the discipline of jurisprudence. and positive law and natural law. For instance. Critical theoretical examinations of the law try to expose whose norms. as well as in the form of dances. 1999).1 (a) Law is defined in the Macquarie Dictionary20 as: the principles and regulations emanating from a government and applicable to a people. 20 21 A Delbridge. attitudes. law is said to reflect the norms. such as the Koran of the Islam faith. in Australia our parliaments and courts make laws for every one of us. 1998). whether in the form of legislation or custom and policies recognised and enforced by judicial decision. Those of us who don’t fall into that group may feel that the law-making bodies do not understand our views properly. Common law is the body of rules made by judicial officers in courts. schools of legal sociology emphasise the social significance of the law and its relationship to politics. For instance Indigenous Australian laws have been understood and passed on by generations of law men and women through the ages. The Macquarie Dictionary (3rd ed. and other traditions. Butterworths Concise Australian Legal Dictionary (2nd ed. (d) Generally speaking. interests and morals are being reflected within these rules. legal systems tend to have some common features including a process to make laws. (c) The source of authority to make laws depends on the political and social system in place in a given society. and schools of natural law jurisprudence examine more metaphysical issues about the precise essence of law and the relationship between law and morality. So on one level. P Nygh and P Butt. laws have been handed down through the centuries from generation to generation. and mechanisms and people to enforce the laws. But we might be tempted to ask how representative these law-making bodies are of our society. For instance. ranging from those of Indigenous Australians to those created by Federal Parliament and even Local Councils. the term ‘law’ refers to the rules and machinery that exist within a society to create order and regulate behaviour within it. what is included within the meaning of law may vary depending on the theoretical approach or the perspective used to understand and examine this framework of rules. positivist schools of jurisprudence focus on an examination of the framework of rules and regulations and their interrelationship. and therefore that the laws that they make may not always serve our interests. given that most of their members are (still) able-bodied. On another more philosophical level. mainly through an oral tradition. Law is defined differently according to the particular jurisprudential school or methodology within which one is operating. in Indigenous Australian society. Generally speaking. and legislation is enacted by parliaments.

F. Principles and practice of Australian law (Thomson Reuters. C et al. and Talbot-Stokes. 2009) Chs 6–9 Electronic resources Bott. 2008) Campbell. 6th ed. S and Tucker. 2009) Ellis. 2007) Cook. 2nd ed. A Practical Guide to Legal Research (Thomson Reuters. 4th ed. Surviving Law School (Oxford University. Understanding the Australian Legal System (LawBook Co. B. Indigenous People and the Law in Australia (Butterworths. Philosophy and Sociology of Law (Allen & Unwin. Press 2nd ed. 2nd ed. Connecting with law (Oxford University Press. P. M et al. and Talbot-Stokes. 2nd ed. J. M. C and Libesman. J. Watt. R and Nettheim. B. Understanding the Australian Legal System (The LawBook Co. J. 7th ed. A and Gilchrist. and Johnstone. R. R. 7th ed. Asking the Law Question (LawBook Co. R. . 2010) Chisholm. R and John. 2000) Milne. Researching and Writing in Law (LawBook Co. Laying Down the Law (LexisNexis Butterworths. 7th ed. 6th ed. G and others. 2009) Heilbronn. Concise Legal Research (Federation Press. D. An Introduction to Legal Resources on the Internet (Crucial Briefs Legal Research Services. G. H et al. 2003) The Australian legal system Carvan. Hoyle. 2002) Hunter. 2008) Sanson. F. M and Spencer. 6th ed. Introducing the Law (CCH Australia Ltd. Understanding Law (LexisNexis Butterworths. Concise Legal Research (Federation Press. Milne. 2010) Ch 1. The list of reference materials is provided for your convenience. 4th ed. 2010) Legal philosophy and jurisprudence Davies. A Practical Guide to Legal Research (Thomson Reuters.32 LAW00051 – Legal Research and Writing Further reading You are not required to purchase any of the following textbooks. 1995) Searching for international law Bott. K. 2nd ed. R and John. Thinking About Law: Perspectives on the History. 2010) Hutchinson. Students’ Guide to Legal Writing. Indigenous Legal Issues (LawBook Co. T. 3rd ed. You may wish to borrow one or more of the textbooks from the Southern Cross University library to help you better understand the content of Topic 1. 3rd ed. 2010) Ch 9. Law Exams and Self Assessment (Federation Press. 1997) McRae. 2009) Studying law Brogan. E. E et al. Nemes & Coss’ Effective Legal Research (LexisNexis Butterworths. 2010) Carvan. Ingleby. 2006) Kerr. S and Tucker. R. T. R. Indigenous peoples and mainstream laws Cunneen. 2010) Part II. 6th ed. 2nd ed. K. Nemes & Coss’ Effective Legal Research (LexisNexis Butterworths. 2nd ed. 2010) Watt.

LAW00051 Topic 1 – Researching and understanding Australian laws 33 Krever. 2010) . C. R. Mastering Law Studies and Law Exam Techniques (LexisNexis Butterworths. 6th ed. Law Student Survival Guide (LawBook Co. 2nd ed. 2006) Macken.

34 LAW00051 – Legal Research and Writing .

We will use the principles of plain language writing to help you to develop a good technique of legal writing. use the plain language principles in your writing. 35 . with a focus on ‘good’ styles of legal writing. their inflections. and their functions and relations in a sentence … the characteristic system of inflections and syntax of a language. In these you will see that it is essential to consider your purpose and your reader. and the words that are selected and how they are formed into sentences. the style of writing that is used. explain the importance to good writing of knowing your audience and your purpose.1 legalese the specialist and often obscure language in which legal documents are expressed. the importance of considering the person for whom the message is intended. You will also discover good reasons for eradicating legalese and gobbledygook from your writing. The New Penguin English Dictionary (2000).Topic 2 Writing style: Using plain language What we’ll do in this topic In this topic we examine the elements of ‘good’ written communication. Objectives At the completion of this topic you should be able to: • • • • • • • define the features of writing that make it ‘good’ and that improve the readability of written documents. we will look at the factors that make written communication ‘good’ – for example. Some important terms used in this topic grammar the study of the classes of words. To achieve this goal. identify the reasons why plain language principles have developed and why they should be used in legal writing. and recognise specific skills you need to work on to improve your writing. ‘Good’ in this context means effective – that the message intended by the writer is the message received by the reader. legal language 1 Robert Allen. explain the plain language principles. the importance of clarity in legal writing. define writing style and identify different styles of writing. and when and how to use technical terms – all with the objective of improving the quality of your writing.

as you will find out (or may have found) yourself the first time you try to read a case or a statute or even your unit readings. Before the 18th century. In 1731. to ensure that the ‘common’ person could understand them. even when they are in fact ignorant of it. It is … crucial that Parliament … does all that it reasonably can to make that part of the law for which it is responsible accessible to all in the Australian community. Nice idea. and so not surprisingly lawyers seem to have developed their own language – commonly called ‘legalese’.2 In Australia. Viking. and the amount of information packed into a sentence or paragraph can be overwhelming. legislation should be comprehensible by more people than just lawyers … Thirdly. people affected by proposed legislation should be consulted during the process of law making … For all of these reasons. The sentences may be long and complicated. Legal language has attracted a significant amount of criticism over time.goodreads. . but not quite the result.com>. the lawyer’s tool in the mainstream legal system is the English language because of the reception of the English legal system. a word (or group of words) that describes or explains another word (or group of words) in a sentence readability the level of formal education required to read and understand a piece of writing without difficulty style the features of a literary composition belonging to the form of expression other than the content syntax the arrangement of words in sentences and phrases of a particular language. accessible legislation is important for improved access to justice. and then later in Old and Anglo French. ‘Access’ to legislation involves several matters.36 LAW00051 – Legal Research and Writing modifier a word that describes or limits another word. These are full of new words with which you are not familiar and often you can’t work out their meaning – even by looking at them in context. In May 1994. all legal proceedings and materials were conducted in Latin. Access to Justice: An Action Plan (1994). you can be sure that it was written by a lawyer’. and Old and Anglo French. as legal language had already become littered with foreign concepts and terms that are not readily understood by us common folk. 461. ABC Radio National. Introduction Language is the lawyer’s tool. English itself developed from a mixture of languages including Norse. Access to Justice Advisory Committee. Celtic. 9 January 1996. Old and Middle English. First the law should be physically accessible … Secondly. quotable quotes (14 November 2010) <www. So many of the problems we face with legal language have a very distant origin. English was not regarded as appropriate as it was not considered to be sufficiently academic. Latin.4 2 3 4 Goodreads. The Law Report. the English parliament passed a law that required all legal proceedings and materials to be produced in English. Senate. But English has not even always been the British lawyer’s tool of trade. Most people are very intimidated by legalese. a Senate Inquiry into Access to Justice found that: People are presumed to know the law and are liable to be punished for breaches of it. A writer called Will Rogers made the comment that ‘[t]he minute that you read something and you can’t understand it.3 Legal language continues to attract criticism – legislation in particular – because of the difficulty non-lawyers have in understanding it.

Shylock fails to enforce his agreement because clever Portia finds an ambiguity in the agreement the two had made. science or law. much can be made of an ambiguous word. For instance. The essentials of ‘good’ writing Different disciplines have different styles and other features in their writing. the words expressly are a pound of flesh! And so Shylock. This is one of the prime reasons plain legal language principles have developed within the legal profession to increase the readability of the law. in legal writing. which we will discuss in Topics 5 and 6. So he walked away with neither his sum repaid. in such a place. but can work injustice by making it difficult for the community to understand the law. such sum or sums as expressed in the condition that the forfeit be nominated for an equal pound of your [Antonio’s] fair flesh be cut off and taken in what part of your body pleaseth me. who thought he had a clear and watertight agreement. arts. When Bassanio failed to repay the sum. nor one ounce of flesh! Although a graphic example – and one you may not want to put in writing effectively – it serves to show that good writing is an essential skill to develop to use your legal knowledge successfully and in such a way that you are meeting the high standard of professionalism that will be expected when you put your legal skills in practice.LAW00051 Topic 2 – Writing style: Using plain language 37 Thus. Using these rules. could not recover his pound of flesh – in case he got one jot of blood to which he was not legally entitled. that is. in Shakespeare’s play. As well as trying to convey information. The Merchant of Venice. Shylock had required that: in a merry sport if you repay me not on such a day. Regardless of whether an author is writing for an academic discipline such as humanities. the language that has developed over time and that is used by lawyers can act as a barrier not only to the readability of law. you probably have begun to notice the way – the style – in which legal writing is presented. if the debt is not repaid on the date agreed. Shylock enters into an agreement to lend Bassanio a sum of money. or the unclear use of words. they argue over their correct meaning and interpretation. However. when the hapless Bassanio fails to repay the sum on time. The debt is secured by a promise by Bassanio that Shylock will be given a pound of Antonio’s flesh (Bassanio’s friend). there seems to be general agreement that there are certain essentials that make writing ‘good’. a Activity What do you think are the essentials for good written communication? . We will be discussing writing styles more in a moment. Portia pointed out to Shylock that: This bond doth give thee no jot of blood. This process is underscored by the correct application of the doctrine of precedent and the rules of statutory interpretation. For instance. or if they are writing with another purpose in mind. lawyers also ‘play’ with words.

the Gunning FOG index. readability testing methods have gone out of vogue and have been criticised for their narrow focus on the number of words. though. various readability tests are described – for example. style. . We will look at each of these elements in this topic. the SMOG formula. and language. 5 6 7 Michele Asprey. His lawyer was able to establish that the question was beyond the man’s reading capacity and had been answered honestly in terms of his understanding.38 LAW00051 – Legal Research and Writing In answer to this question. An expert called by the prosecution agreed that the document could be classified as an academic publication requiring well above average intelligence to understand it. and number of sentences – basically.7 To learn how to write ‘good’ and how to improve readability. it is generally agreed that the essentials for good written communication are: • • • • readability. the Coleman-Liau Grade Level and the CLEAR analysis formula. See Mark Hochhauser. 2010). Throughout the communications literature. Plain Language for Laywers (4th ed.6 Dr Robert Eagleson gives an example of the consequences that flow from not ensuring that documents are readable. If you have a good look at your list. ‘Some pros and cons of readability forumlas’ (1999) 44 Clarity 27 in M Asprey above n 5. starting with the most important one – readability. for example. Readability Readability is the objective of good writing. the meanings of words in relation to the audience’s background. because they fail to examine a whole range of other matters.5 Over the last five to ten years. number of syllables. Did you include these in your list of essentials for good written communication? Perhaps you had others as well. analysis of audience. and sentence structure. 322–325. 323. the more difficult the message will be to understand. It refers to the level of formal education required to read and understand a piece of writing without difficulty. the Flesch Reading Ease Test. understanding of subject matter. R Eagleson. A South Australian man was prosecuted for fraudulently answering a question on an unemployment benefit form. various tests have been devised to check or ascertain readability levels because there is a belief that the more difficult words an author uses. we will start by looking at the use of style in written communication and how it can both impede and increase the readability of written works. as achieving this is always the objective of our writing. Writing in Plain English (1990) 4. The magistrate found the man not guilty of the charge. Since about 1923. the familiarity of vocabulary. you will find that each item you have listed could be categorised using one of the above headings.

So. And then all the phonies have to come around and tell you he’s cute as a bug’s ear. Anyway. for Chrissake! Nothing. I was walking through the forest and all when I see this very interesting house. 9. she became heavy with sleep. Now in the time when Edward was the king and when hair was naturally golden. like I was saying. my name is Goldie Lox. ‘Let us eat this child’. that really kills me. but it still sounds sort of phoney. Actually I was born bald.ca/faculty/mpaluch/PDF/Sylistic%20Paradies. Anyway. 4. who was the daughter of Peggy. who was the daughter of Nancy. . I mean I’ve seen them and they’re all wrinkled and slimy and red and everything. <http://kilby. and when she had couched herself on the smallest bed.8 Example 2: as in the style of Salinger – Catch Her in the Oatmeal If you really want to hear about it. Seeing about her three beds and three chairs. and the years of Goldilocks were two and ten.sac. 2. there dwelt in that land a certain maiden called Goldilocks. she rejoiced because of three bowls of pottage that lay on the table. She tasted the pottage in the three dishes and found that the smallest was good upon her tongue.on. 6. I always seem to be getting into these very stupid situations. And bald. 3. Entering through the open door. Like this time I was telling you about. When the sleeping maiden was found. but they 8 St Andrew’s College. We cannot take the credit for these gems. 8. she fell asleep. and her heart which was sad became joyful at the sight of a small abode. 7.1 Answer the question: What is style? Examples of different styles of writing Read the following examples of Goldilocks and the Three Bears and you will gain an appreciation of different styles of writing. boy. 5. And it came to pass that wandering in a forest one day she became lost. what I’d better do is I’d better warn you right now that you aren’t going to believe it. they counselled among themselves saying. You wouldn’t think anybody would be living way the hell out in the goddamn forest. But an angel of the Lord who watched over Goldilocks caused her to awaken and to flee into the forest. but my parents said that when I was born I had this very blonde hair and all. Now at the twelfth hour the bears returned to their house.PDF> (at 12 November 2003). that’s what. A house. A bug’s ear. Example 1: as in the style of the King James Bible 1. 10. and they were exceedingly full of wrath when they saw what had transpired. It’s sort of a boring name. We wish we were half so clever.LAW00051 Topic 2 – Writing style: Using plain language 39 Writing style Defining style a Activity 2. I mean it’s a true story and all. She was the daughter of Suzie. she tried each. You ever seen a bug’s ear? What’s cute about a bug’s ear. When she had eaten her fill. I mean how many babies get born with blonde hair? None.

By that time I was really feeling depressed. Anyway. . The smallest one broke with her. she tried from each. the broken chairs. No one was home or anything and the door was open. she tried out three chairs.40 LAW00051 – Legal Research and Writing were. No kidding. I figured what I’d do is I’d probably horse around until the guys that lived there came home and asked me to stay for dinner or something. Mother. Awakened and frightened by young Bruin. I don’t know. And the voice I heard when I woke up was probably something I dreamt. I don’t know how long I was asleep or anything. February 1958. So I didn’t stay around and shoot the breeze with them or anything. I started getting dizzier than hell. The smallest was the only comfortable one. the Bear family (Father. ‘Someone’s been sleeping in my sack. Seeing three bowls of consommé on the table. emptying the smallest dish. the tousled beds. I wrote it up once as a theme in school. 46–47. Tired from her walk in the woods. You got to meet her sometime.9 Example 3: as in Time magazine One day last week small. Then something very spooky started happening. adventurous Goldilocks stated. so I sashayed in. On the way home. I figured I’d feel better if I could just rest for a while. Sometime if you eat something like lousy oatmeal you can feel better if you just rest for a while. Anyway. above n 8. I finally found the crummy bedroom and I lay down on this very tiny bed. Questioned later.10 Example 4: Judgment of Snape. What probably happened is these bears wandered in when they smelled the oatmeal and all. but my crummy teacher said it was too whimsical. Probably bears like oatmeal. I was really depressed. I do that quite a bit when I am depressed like that. and there she is!’ So I open my eyes and there at the foot of the bed are these three crummy bears. St Andrew’s College. and the intruder. J in the matter of Father Bear & Ors v Locks In this case it is alleged by the plaintiffs that they have suffered damage by reason of the defendant’s breaking and entering upon the premises known as Bear Cottage situate at The Open Space near Puddleton in the County of Boomwell and while upon those premises consuming certain comestibles which the female plaintiff had prepared in anticipation of the family’s return from a 9 10 Dan Greenberg . ‘I always have been allergic to bears’. Bears! I swear to God. she’s a real queen. If you want to know the truth. I mean that’s all I ever seem to do. I mean it. I didn’t exactly feel like going home and getting asked a lot of lousy questions. Investigating the upper floor. that killed me. So that’s the story. So I sat down. though. while I was waiting I sort of sampled some of this stuff they had on the table that tasted like oatmeal. I’m not kidding. and small Son) returned to find the empty dish. It would have made you puke. curious. Exactly one hour later. Esquire. she discovered three beds which she tested. blonde Goldilocks entered the home of three bears. boy. I got to figuring. the girl fled. for Chrissake. There’s nothing more depressing than waking up and finding three bears talking about you. Also. ‘Three Bears in Search of an Author’. She immediately dozed. Some people think they have to ask you to stay for dinner even if they hate you. Whimsical. you start feeling lousy and some stupid chair is going to break on you every time. That’s when the goddamn chair breaks in half. I sort of ran out of there like a madman or something. but all of a sudden I hear this very strange voice say.

called a Mr Jack Ass.LAW00051 Topic 2 – Writing style: Using plain language 41 pre-prandial inspection of the estate and the curtilage of the manor and. what you are interested in. Each of the plaintiffs has given evidence and it appears that there is no dispute between the parties as to the essential facts of the matter. etc11 a Activity Look back over the four versions of Goldilocks and the Three Bears.12 well … what is her purpose and to whom is she writing? 11 12 C Valkenburg (1995). and so on. but the defendant denies that the adult male suffered in this way and. namely that of the infant plaintiff. The ‘J’ is an abbreviation used commonly by lawyers to indicate that Snape is a judge. Now. For instance. the reporter from Time intends to present a punchy and interesting account of the facts to the Time’s readers. while upon those premises and following the consumption aforesaid causing irreparable damage to one of three beds upon the premises. the parties are poles apart. to rebut the claim. He says that by having to wait for so long as it took for the female plaintiff to prepare a new batch of porridge for his consumption his metabolism was affected to such an extent that. Which one was the easiest to read? Which one caught your attention and made you want to keep reading? Which one made you want to stop reading … immediately? Your answers to these activity questions are reflective of you – what you like to find in written texts. the corollary to that is that the style used to write something may reflect the purpose with which the author is writing and the audience to whom they are writing. the author of the King James Bible would probably want to present the story to everyone so as to illustrate the protection afforded by God’s angels. as a result of cross-examination. possibly intending to project and capture the intensity of the feelings Goldilocks felt. the exercise resulted in an exacerbation of that problem as a result of which he has been caused to outlay considerable sums of money for medical and other associated expenses directly attributable to the incident. and therefore the benefits of faith. Medical evidence was called by the plaintiffs in support of this claim in the person of Dr Owl. the only dispute being as to the heads of damage to be considered and the quantum of damages which should be awarded. to anyone who wants to read his book. . further. far from easing the obesity problem from which he suffers. as to this. But what your answers would also reflect is why you would bother to read something in the first place. On the one hand the adult male plaintiff has given evidence that his health is in such poor condition that it is of vital importance for him to replace energy expended in physical activity immediately such activity ceases and that it was for this reason that his spouse had set the porridge on the table before the family set out from the house. a dietician whose qualifications appeared. Salinger is much more up-beat. a distinguished physician of the highest repute. etc. to be open to question etc. while Snape J.

by comparison. I make one – usually. formerly from the Southern Cross University Learning Assistance Centre. Legal texts can tend to be written in a complex and wordy way so that they are not stated simply. how we recommend they should. identified ten features of legal writing which tend to make it more difficult to read: The main point is often at the end of the sentence. Negatives are used regularly. or highly complex clause structures where asides and qualifications are inserted with the main ideas. . 3. legal writers talk about making a statement. 4. The tenses used vary. finally. a Activity Read the following passage. The structure of clauses within a sentence can also vary. The way ideas are organised in paragraphs can vary. The language may be gender biased (or indeed biased in many other ways!). 1. The reason for that usually is that legal principles do not apply universally and so the exceptions must be stated in order to be legally accurate. in the second sentence. if. we will not answer the question to whom and why Snape J is writing. Actions are often converted to things (nominalisation). likely. which can be.42 LAW00051 – Legal Research and Writing The style of legal writing For the moment. and sometimes. said to be. 6. somewhat. so that meaning must be teased out of a sentence. We will be encouraging you to avoid adopting these complex legal writing practices by teaching you how to use plain language principles in your writing. Provisos are indicated by such words as provided that. 9. from a simple form. such as henceforth. Modifiers are used a great deal. for example rather than stating something. an afterthought. 8. therein. for example a credit provider shall not … 7. 5. Modifiers are such words/terms as highly probable. this is often done using a complex writing style. I make three qualifications – tend. Jenny Pittman. It is a language of ‘things’. and provided further that. 2. thereunder. or looks as if it is. but for. 10. rather than being clear from the start. Words to join ideas (conjunctions) are often archaic and peculiar to legal writing. The main point is often added to or varied by a proviso. as we discuss both how lawyers tend to write and. we will focus on the style used by legal writers like Snape J to communicate legal information. and more than one main idea is often discussed in one paragraph. What would the writer need to do to ensure that the reader easily understands the message intended? That I my executors administrators or transferees will insure and so long as any money shall remain secured by this mortgage keep insured against loss or damage by fire in the name of the mortgagee or his transferees in some public insurance office to be approved by him or them all buildings fixtures or other improvements which shall for the time being be erected on the said land and which shall be of a nature or kind capable of being so insured to the amount of 13 How many times are the ideas in this paragraph qualified? Answer: in the first sentence. more often than not. For the moment. and more often than not they are qualified – at least once and sometimes several times. such as the presentation of two or more ideas of equal importance joined by an ‘and’. not consistent with.13 However. Those answers will unfold in our discussion below. in consequence.

and uses appropriately structured sentences. Your next reading describes some important features that mark a good style of legal writing. such as writing an academic work like a journal article. government policy advisers. a set of principles that have been in use within the legal profession for the past couple of decades. and their ideas about how they would like to take legal action. ‘Instructions’ is used to describe the information provided by a client to a lawyer. 14 15 16 JK Aitken and P Butt. Notice that the identity of the audience is key to determining readability. As for other types of writing. and so on. In the reading. The Elements of Drafting (10th ed.1 JK Aitken and Peter Butt. 2004) Ch 1 Like any other type of writing. The Elements of Drafting (10th ed. Now. in-house counsel.16 Activity 2. But it also illustrates that there is a distinct legal writing style. including solicitors. drafting15 to produce legal documents. if that work is to be credible and convincing.14 Now. uses appropriate language. barristers. the authors are writing about a particular type of legal writing – that is. their ideas about what they want to achieve from taking legal action. 2004) 6. including the facts that relate to their situation. legal researchers. The practice of law is no longer just about solicitors. welfare workers in law-related fields. and that they must achieve a high professional standard in their work. A range of professional positions may fall into the category ‘legal practitioner’. legal writing is not automatically bad … but as the example shows. 17 . is written to its audience. good legal writing displays the features we described in the introduction to this topic: it is readable. it can be done better. The other features of good legal writing that the authors of Reading 2. legal academics. readability is the prime objective behind the principles of plain legal language. In other contexts. They can – and should – be held accountable to their clients if they fail to do so. Do any of those features appear in this passage? You may have found that this example reflects all or most of the characteristics of legal writing identified by Jenny Pittman. and are features that ensure the readability of a document for the audience for whom it is written.2 (a) What do the authors suggest are the features of a well-written legal document? (b) What are precedents used for? It is essential that legal writing be comprehensive and accurate. This is a lawyer’s way of saying ‘writing’. paralegals. They identify the elements of writing that will be featured in a document written from a client’s instructions. it uses an appropriate legal style. The failure to be accurate and comprehensive may have serious consequences for a client – or for the lawyer representing the client! All types of legal practitioners17 must bear in mind that they are providing professional services to their clients (or employers). r a Reading 2. When I refer to ‘legal practice’ I mean all of these things. consider the features of legal writing identified by Jenny Pittman.1 identify are also very important. it is equally important to be accurate and comprehensive.LAW00051 Topic 2 – Writing style: Using plain language 43 the principal money hereby secured or of the full value of such buildings and will where so required deposit with the mortgagee or his transferees the policy of such insurance and at least seven days before each premium is payable the receipt for such premium.

Textbooks.44 LAW00051 – Legal Research and Writing What is plain legal language? Briefly. As Michele Asprey notes: One thing lawyers pride themselves on is precision. When using plain language. Plain Language for Lawyers (3rd ed. Plain English is clear.19 So. A hallmark of plain legal language is that it uses ordinary words – but does so with precision and clarity. This means that writers of plain English must vary the way they write their documents according to the composition of their audience. 4. explains that it is: [t]he opposite of gobbledygook and of confusing and incomprehensible language. As noted above.2 Information’ and ‘Summons with Information’. legislation and other legal documents are now being ‘plain languaged’ to improve their readability. plain legal language is about simplifying legal language and making legal information more accessible by improving readability. It is not baby talk. A plain language document needs not only to be clear and straightforward but also precise and complete. But plain legal language principles are not only about language. r Textbook McDonald and Clark-Dickson (M&CD). inflated vocabulary and convoluted sentence construction. layout. Writing in Plain English (1990) 72–73 18 19 Eagleson. and plain language lawyers agree. They make sure that their audience understands the message easily. a proponent of the use of plain language. plain language or plain English is a way of writing that ensures the readability of a document for its audience. the reader sets the context of our writing and determines the appropriateness of the language used. We never sacrifice completeness or precision for simplicity. and the mode of our communication – all of which are designed to improve the readability of our document so that our audience (our reader) – can understand it. It does not forsake precision or completeness. Dr Robert Eagleson. nor is it a simplified version of the English language. The principles also include guidelines for the organisation. above n 7. Writers of plain English let their audience concentrate on the message instead of being distracted by complicated language. legal writing must be comprehensive and must be accurate. generally. r Reading 2. design. reproduced from R Eagleson. using only as many words as are necessary. It is language that avoids obscurity. We aim to achieve all of these things together. . straightforward expression. 2003) 14. Ch 1 ‘What is Plain English?’ The legal profession has been recognising the value of using plain language in legal writing for some time. and so lawyers do not have to sacrifice these fundamentals to write in the plain language style. and therefore make them more effective forms of written legal communication.18 Ros McDonald and Deborah Clark-Dickson also stress that writing in plain English is all about readability. M Asprey.

The benefits of using plain language The plain English approach to legal drafting was prompted in the mid-1970s in the United States when the company. Citibank. verbose and antiquated language – and a profession reluctant to step outside of the ‘tried and true’ for fear of being proven wrong. • • • We would add two other factors that contribute to the complexity of ‘traditional’ forms of legal language as it continues to be written today: 1. The courts devised a system of fees for preparing and filing documents which was based on the number of pages. a number of characteristics associated with the traditional form of legal writing detract from its readability.1 that this problem is no longer of great significance. 2. So we are left with the context and history of legal writing being set in complex. the use of precedents (see pp 8–9 of Reading 2. Lawyers pass on their ‘craft’ to new lawyers in such a way as to make them conform to the traditional ways of doing things. we have compelling reasons for lawyers to change their approach to writing. Nonetheless. above n 19. the higher the fee. One of the aims of this unit is to teach you good habits now. above n 19. In Plain Language for Lawyers. A feature that gave rise to this litigation was that the clients could not understand the legal effect of these loan 20 21 Asprey. the longer the document. Asprey. and when it became more common to write legal information (with the invention of the printing press). noted next.’ Aitken comments in Reading 2. developed a new plain language consumer loan note. There has been a dramatic increase in the amount of precedents – both case and documents – and their legitimation by years of judicial interpretation and use. Ch 2 and 3.LAW00051 Topic 2 – Writing style: Using plain language 45 a Activity Look at Reading 2. It contains many foreign words and concepts. . is probably now of more significance. which sets out the old and the plain language version of the Victorian Information/Summons – the document used by police to initiate a criminal charge.2. However.20 Michele Asprey adds the following to this list:21 • Law was originally an oral discipline. legal writing has attracted much criticism over the centuries and the traditional style of legal writing features many characteristics that affect its readability.1). it led to a ‘deluge of words’. Citibank found itself to be the third highest litigant in proceedings seeking to enforce loan agreements with clients. However. ‘The problems in the legal world were exacerbated by the discovery in the 16th century of the concept of the filing fee. As expressed by Jenny Pittman above. Do you think the new version improves the readability of the document? Why/why not? Should plain language be used in legal writing? Legal writing is hard to read! As we have said. many of the costing mechanisms used by lawyers continue to be based on the number of words written. when you work in the legal profession. instead of you picking up bad habits like the rest of us have. Prior to this.

the use of plain language in legal writing has been a growing trend throughout the world. 33–34. Brysland is clearly of the view that lawyers are unnecessarily reluctant to use plain language. Ibid 1103. For instance. 33–56. Many legislative provisions create obligations to adopt plain language writing principles.24 Should lawyers use plain language? Some lawyers are still reluctant to launch into plain English or plain language. Lawyers become stuck on these formulas as tried and true. However. particularly for the production of consumer and credit information. and therefore regard them as the only safe formula to use.26 He points out that the arguments used by lawyers to criticise plain language often misunderstand the principles underlying plain language. Therefore an old interpretation may have little relevance to the modern use of a word.46 LAW00051 – Legal Research and Writing agreements. or are harsh and unfair. above n 19. and so failed to perform their obligations. Asprey points out. supported by legislation. G Brysland. in an effort to improve the readability of legal documents – and therefore to improve the efficacy of written legal communication. deceptive or likely to deceive. 20. Asprey.27 Further. . reduced its litigation rate and increased its market share dramatically. takes on magical and immutable qualities: a meaning which is not subject to challenge. What are the other benefits? Various studies have found evidence of the following benefits of plain language writing:23 • • • • • time saved in completing forms reduced need to amend forms later less effort to understand forms fewer questions from form processors fewer applications rejected because of form problems. ‘Drowning the fish’ (1992) LIJ 1102. After it commenced using its new plain language document.25 She goes on to explain that words themselves do not have true meanings. 52–57. Asprey. he stresses that those drafting legal documents must consider the effect of laws applicable to the transaction 22 23 24 25 26 27 Asprey. and see Ch 12. There is a trend in our court. There are also legal rationales for adopting plain language in legal writing. As illustrated by Citibank’s experience. but instead have meanings that are commonly accepted from time to time. above n 19. in particular to the doctrine of precedent. lawyers then tend to believe that that word or phrase. above n 19. above n 19. Citibank received high praise from its clients. he points out ‘ordinary words used without precision will lead to disaster just as easily as the product of legalese and convolution’. to scrutinise the readability of documents to determine whether they are unconscionable.22 Since then. This relates. Asprey. ‘[i]t is not the words or the complex sentence structures that the judges have prescribed – it is the concepts’. When a word or phrase is given a judicial interpretation. In reality this is not true. companies and government organisations may also experience cost savings through reduced litigation against them or against their clients. They also tend to believe these words and phrases have a ‘precise’ legal meaning that cannot be modified.

3 Answer the following questions. As we’ll see. Writing in Plain English (1990) Activity 2. will depend on whether using the principles will improve the readability of the document – that is always the objective to be achieved when using plain language. Using plain legal language in your legal writing The measure of success for legal writing is not how well the drafters manage to sound like lawyers. 1. lawyers can confidently use these principles in their writing. Plain English and the Law. to ensure that the document is consistent with those laws. knowing who your audience will be and writing to them using language appropriately and effectively. from Dr Eagleson’s reading. (a) Where would you use plain language? (b) What are the features of plain language? (c) Does plain language only look at the way words are used? (d) Why is it important to revise your document when you have finished writing? 28 VLRC. but how well they achieve accuracy of content combined with plainness of expression.28 As stated at the beginning of this topic. If improved readability will not be the result. Whether you should follow any or all of the plain legal language principles when writing a legal document. they will meet their legal obligations. the plain language principles are no more than good old common sense. and they will achieve a high standard of professionalism in their work. Now. Largely. the laws that apply to those documents must be taken into account when drafting.3 Edited extract from R Eagleson. using an appropriate style. They. like other professionals will enjoy great benefits from using plain language: improved communication with clients and other professionals. we think that you will find that using plain legal language principles will bring positive benefits to your written communication. don’t follow the principles! Nonetheless. and structuring sentences effectively. It should be emphasised that plain language is not a set of concrete principles that must be followed slavishly in every instance. these essentials are the backbone of the plain language principles. the essentials of good written communication are: ensuring your document is readable. Instead they are a set of guidelines. we’ll describe the principles of plain language and how to use them. Given that the concern of achieving legal accuracy can be met by the use of plain legal language principles. r a Reading 2. Report No 9 (1987) Appendix 1. which present well-defined suggestions to improve written communication. . Legal documents do not operate in a vacuum.LAW00051 Topic 2 – Writing style: Using plain language 47 involved in the document.

.48 LAW00051 – Legal Research and Writing The prime purpose of plain language is to ensure that a document is readable. He adapted his writing to his audience. the reward is that your message will be delivered in a form that your audience can understand. Ch 5. The reason for this is that the objective of your research is to achieve your purpose. We will follow Dr Eagleson’s headings to enable us to group these principles together. Therefore. In this highly acclaimed. above n 19. a complicated instrument employed to ‘determine the altitude of heavenly bodies from which the latitude and time can be deduced’. In some respects. they should know the audience to whom they are writing. and keep it in mind as you design your document. 29 See Asprey. Why are you writing the document? What do want to achieve? Define this from the start. Let’s look at how each of the principles of plain legal language works. He illustrated copiously for additional clarity. but not as well-renowned book. Audience – who is your reader?29 Regardless of what good writing principles you adopt. like all others. This reminds us of the praise the poet and author of Canterbury Tales. For example – he kept sentences uncomplicated and words simple. want their audience to understand their messages. The same applies to your writing. language. This may not seem too surprising until one realises the audience for whom this particular treatise was penned – Chaucer’s ten-year-old son. He repeated important points so that they weren’t forgotten. audience. So as we assume that legal writers. Dr Eagleson groups the features of plain language – used to improve readability – under the following headings: • • • • • • • purpose. Chaucer explains how to use an astrolabe. you must always keep your purpose in mind to ensure that you are researching in way to achieve that purpose. If you were to look at the style Chaucer adopted when writing this treatise you will see that he considered his audience (his ten-year-old son) then instinctively applied the same principles we have been talking about. design. This will make it easier for us to implement them into or our own writing. but for another book of his entitled A Treatise on the Astrolabe. the purpose of a research project has an enormous effect on how you should go about doing the project. not for this famous publication. organisation. and revision. identifying your audience is the most important aspect of legal writing. Purpose As we noted in Topic 1. Geoffrey Chaucer (1343?–1400) gained. Your purpose will guide you in designing your document to ensure that you achieve your purpose. topic.

you will be a more effective legal representative in the long run if you keep your cool and maintain a professional approach to the matter. like in a job application. 30 Asprey. and will not be impressed if a letter brawl has erupted between the two legal representatives. your faithful servants’ – might suggest grovelling. a solicitor’s firm. a barrister. your writing will tend to have a formal tone. maybe a government department.30 You might patronise your reader by using phrases like ‘obviously’ or ‘as you are no doubt aware’. or requesting something. The degree of formality you will use will vary according to your working relationship with your reader. . However. trying to buy some time that you don’t really deserve? In any event.LAW00051 Topic 2 – Writing style: Using plain language 49 So to write legal documents well. Our experience suggests this is not always easy. it is important that you do not enter your client’s dispute. just as when we talk. above n 19. you need to identify your reader. This does not mean you have to grovel. In other words. or the other person in a dispute. Stay out of the dispute! When you are advising a client in a legal matter. For instance. because your reader will be a client. we tend to adopt a particular tone that will vary according to our reader. Your tone is usually set by the message you are trying to convey. what is the level of their understanding of the topic and of the English language generally? Do they have legal knowledge? Will they understand legal jargon and technical legal words? Tone and courtesy Another aspect of knowing your reader is ensuring that you speak to your reader in an appropriate way. When you are working in a legal practice. But it does not mean patronising the reader. It involves being sensitive to the difficulties the reader may be experiencing. you may find that tempers flare all around! However. to ensure your writing remains effective. you must be courteous to your reader. a court may have reason to look at your letters and documents at a later date. When we write. to ensure that they suit your reader. This determines whether we are familiar. 88. dear sirs. and adapt your writing style and the language that you use. recognising the level of understanding the reader has and supplying whatever additional information the reader may need. like writing to our friends. Another aspect of courtesy is ensuring that you do not patronise your reader. Remember. Asprey puts it this way: Taking a professional approach involves recognising the duty we have as lawyers to assist our readers to understand the law as it affects them. Is it a warning to another party that you are about to take immediate legal action against them? Are you putting forward a proposal to settle a dispute? Are you being conciliatory. don’t make the issue a personal one between you and the other legal representative. when what you are saying may not be obvious to them at all. Using a phrase such as – ‘We beg to remain.

50 LAW00051 – Legal Research and Writing Topic Once you have defined your purpose and your audience. you then need to determine what your topic is. What plain language features have been used to improve the readability of this document? . By the same token. Answer the following questions. However. and so what it is that you have to say. you would assume that they already have that background information. 2. Or you could make a list of headings that represent the main ideas you need to cover in your document. andº that your audience understands your message. you will need to give them background information to help them understand your main point. don’t over-complicate the issue by giving them more information than they need – or want – to know. (a) Why should you organise your document before you begin writing? (b) What should come first? (c) How can you organise the materials within the document? You may find it useful to plan your document by preparing a flow chart of all the information that must be included.4 Having read Chapter 2. return to Reading 2. In other words. you must then consider the best way to organise the material within the document – that is you should organise the information and plan the order in which it should be presented in the document. that you achieve your purpose. In short. r a a Textbook McDonald and Clark-Dickson. to ensure two things: 1.5 Look again at Reading 2. you need to determine what information it is necessary for you to include in your document. and then noting down all of the relevant information in point form under those headings. and so you would not need to repeat it in your document. stick to including the information about your topic that your reader needs and that they want. Activity 2. that is your advice.3 and re-read the first five pages. if you need to explain a complex legal argument to a client. if you are writing to another lawyer. For instance. Organisation Once you have defined the information that should be included in your document. Ch 2 ‘Planning Your Document’ Activity 2.2.

Ch 4 ‘Non-Discriminatory Language’ Reading 2. Legal professionals are another group renowned for the tendency to use disciplinespecific language and jargon. (a) The motorist was stopped by a custodian of the law and found to be in a state of inebriation. or in other states and territories. (b) My ego cannot sustain any negative perceptions verbalised to me by close associates. or listened to some expert in something and been convinced that you must speak a completely different language as you didn’t understand one word you’d heard or read. 1992) Ch 8 Discussion question Many people believe that their freedom of speech is reduced when they are obliged to use non-discriminatory language.php/4/. They see it as merely ‘political correctness’. Political correctness has been given a bad image by these people.scu.LAW00051 Topic 2 – Writing style: Using plain language 51 Language – the choice of words Non-discriminatory language Our choice and use of language is powerful. (d) The report is written in chronological order according to the sequence in which the events occurred.au/equity/index.edu. 31 See various policies and publications on the Southern Cross University Equity and Diversity website at <http://www.> . who describe it as merely a fad or a way of restricting people’s thoughts. Sociologists and computer experts are two well-known groups who are renowned for taking ordinary English words and attaching discipline-specific meanings to them so that only those initiated in and a party to the discipline can understand what they are talking about. (c) The Deerhunter is a violent cinematic experience. what is the effect of using discriminatory language? The use of language – choosing our words English is the most commonly used language in Australia. It is a policy of the University that nondiscriminatory language is used in your written and oral assessment. but we are sure there have been times when you’ve received a letter. It is important that you learn to write using nondiscriminatory language. According to this reading. a Activity 2. read a newspaper report. Style Manual for Authors. In fact. Editors and Printers (5th ed.31 Indeed. using discriminatory language may breach anti-discrimination laws in New South Wales. r r a Textbook McDonald and Clark-Dickson.4 ‘Non-discriminatory Language’ in Snook & Co (ed).6 Rewrite the following sentences using language that most people would understand. lawyers have manipulated the English language to such an extent for so long that there is a common and well-known word for their jargon: legalese.

such as legalese. terms of art and legal buzzwords Each field of study or discipline has technical terms and develops its own slang and way of talking. it can act as a barrier to those uninitiated within the discipline. nonetheless. in written and oral discussions. When choosing the language we should use to write a legal document. As you will see. rather than to try to describe in words the location of a property. Plain Language for Lawyers (3rd ed. When we use the technical words and jargon of a discipline. and Asprey is not suggesting that we do away with them all.52 LAW00051 – Legal Research and Writing a Discussion question Do you think that using a plain language vocabulary in legal writing would ensure that is a more effective style of communication? Why? Why not? We look at choosing legal words effectively in more detail below. we must keep this need for accuracy in mind. it is appropriate to use this technical language and jargon. It is essential that you never sacrifice completeness or precision for simplicity. it is better to include a map in a document. 2003) Ch 7 You may have gathered from your own reading that too often legal practitioners use the excuse that the language of their profession is in itself complex and that any attempt to break it down for a general audience would interfere with the message. but that we be more selective in how we use them. using plain language does not just mean that that you will use simpler or fewer words. we must choose and use language and words that will ensure that our writing is accurate and precise. Understanding our purpose and our audience will assist us to gauge and set language to ensure the readability of our written work. Words are not the only way Finally. Language – the use of legalese and technical legal terms r r Textbook McDonald and Clark-Dickson. and will be familiar with the word. Technical terms. Uncommon or technical words may be used appropriately if you know your reader(s) is a specialist. This of itself isn’t bad or wrong. terms of art and legal buzzwords. It’s only when this technical language or slang is used to exclude outsiders that it becomes unacceptable.5 M Asprey. There are many technical legal terms. This is not necessarily true because our use of plainer or clearer language will depend on our audience and what we need to do to achieve the objective of making our writing readable. As we have already said. Therefore. and which will be understood by our reader. However. think about this: are the words the best way to convey your message? For instance. In many instances. preventing them from understanding that discussion. . the way to determine when this is appropriate is by considering both the purpose and the audience of the discussion. lawyers are concerned that their writing must be legally accurate and comprehensive. Ch 3 ‘Avoiding Legalese’ Reading 2.

Where should you look if you do not know the meanings of these words and phrases? (i) (ii) (iii) (iv) 32 33 ab initio loss occasioned thereby devise save and except Asprey. If a word adds nothing. Similarly. Archaic words a Activity 2. this habit is due to the origins of legal language. as legal language was derived from a number of languages including French and Latin. In fact. .LAW00051 Topic 2 – Writing style: Using plain language 53 As she says: Using technical terms in legal writing is acceptable if the writer either explains what they mean or is sure that all the likely readers will be able to understand. The best advice is to delete them! Instead. above n 19.33 For instance: give English devise Old French bequeath Old English Look carefully at the words. Lawyers tend to hold onto these. Often. and other phrases.7 (a) If you use technical legal terms. there is no need to use more than one word to say it. because this is the tried and true way of saying things. Using the occasional technical term will not mar an otherwise well written document.32 a Activity 2. The main problems are more to do with long sentences and unfamiliar. terms of art or legal buzzwords. The Law Report. you shouldn’t use it. more than one word is used to describe the same concept in order to reflect the Old English and French words. it is not really the technical terms that cause problems for readers of legal documents. what must you do? (b) Should you use Latin phrases? Word strings. above n 3. complex sentence structures. lawyers often use what Asprey describes as ‘word strings’ – a kind of throat clearing ritual: It is important to note that … At this point in time … We refer to previous correspondence and now advise as follows … These can sound insincere. Provided you are accurate in what you say. to decide for yourself whether each of them means the same thing (synonyms) or whether they have distinct meanings.8 (a) Why should you avoid using archaic words? (b) Write a plain language alternative next to the words and phrases listed below. synonyms and word clusters Lawyers have a habit of using several words to say one thing. get to the point and say what you mean. 116. To a large extent.

Two ideas equal two sentences. (iv) The tenant. (c) Where should you place definitions in the document? Language – sentence structure and grammar Structure of sentences We have no intention of teaching you how to structure sentences. The following set of readings was developed by the Learning Assistance team (now the Academic Skills Development Unit) and provide guidance on how you can improve the structure of your sentences and how to use grammar. However. will be responsible for payment of water usage charges. to guide your use of definitions. we will make the point that you should avoid writing long and complex sentences. Definitions a Activity 2. a Activity 2.9 (a) When should you use definitions? (b) List the pointers suggested by Asprey. (a) Why are long sentences difficult to read? (b) How can you write sentences more effectively? (c) Re-write the following sentences: (i) The photograph of damage to the fence. Most libraries carry a fair range of texts on this topic. Just remember the basic rule in sentence structure.3 entitled ‘Long sentences’. (Note these . the evidence of the neighbour and the report by the builder supported his claim. as well as being responsible for the usual utilities. It should express just one idea. (ii) The bank manager agreed to take into consideration the development proposed in full and complete detail by the developer with the largest stake in the project. which is a sentence should make but one statement.54 LAW00051 – Legal Research and Writing (v) (vi) (vii) (ix) (x) (xi) (xii) mens rea chattels not more than uberrima fide will and testament mutatis mutandis null void and of no effect (viii) with a view to (xiii) in personam (xiv) expiration (xv) inter alia (xvi) in the event that (xvii) et seq (xviii) at this point in time (xix) res ipsa loquitur (xx) on each occasion when.10 Read the section in Reading 2. Answer the following questions. (iii) The dental service that was approved will visit your school on a regular basis to check the teeth of all children between the grades of three and six.

scu. and you will use the future tense if you are writing about an event which is going to occur. Past: The courts have enforced the marijuana laws despite community opposition. As well as using punctuation and grammar correctly. Writing Sentences. <http://study. The sentence will be shorter and clearer. Don’t write: I will take into consideration … Write: I will consider … Avoid double negatives Don’t write: It is not unlikely that … Write: It is likely that … Design The design of your document refers generally to way it is laid out or presented.6 Learning Assistance. as do our facial expressions and intonation when we are speaking. Sentences and Clauses. Punctuation.edu. Future: The courts are going to enforce the marijuana laws despite community opposition. you will use the past tense if you are writing about an event that has already occurred. Use the active voice Use verbs in the active voice. there are some of guidelines you should follow to help you to use grammar to improve your writing. Paragraphs. Use the present tense Present: The courts enforce the marijuana laws despite community opposition.au/la/guides/> at 25 November 2003.au/la/> at 7 November 1999 Punctuation and grammar Reading Read the pamphlet on punctuation in Reading 2. Editing Your Writing. from your textbook and in your book of readings.scu. Of course. <http://study.) r r Reading 2. edu. rather than the passive. Punctuation adds meaning to our writing as well as bringing it alive. stress the importance of using the appearance of your document to enhance readability. . but there are a number of other very useful Academic Skills Information Guides that you can access.LAW00051 Topic 2 – Writing style: Using plain language 55 particular guides are no longer available on the Learning Assistance website.6. The following readings. Your presentation can also work to improve the document’s readability. For example: Passive: Active: A decision was made by the council that … The council decided that … Don’t turn verbs into nouns (nominalisation) Use verbs to describe activities. The present tense is more engaging and immediate to the reader.

. What should you check when editing and revising your document? Plain legal language works! Finally. and using a consistent design style in your document. be assured that plain legal language works. underlining (but take care. Revision It is important that you check your document before you send it to your reader. using upper and lower case effectively.3 and the guide entitled ‘Editing Your Writing’ in Reading 2. Ch 5 ‘Document Presentation’ Reading 2.34 which sets out a clause of a contract to define when legal proceedings should take place. We would suggest the second version is a great improvement – as well as being legally accurate and comprehensive! Version 1 Proceedings in respect of a cause of action arising under this section (in this sub-section referred to as ‘cost proceedings’) in relation to proceedings instituted in or before a foreign court (in this sub-section referred to as the ‘foreign proceedings’) may be instituted. using white space to ensure the information is not crammed in. as text that is underlined can sometimes be difficult to read). you should not write your text all in capitals. 617. that it achieves your purpose and that your reader can understand it.56 LAW00051 – Legal Research and Writing r r Textbook McDonald and Clark-Dickson.11 Re-read the section entitled ‘Revising and Editing’ in Reading 2. a Activity 2. ‘Plain English and the law’ (1988) LIJ 614. notwithstanding that the foreign proceedings are still pending.6. generally. Look at the following example. Sydney.7 Centre for Plain Legal Language. if the parties have a dispute about the contract. listing information with numbers or bullet points. to make sure that it is written effectively in plain language. University of Sydney Law School. Designing Your Document. in respect of recoverable costs and expenses that have been incurred by a defendant in the foreign proceedings at any time before he institutes the cost proceedings (other than recoverable costs and expenses in respect of which cost proceedings have previously been instituted as provided by this sub-section). and the institution of cost proceedings under this section in relation to foreign proceedings that are still pending does not prevent the 34 M Ricketson. undated Other features to improve readability that you can use in your document design include: • • • • • • • • selecting a readable typeface and typesize. highlighting. the use of indexes and tables of contents.

just that you can identify the problem and fix it. We will provide answers and a short summary of the reason for the change. Version 2 Proceedings may be commenced at any time for recoverable costs and expenses incurred in the foreign proceedings and at later times for recoverable costs and expenses subsequently incurred. a Discussion question Why would many lawyers tend to adopt the wording used in version 1. others of you may intuitively know there’s something amiss. It doesn’t matter . mechanics. they learn and apply that knowledge in future writing. 35 Claire Valkenburg. using a spellchecker (if using a word processor) and a dictionary. grammar and syntax. punctuation. Read the instructions carefully before you start. Its purpose is to provide students with a quick way of identifying their strengths and weaknesses as listed above. Research has shown that often if students are alerted to a particular punctuation error (or writing problem) in this quickened way. after judgement has been given in the foreign proceedings or the foreign proceedings have been discontinued or otherwise terminated. we would like you to attempt the self-test.LAW00051 Topic 2 – Writing style: Using plain language 57 defendant form instituting cost proceedings. in respect of recoverable costs and expenses (other than recoverable costs and expenses in respect of which cost proceedings have previously been instituted or provided by this sub-section). Ch 8 ‘The Finishing Touch’ The following self-test activity was constructed by a former staff member35 after complaints from professional bodies and associations that universities were producing graduates who lacked professional writing skills.this is not a course in fundamental writing skills – it is a course designed to improve and enhance existing skills. we would like to bring to your attention some other factors that detract from the quality of your writing. revising and editing your work. diction. rather than writing their document in the style of version 2? Other things that can affect written communication Finally. Some of you may remember the rules guiding the grammar of our language and the syntax of our sentences. With that in mind. In our experience. These can be avoided by: r Textbook McDonald and Clark-Dickson. Have a go and see if it works for you. and getting someone to proofread your work. . these include: • • • • • • • • spelling errors. There is no expectation that you need to know why the sentence has a problem.

the employees should benefit. Ronald McDonald in Coffs Harbour. but can we believe them. mechanics. Have you seen the new acquarium in Adelaide? 13. 5. Hint: Use one of the online dictionaries if you don’t have a hard-copy version on hand. punctuation. Rewrite each exercise – on this page will do – and handle your correction as clearly. Keneally. Many businesses are conducting their own feasability studies nowadays. 7. Each section is headed to provide a clue to the error. I will be a woman of independant means. 6. Did Lewis Carroll write the poem ‘Alice at the Palace?’ . An acquaintance has just told me that Australia’s new surface to air missiles should be operational by the beginning of May. click on ‘Online resources’ and then ‘Useful websites’. Four important Australian writers are: White. 16. Or go to <http://www. There are many arguements in favour of lowering the scores for tertiary entrance. grammar. 18. verbose writing). the one. There are three principle ingredients in the recipe. The acommodation was luxurious. pocket-money was a privlege. neatly and economically as possible. Punctuation 14. The development of the silicon chip has effected workers in many industries. Each sentence contains only one error. who studied in America recently. 21. It has been reported that Alexander Downer has resigned 17. Smith switched on the light. The new secretary has all ready typed the mortgage documents. You need to seperate the egg yolk from the egg white. 9. Forty days from now. Go to the SCU Library home page. All parts of a business report should convey information . 10. or diction (redundancies and deadwood – that is. 20. Peacock and Chipp were not surprised that so many people voted informally. 15. syntax. Then scroll down to ‘Dictionaries’. 19.even it’s title should be informative. com/> 1. Of the two books I prefer the one written by Campbell. Extra assistance is needed by the following branch managers. and Colin Peters in Taree. My eldest daughter who finished her degree last year is now working in Sydney. 23. If the union’s reccommendations are adopted. 8. 24. 2. When I was a child. 3. was not suitably qualified. 22. The pollsters have assured us that the coalition will win the election in March. not a right. 11. Jones saw a movement in the shadows. Phillip Marks in Port Macquarie. 4. Of the two applicants. Dawe and Wright. a Self-test activity 2. 12.12 Spelling Identify the misspelled word and make the change with your pen. When the women have finished cooking the men will do the dishes. The party leaders – Hawke.thefreedictionary.58 LAW00051 – Legal Research and Writing Self‑test Each of the sentences on the following pages contains an error in spelling.

25. There was only one Ford and two Holdens waiting at the traffic lights. 35. and has a bad temper. Chris and Rex is an unbeatable combination. Clements learned computer programming quicker than I. She acted as if I was not here. 26. 30. According to a report in Saturday’s edition of The Australian. Grammar 34. Woody Allen. they decided to appoint Peter Petherbridge immediately. 43. Watching the gymnasts. cheeky. is working on a new film with Ingmar Bergman. More and more Australians own video recorders. 50. He is one of those students who finds study quite effortless. and to fish in the local streams. Diction use of words 53. 41. The policeman asked my friend and I to accompany him to the station. Joan spent three hrs. The speaker’s comments seemed to infer that he had not researched his topic. 45. 29. Syntax You may have to rewrite some of these sentences. Greater freedom of choice should be given to we Australians. we will probably be able to holiday on the moon. 36. 39. 55. The new cadet is unsuitable because he is dishonest.000 people were killed in the earthquake in Kobe. 37. 47. 5. the beauty of the portrait is appreciated by viewing it from a distance. but they are not my favourite sports. Of the two of them. On the football field. The Labor party favours three-cornered contests. . the imminent actor and director. 38. Statistics are a subject that many students find difficult. 28. I like to jog and swim. 42. the beauty of their movements intrigued me. senator Billingsworth will attend the international peace talks in London next week. The PM is expected to visit Coffs campus this year. 51. The boys enjoyed hunting. 54. Painted in 1898. 46. 44. 32. trying to answer this quiz. Neither the distributor nor the spark plugs is faulty. 27. Galloway is the best student. The format of ‘The Courier-Mail’ has changed since they introduced computerised typesetting. Maybe scientists will discover a cure for the common cold by the year 2000 AD 31. The committee was unanimous. shooting. The accountant as well as his secretary come to work by taxi. 52. By the year two thousand. Ben Hall often disguised himself as a policeman. 40. 33. 48.LAW00051 Topic 2 – Writing style: Using plain language 59 Mechanics This section refers to the mechanics of writing. which is why drive-in theatres are going out of business. 49. The first Legal Research and Communication workshop will be held in Sydney at exactly 9 ante meridian next Monday. To allude his pursuers. This jam and cheese sandwich tastes deliciously.

The theory is outdated and no longer relevant. 62. Albert Einstein refused on every occasion to tell other people what his opinions were on the subject of politics. 58. 56. be readily comprehensible to the audience to whom the document is primarily addressed. . minute little details are important. In essence. audience. be expressed in short sentences and short paragraphs. In effective communication. For instance. I believe I am right when I say I think you are wrong. nor uncertain. topic. Use a dictionary if you do not know how to pronounce sobriquet in the right way. which she can then modify to include the details of a particular client. 64. and use well-constructed sentences. organisation. be efficiently and logically organised. a solicitor may have a precedent of a will. 60. but must be used cautiously to ensure that they achieve your purpose. All students should assemble together on the lawn. the form of expression is what identifies one writing style from another.1 The Macquarie Dictionary defines style as ‘the features of a literary composition belonging to the form of expression other than the content’. They assist by giving guidance. 59.3 (a) Plain language can be used anywhere. 63. be neither ambiguous. be comprehensive. (b) Precedents are ‘pro forma’ versions of documents commonly drafted by a legal practitioner that can be modified to meet the needs of a particular client. (b) Dr Eagleson groups the features of plain language writing under the following headings: • • • • purpose. f Feedback 2. 61. use plain straightforward language. Feedback 2. A major theme of modern dramatists of today is the futility of human existence in this world. and that they do so accurately and comprehensively. 57. Its purpose is to improve the readability of a document.60 LAW00051 – Legal Research and Writing Redundancies/deadwood/verbose writing Rewrite these sentences in simple language. Using plain language is particularly important for writing to an audience who is not familiar with the subject you are writing about. nor vague. I like to relax with my parents and siblings. but we could not comment on the desirability and feasibility of Oscar’s proposals without first obtaining further additional information. They should not be following indiscriminately. We were asked to comment on the desirability and feasibility of Oscar’s proposals. avoid archaic terms.2 (a) They suggest that such writing should: • • • • • • • • • accurately embody the client’s instructions. including any new clauses that are not ordinarily included in a will. f f Feedback 2.

LAW00051 Topic 2 – Writing style: Using plain language 61 • • • language. using headings to signal the reader to the location of information within the document. sentences in a document. Thus. f Feedback 2. by ensuring that it is organised and presented effectively. Something that resembles the following is sufficient. and so on.5 The plain language version has used a number of design features to improve readability including: • • • • the use of headings in bold boxes to draw the reader’s attention to important parts of the document. and using dots. design. boxing sections to distinguish the various parts of the document. (b) Organising your document before you write. then moving on to secondary or less important ideas. (d) The report is written in chronological order. the look and design of the document can also increase its readability. (b) I don’t like my friends criticising me.6 There are many ways to rewrite these sentences. Usually this means presenting the main idea or information first. (c) The Deerhunter is a violent film. notes in the margin to explain the purpose of each section. and to signal the reader of the important point in the text under the heading. with the prime purpose of ensuring it is understandable to the reader. dashes and numbered points. . to ensure that we have prepared a document in the most effective way possible. ensures that the ideas and information are presented in a logical order. to present sets of ideas in a clear and comprehensible fashion. is an important way to develop the document’s readability. f Feedback 2. but also considers the organisation of the words in the sentence. and the instruction ‘Bring this with you to court’ to emphasise the importance of the document. and the layout of a document. revising and editing are important steps in our writing process. (a) The driver was drunk when stopped by the police. Therefore. (c) The material can be organised within your document by: • • using paragraphs effectively – offer the reader manageable bits of information in each paragraph. (d) Very few of us have the skill to write the ‘perfect piece of writing’ at our first attempt. (c) Plain language not only looks at the way words are used. • f Feedback 2. and revision.4 (a) Organising your document before you write. but also tries to improve the readability of a document. The new plain language version of the Summons with Information illustrates that plain language deals not only with the words used.

You may use a technical term. means: limited definition includes: expansive definition • • • • • • Don’t define a word that is used only once. Be consistent in word usage and labelling. they should be used in the same way as other technical legal words. using a definition section should not interfere with the reader’s ability to read the document easily. the reader should not have to learn a ‘code’ off by heart to be able to read the document. If they also have an ordinary meaning. it is preferable to place them at the end of the document. (b) If you did not know the meaning of any of these words or phrases. You can also read the Appendix in McDonald and Clark-Dickson. In any event. label words that are known to and make sense to the reader when they are used in that document. to give specific meaning to a particular word. the definition may be placed in the margin. You can check your answers by comparing the meaning of the word you have chosen.8 (a) Out of habit. Alternatively. If you must use them. to specify one of several common meanings. Feedback 2. (b) Asprey suggests the following guidelines when using definitions: (c) If you have a large list of definitions. Keep in mind the difference between ‘means’ and ‘includes’ when used in a definition. even if your reader isn’t familiar with the word. Mark defined words the first time they appear so that the reader knows they have a special meaning in your document. to alert the reader that they have a special meaning. that is. you should have marked words that have been defined. Don’t define ordinary words unless they have a special meaning in your document which is different to their ordinary meaning. Use meaningful labels. You can use the words ‘means’ or ‘includes’ to start your definitions. with that of the legal term in your legal dictionary. and to ‘stretch’ the meaning of a word.9 (a) Using definitions can add flexibility to your written documents. but you should also be careful when using legal words or terms of art. As a result.7 (a) Technical terms can be useful – it may be difficult to find an alternative to them. This allows the reader to read the important information first. provided you explain its meaning. to allow flexibility. It is suggested that you italicise the word the first time it appears. lawyers often use archaic words that are neither technical terms nor terms of art. you should have consulted a legal dictionary. and then turn to the detail as they need to. Feedback 2. and use a footnote to give the definition. they should not be used. However. Asprey suggests the following as appropriate places where definitions may be useful: • • • • • • to provide a label for a concept to avoid repetition.62 LAW00051 – Legal Research and Writing f f f Feedback 2. . and very often people are not familiar with their meaning as they are rarely used in everyday speech. (b) Latin phrases are often sprinkled through legal writing. Don’t use too many definitions – perhaps you should use clearer language instead of relying on a multitude of definitions. you must clearly explain the legal meaning. However. Legal terms of art and legal buzzwords can also be useful. That is. you must also provide the reader with an explanation of their meaning. They are often imprecise. particularly in judgments.

If you need to qualify that idea within the same sentence. arguments accommodation independent 3. (iii) The approved dental service will regularly visit the primary school children at your school to check their teeth. Dawe and Wright. affected privilege its 10. (b) It is better to write sentences that are short and that contain only one idea. Phillip Marks in Port Macquarie and Colin Peters in Taree. the evidence of the neighbour. and spelling! (d) design: is your design the most effective one? Feedback to self-test Spelling 1. (iv) The tenant will be responsible for water usage charges. grammar. The pollsters have assured us that the coalition will win the election in March. Colon used to signal list follows. and the report by the builder. and then add the qualification second. f f Feedback 2. aquarium 14. (c) language: check sentence structure. 9. Keneally. 6. Peacock and Chipp – were not surprised that so many people voted informally. 8. The party leaders – Hawke.LAW00051 Topic 2 – Writing style: Using plain language 63 f Feedback 2.11 You should check: (a) content: make sure that you have included all necessary information. is. 15. 18. and/or a main message that is modified or qualified within the sentence. Need to complete dash to show explanation from rest of sentence. Four important Australian writers are White. Extra assistance is needed by the following branch managers: Ronald McDonald in Coffs Harbour. Of the two applicants. separate Punctuation 11. 16. 5. (c) (i) His claim was supported by the photograph of damage to the fence. and so on. surface-to-air 12.10 (a) Dr Eagleson makes the point that long sentences are difficult to read because the reader has to work hard to absorb all of the information in the sentence. It has been reported that Alexander Downer has resigned. use of words. (ii) The bank manager agreed to consider the development proposed by the major stakeholder in the project. 17. already 13. you should make the main point first. . (b) organisation: have you presented your information effectively? Main ideas first. Long sentences tend to contain a lot of information. but can we believe them? Question mark required indicating rhetorical question. Colon not used after are. 4. Full stop required. 19. 7. the one who studied in America recently was not suitably qualified. as well as the usual utilities. feasibility recommendations principal 2.: is all that is required. punctuation. Introductory phrase requires comma. Note: There is no such punctuation mark as:.

23. Or you could have two separate sentences. Don’t use abbreviations in formal writing. 31. There’s no need to lose sleep over these rules. 35. Did Lewis Carroll write the poem ‘Alice at the Palace’? The question mark needs to go outside the name of the poem. 54 BC. Smith switched on the light. the men will do the dishes. 30. The Labor Party favours three-cornered contests. Five thousand people were killed in the earthquake in Kobe. 32. Grammar 34. My eldest daughter. Don’t start a sentence with a figure. The following examples are listed starting with my preferred option. Anyway. 28. 21. I prefer the one written by Campbell. Join the sentences by inserting a comma and adding so or and: Jones saw a movement in the shadows. Other way round for BC – for example. Were is what we used to call ‘part of the verb to be’.64 LAW00051 – Legal Research and Writing 20. When the women have finished cooking. A condition contrary to fact. If you would like to learn more. so Smith switched on the light. Remember it by the words of that famous song – If I were a rich man … … … He wasn’t a rich man. Capital P for Party – that is the correct spelling for the Australian Labor Party. the subject and compliment must agree. a dream. There were only one Ford and two Holdens waiting at the traffic lights. Use figures for years. She acted as if I were not here. Here the subject (daughter) and verb (is) are separated by a clause giving you more information about the subject. Don’t use abbreviations when a noun is required. Use semicolon Jones saw a movement in the shadows. The format of The Courier-Mail has changed since they introduced computerised typesetting. Mechanics 25. Don’t worry too much about this one. Introductory clause separated from principal clause. films. There are a few ways to fix this sentence. According to a report in Saturday’s edition of The Australian. By the year 2000. Or ‑ Jones saw a movement in the shadows. we will probably be able to holiday on the moon. Joan spent three hours trying to answer this quiz. you’d write AD 2000 if you were going to use it. 33. The first Legal Research and Communication workshop will be held in Sydney at exactly 9 am next Monday. or a wish all require that the verb be expressed in the subjunctive mood. is now working in Sydney. Capital S for senator. Same – but introductory phrase. major works of art are italicised. 24. buy yourself a second-hand book that covers this type of material. The Prime Minister is expected to visit Coffs campus this year. 26. The am can be written AM if you so choose. and Smith switched on the light. books. who finished her degree last year. . but he wished he were. Under the rules pertaining to such verbs. Of the two books. Maybe scientists will discover a cure for the common cold by the year 2000. You don’t need the AD. 27. 22. Senator Billingsworth will attend the international peace talks in London next week. Names of newspapers. 29. Commas required.

you may say John is the smartest in his class. 44. and bad tempered. therefore find required. the -er ending lets you know two things or people are being compared. The policeman asked my friend and me to accompany him to the station. 38. Of the two of them. This jam and cheese sandwich tastes delicious. When one noun is singular and the other is plural . but they are not my favourite sports. I is nominative case. therefore singular pronoun it required. He is one of those students who find study quite effortless. Neither the distributor nor the spark plugs are faulty. When comparing John with Bill. Use I when it comes before the verb. When singular nouns are joined by neither/nor. 45. the year my uncle sat he was asked to identify the comparisons of ill. Objective case required. iller. They can only stand for nouns and other pronouns.’) Its sequence is good. except when you’re using part of the verb to be – see 35. Statistics is a subject that many students find difficult. … . (Most languages set out rules then tell you. Briefly. In those days they used to test candidates’ knowledge of these rules. A long time ago in Queensland they used to have the Scholarship examination at the end of primary education. dead. 37. 39. Those who managed the question wrote ill. Adverbs modify verbs and other adverbs. Statistics is the name of a subject. There are a couple of ways to fix this sentence. you could say John is smart. 43. a singular verb is required. me after the verb.LAW00051 Topic 2 – Writing style: Using plain language 65 36. the -est ending indicates three or more. therefore singular verb required. Better comes from what is termed an irregular group. illest. The accountant as well as his secretary comes to work by taxi. Either remove the we entirely or change it to us. then Grade 7. Anyway. shooting. Same as 47. 40. Galloway is the better student. For example. therefore a singular verb required. On the football field. cannot be used to ‘stand for’ infinitives. Parallel writing required.for example. There are three levels of comparison: level one doesn’t really compare. If you want to compare John with his peers. This sentence is clumsy because to jog and to swim are infinitives. such as they. sick. Chris and Rex are an unbeatable combination. The boys enjoyed hunting. it decided to appoint Peter Petherbridge immediately. The committee was unanimous. ‘However. Who stands for students which is plural and requires a plural verb. 46. Accountant is the subject of this sentence. best. 41. Syntax 47. Pronouns. The new cadet is unsuitable because he is dishonest. and the third level compares more than two. you may say John is smarter than Bill. cheeky. Singular nouns joined by and require a plural verb. there are exceptions or irregularities . 48. and fishing in the local streams. it makes a statement about someone or something. I like jogging and swimming. . better. The second level compares two things. 49. Clements learned computer programming more quickly than me. Committee is a collective noun and singular. 42. Greater freedom of choice should be given to (us) Australians. My Uncle Jim wrote ill.as in this sentence – the verb agrees with the closer noun.

Students should assemble on the lawn. 61. 62. Woody Allen. If you think you have major problems in these areas. A major theme of modern dramatists is the futility of human existence. Redundancies/deadwood/verbose writing There are many ways to eliminate the rubbish in these sentences. w Online activity Return to the Academic Skills Development Unit homepage: <http://www. the sentence suffered from what is called ‘a dangling modifier’ – that is. To elude his pursuers. A speaker implies. We were asked to comment on the desirability and feasibility of Oscar’s proposals.66 LAW00051 – Legal Research and Writing 50. 52. Ben Hall often disguised himself as a policeman. While I was watching the gymnasts. 63. the beauty of their movements intrigued me. Remember the purpose of this test. Previously. 59. Use a dictionary if you do no know how to pronounce sobriquet. There are a couple of ways you could fix this one. buy a new or second-hand book that covers these areas of written communication. I believe I am right. Finally. Here’s an example: Drive-in theatres are going out of business because more and more Australians own video recorders. a modifier which fails to show who or what it is related to. 54.au/ academicskills/> and browse the list for academic skills information guides that may help with any weaknesses identified in the self-test. 56. 55. Also note down the dates of the free workshops and visit the Spelling and Grammar Tips Wiki. 64. . details are important.) You could also visit one of the many excellent online websites specifically designed to assist with the fundamentals of written communication. The speaker’s comments seemed to imply that he had not researched his topic. you should utilise the support offered by the Academic Skills Development Unit at Southern Cross University.scu. Diction 53. 57. is working on a new film with Ingmar Bergman. In effective communication. the eminent actor and director. a listener infers. but we could not without obtaining additional information. (Some business communication texts have chapters under the quiz headings and will provide you with self-paced and experiential instruction. Another dangling modifier. The theory is outdated. Here are some examples.edu. Get rid of the clumsy which is why. 51. Albert Einstein refused to discuss politics. 60. The portrait which was painted in 1898 is appreciated by viewing it from a distance. 58. I like to relax with my family. Don’t get your knickers in a knot over any of these and don’t bother ringing us to quibble about the difference between your response and ours.

1990) Meehan. R. 2010) Butt. 2007) . 2001) Campbell. 3rd ed. G. Plain Language for Lawyers (The Federation Press. P and Castle. R.LAW00051 Topic 2 – Writing style: Using plain language 67 Further reading You are not required to purchase any of the following textbooks. Modern Legal Drafting (Cambridge University Press. Students’ Guide to Legal Writing. The list of reference materials is provided for your convenience. Asprey. M. Writing in Plain English (AGPS. 4th ed. M and Tulloch. E et al. 2010) Eagleson. Law Exams and Self Assessment (Federation Press. 2nd ed. You may wish to borrow one or more of the textbooks from the SCU library to help you better understand the content of Topic 2. Grammar for Lawyers (LexisNexis Butterworths.

68 LAW00051 – Legal Research and Writing .

Objectives At the completion of this topic you should be able to: • • • • • • paraphrase and quote from other people’s ideas and writing without plagiarising. and write a legal letter. Then we will look at two of the most common legal writing tasks that you may be required to undertake in legal practice: writing filenotes and letters. Given the limitations of space. we will look at other writing tasks. and emphasise the types that you will most commonly use in your studies. we will focus on a few particular types of legal writing. write a legal essay. and evidence – the ability to support your analysis and conclusions with appropriate evidence. use footnotes accurately and correctly to reference the materials referred to in your writing. substance – the ability to critically analyse the question and to write an effective argument in response. All of the issues we discussed earlier. In later topics.Topic 3 Legal writing What we’ll do in this topic Now you are familiar with the essentials of good writing and how to use the plain language principles. Writing for law studies In this section we will concentrate on writing essays for law studies. First we will focus on academic types of legal writing. apply equally to your assignment writing. We will look at writing legal essays. write a filenote. prepare an abstract and a bibliography. and bibliographies – all with attention given to correct legal referencing and citation. such as writing in exams and preparing casenotes (summaries of cases). and will discuss in your next topic. In this topic we will look at how to use these good writing skills to write for legal purposes. including the conventions used to ensure that we do not plagiarise other people’s work. Effective essay writing involves: • • • structure – format or organisation which aids the development of the argument. the use and purpose of abstracts and précis. 69 .

3. r Textbook N&C [2. Ibid [4. 2. You may be barred from further study. you need to have strategies to use and refer to other people’s work in your own work. It involves stealing another person’s ideas or words. You may incur severe penalties during your studies. because we want to start with what we believe is a fundamental aspect of quality academic writing – using information and other people’s ideas (as evidence) in your work. 3. 2005) [4. given that referencing gives authority to your work. how can you do it? You have two choices. Take note especially of the strategies in paragraph [4. 1 2 A Stuhmcke. Reference? Or plagiarise? Legal essays demand that you as a writer will read and analyse the works of others in order to gather evidence that will help you build and substantiate your argument.3.1 You should read the following excerpt from Stuhmcke very carefully so that you are sure that you understand what plagiarism is and what it is not.3]. the writers of your texts or any other written source. .4]) the simplest way to avoid plagiarism is to ensure that other peoples’ ideas or words are acknowledged correctly. plagiarism occurs when ‘the ideas or words of another person are taken and used without acknowledging their true source’. The next reading provides some guidelines for when to reference the material you use.2 ‘Another person’ includes your lecturers. or plagiarise.3] As Stuhmcke says. Legal Referencing (3rd ed. Do not plagiarise! As Stuhmcke says (at [4. You may find that you cannot be admitted to the legal profession. This has an extra benefit too. to avoid plagiarism. oral sources. but you should know that: Plagiarism is theft.1].1 A Stuhmcke. You may: • • reference the words and ideas of others (whether paraphrased or quoted).4]. 2005) [4. Knowing when to reference can be confusing – initially. and your friends and co-students! It is not acceptable. r Reading 3. For that reason.65] Plagiarism The choice is yours.70 LAW00051 – Legal Research and Writing We will get back to structure and substance in a moment. So. The essential point we want to emphasise is that you must not plagiarise another person’s work. Legal Referencing (3rd ed. It is academic crime.3. Three things could happen if you are found plagiarising anyone else’s work: 1.

which provides for the resolution of disputes. How to Study Business Law (3rd ed. as well as rural and remote communities. Effectively. It is a device often used to avoid the use of lengthy quotes in your own writing. w r a Online reading Visit the Academic Skills Development Unit website.2 A Stuhmcke. Indigenous common law is a sophisticated set of laws and beliefs. and which protects and maintains the belief systems and culture of Indigenous Australian society. 2005) [4. Paraphrasing is a skill and it is a very good habit to adopt as it ensures that you have read through the information and understood it sufficiently to explain the information in your own words. much remains as a living and dynamic feature of contemporary Indigenous Australian society – in urban areas. Paraphrasing Paraphrasing is using your own words to rewrite information that you have gathered from other sources.1]. .LAW00051 Topic 3 – Legal writing 71 r r Reading 3.edu. determines family and other relationships. Paraphrase this paragraph. Paraphrasing is not plagiarism provided: you give reference to the author (or other source of the information) to acknowledge that the ideas you have paraphrased are not your own.3 G Crosling and H Murphy. We will look at citations and referencing in more detail below. Click on Academic Skills Information Guides and locate and read the guide: Paraphrasing and Quoting in the ‘Referencing’ folder. The recognition of Indigenous common law is fundamental to the exercise and enjoyment of human rights by Indigenous Australian peoples. While some Indigenous common law has been destroyed by the process of colonisation within Australia. AGLC [1. 2000) 94–98 Activity 3.php/17/> Reading 3. Human Rights in Australian Law (1998) 93. Legal Referencing (3rd ed.scu. As you can see from the last reading from the AGLC and Style Guide you are expected to use footnotes.1 The following is an extract from J Nielsen and G Martin. you need to reference other peoples’ ideas or words correctly and every time – whether you are paraphrasing or using direct quotations from their work.1] What format should your references take? Style Guide Pages 9–13. <http://www.au/learningassistance/index. ‘Indigenous Australian Peoples and Human Rights’ in D Kinley (ed). Paraphrasing allows you to refer to another author’s ideas in your writing by putting their ideas in your own words.

(a) Write your own sentence quoting a full sentence from this extract. The footnote text would appear at the bottom of the page. We will come back to the use of footnotes in more detail below. then the quote must contain the exact copy of what the original writer stated. both your paraphrase and your quote of the authors’ ideas in the extract should have been cited by means of a footnote. it is acceptable to use quotations in your writing. In your answers to Activity 3. The Assignment Navigator is a tool designed to assist . So as a general rule.1 and 3. Browse the various tabs and then click on the Build your skills tab. a citation (including pinpoint reference). you wish to refer to the author’s idea (that is. is indicated by the ‘*’ in the feedback at the end of the topic.5]. Finally. (b) Write a sentence using a truncated (ie shortened) quote from this extract. in relation to direct quotes. or because you just can’t say it better. This is because you may wish to critically analyse the way they have expressed themselves. We will look at the detail and rules for citing quotations below under the heading Citations and Referencing. to quote directly from the author). just take note that the place where the footnote reference. and you provide a reference to the author (or source of the information) to acknowledge that the words you have quoted are not your own. use an indirect quote). You must incorporate quotations into your analysis so that it is clear why the quote is being used. then you should paraphrase the author’s ideas in your own words – as was described above. However.1.2 Return to the extract reproduced in Activity 3.2: • • The words around your quotations are very important. Human Rights in Australian Law (1998) 93. Using quotations is not plagiarism provided: • • you put quotation marks around the words you copy or indent if it is a long quote. Either way. your assignments should consist of no more than 10% quotations. take note especially of the two points made at page 42 of Reading 3. must be given to acknowledge the source of the quote.2 above. should appear. ‘Indigenous Australian Peoples and Human Rights’ in D Kinley (ed).1 above. For all of your academic writing you will be assessed on your ability to articulate your position and develop your arguments in your own words. instead. for the moment. If. If you wish to use the words of the original author (that is. a Activity 3. To do this. A pinpoint reference refers to the specific page and/or paragraph number. See if you can locate that site from your MySCU homepage (the site was expected to go live in January 2011). usually a number.72 LAW00051 – Legal Research and Writing Quotations Sometimes it is useful to use the exact words used by someone else. J Nielsen and G Martin. Assignments generally w Online activity At the time this study guide was being updated a new website was being developed called First Year At SCU. and would look like this: 1. See AGLC [1.

If you are unsure of what the question means. and leave a clear margin for comments. For instance. Always include a bibliography. Make sure that you note your references in footnotes. Part of the preparation is to examine the question carefully. Be sure to cite all the authorities and secondary materials correctly. If you are writing an essay. whether they involve writing an essay or solving a problem and writing up your solution: • Plan the timing of your assignment. whether it is an essay or problem solving.LAW00051 Topic 3 – Legal writing 73 you with your assessment. direct quote should make up no more than 10% of your word count. Do not think that you will only write it once. in accordance with the School Style Guide and the AGLC. Make sure you understand the instructional verbs. not the first person. Write in your own words. Remember. Be prepared to do at least one rough draft and at least one revision. Browse the various modules titles. Use ‘do not’ and ‘will not’. if you are asked to give your own opinion. this is not a hard and fast rule. This is most important when writing essays. Always spell check your work. Collect the materials you require. Read the Rules Concerning all Assignments in the UIG. the original could be lost. Leaving it to the last moment may mean that all the texts you were going to use are on loan from your library. You might like to bookmark this page and return to the other modules when you are writing your assignments and preparing for exams. contact the unit assessor for clarification. Bearing in mind the word limit. If you are solving a problem. • • • • • • • • • • • • • • . estimate roughly how long it will take and what other work needs to be done in that time. so that you do not forget them later when you are actually writing. have copies of the articles and cases to which you will refer. The ideas may be points you wish to raise in your essay or an aspect of the problem you are to solve. That is. Note the date and time the assignment is due. Jot down ideas as they occur to you. Be original. Take care with referencing. if you are unsure of their meaning. If you do not understand the instructions. There are some general guidelines when preparing assignments. Use your dictionary and thesaurus. Plan to rewrite your assignment. Use the formal style – avoid ‘don’t’ and ‘won’t’. check them in your legal dictionary. be sure that you have the legislation and/or cases to which you will need to refer. Start by watching the Getting Started module. Avoid contractions. Use the automatic footnoting function in your word processing software and ensure that the footnote number appears after the punctuation. do some background reading on the topic. Does it involve any definition of the words on the question itself? Use technical terms correctly. Be sure your work is legible. whether in handwriting or typed. Do not plagiarise. Use the third person. Use one side of the paper only. Keep a copy (including backing up your work on your computer). you could use ‘I’. but also applies when you are problem solving. But take care and use an Australian English version. do not use ‘I’ and ‘we’. Carefully interpret the assignment question. Please read the University Handbook and familiarise yourself with the penalties. Plagiarism is a very serious offence in universities. However. Be sure to borrow or reserve the texts that you will require.

We will look at Legal Problem Solving in Topic 4. and presentation. checking and editing. critique. whether as assignments or during examinations. This translates for our purposes to writing essays.74 LAW00051 – Legal Research and Writing • • Structure your writing so that there is a clear and logical sequence. Try to start a new subtopic or paragraph on a new page. Reading 3. These are the words that describe how you should write your essay and the writing abilities that will be assessed. Essay Method and English Expression (2nd ed. Interpreting the question usually involves two steps. rather than at the bottom of a page. Interpret the question • . 2000) 103–121.4 to ensure that you understand the difference between the various instructional verbs.4 D Bate and P Sharpe. revising and rewriting. reorganising. First. In law studies. discuss and explain. Re-read pages 17–18 of Reading 3. Keep the following pointers in mind whenever you are required to write an essay. The verbs most commonly used in essay instructions are: analyse. 2. final outline and main draft. Read your completed assignment out loud or have someone else read it to you to ensure that it sounds fluent. 1983) 17–31. r r r Reading 3. Before you can start researching or writing your essay you must understand what you are being asked to do.5 S Hanson. The first is when you are asked to write about a subject or topic generally and perhaps to critically analyse that subject. How to Study Business Law (3rd ed. Read pages 113–121 (you will be asked to read the other pages later). you need to understand the instructional or directive verbs. Legal Method (1999) 196–197 Reading 3. 1. Include relevant headings to guide the reader. there tends to be two types of legal writing. and solving problems.6 G Crosling and H Murphy. writing a rough draft and outline. Writing legal essays The structure of an essay The following readings provide fairly comprehensive coverage of this topic. The second type is the analysis of legal problems. Now we will look at writing essays. Plan your essay Organise your time to cover the following: • • • • • • • research.

For now. rather than in the middle of an argument. Although this period can be avoided by applying for a petty patent. Moreover. and deal with lesser arguments in order of importance. indicate the overall structure of the essay and give your view (ie state your position).6 which provides an explanation and examples of how to break down the essay question in order to analyse your topic. Start with a rough draft. It is my view that the present Constitution does not adequately protect the human rights of all Australians. If you have a block. My first concern is that it does not adequately protect the human rights of Australians. you need to analyse the question to discover the key concepts and the issues raised.3 Read the extract below and underline the connecting or linking words. Join sentences and paragraphs by linking or connecting words. in conjunction with various other . Present your strongest argument first. 3. Be sure to support your views by referring to appropriate material. Write to the reader. 4. The use of word processing is helpful as you can easily reorganise what you have written. Structure your essay Your essay should have an introduction. Moreover. But only if they are relevant and add to the readability of the essay. use headings and a numbering system if that is appropriate or helpful to you. provide background information. Each paragraph should have an introductory or topic sentence. Develop the structure for your essay (by filling out the detail of the ‘body’ of your essay) and put it into the outline. Now you are ready to write the main body of your essay. others need to break it into small parts. it does not protect the rights of all Australians. such a period is a long time in the rapidly changing world of technology. other software developers may have produced the same product. Start writing Start writing the interesting bits first.LAW00051 Topic 3 – Legal writing 75 • Secondly. a Activity 3. Some people like to write in one whole session so that they do not lose the thread. A second disadvantage is that of cost. not the view that you believe the lecturer holds. express them. Divide the topic you are discussing into subtopics. If you have your own views. Use headings in your essay as a guide for the reader. However. refer back to Reading 3. Here is an example: One of the major disadvantages of the patents system is the time it takes to have an application approved. Try to take a break at the end of a particular aspect or heading. Keep similar ideas together and different topics apart. Write your outline. write anything down. The introduction should introduce the topic. You can always rewrite it – and you should at least revise it before you submit it. regardless of how inadequate you think it is. while the application is being processed. We will come back to this in a moment when we look at the substance of an essay. supporting sentence and a conclusion for the paragraph. Break the main body of the essay into paragraphs. body and conclusion. the present Constitution.

and an excellent essay that is extremely late will not impress the reader/marker. but do not fill up with verbosity or flowery phrases to reach this limit. it is my view that it is time that a constitutionally entrenched Bill of Rights is added to our Constitution. Make sure your sentences are grammatically correct and structurally effective. the common law. all combine to provide protection for human rights in Australia. and none will find the spelling errors in a sentence like ‘the too farmers preyed for rein’. and possibly add a final comment. but not if it means that you lose the meaning of what you wish to say. Although there are many persuasive arguments against this. Go back and read your question again during preparation. case law. which are numbered consecutively. 5. the question must be raised whether the present Constitution will adequately protect all Australians in our rapidly changing world. Discard any material that is not relevant. You could go on forever. a Activity Later in the session. and change any vague words and sentences. Do not rely solely on a spell checker if you are using a word processor. Restate your viewpoint. textbooks and so on. Essays usually have a word limit. Stick to your timetable. Try to avoid repetition. and check the spelling. Think instead what else you could have said. You will probably need to rewrite at least once.76 LAW00051 – Legal Research and Writing mechanisms. Provide the reference when you cite someone else’s words and ideas. Proofread your essay. • • • • • Do you agree with her or his comments? Keeping in mind the information in the articles that you have just read. Edit and revise Once you have finished your main draft. Support your arguments with authorities. and Australian and international mechanisms for the protection of human rights. and make sure you have not become sidetracked. If you have recorded all your references while preparing the essay. The lecturer will have chosen the word limit that he/she believes is appropriate. Try not to use too many direct quotes. Refer to our later discussion to be sure your bibliography and footnotes are correct. such as implied constitutional limitations. journal articles. but do not keep on doing this. Avoid wordiness if it conveys nothing. look at an essay that you have written during your studies this session. this will not be difficult. Use footnotes. legislation. Remember your bibliography. how could you improve this essay? Did you plan it before you wrote? Did you revise and edit it before you handed it in? Did you include an introduction and a conclusion? . paraphrase the material when possible. check the language. Do not introduce new information in the conclusion. The conclusion of the essay should be a summary of what you have said. Further. Read the feedback given to you by your lecturer. rough draft and final re-writing. Many have American spellings. although I reach the conclusion above. When referring to an author’s views.

LAW00051 Topic 3 – Legal writing 77 • • Did you back up your arguments and conclusions by giving the reference of appropriate materials? Did you read as widely as possible on the topic? (In other words. no longer assuming that knowledge is ‘right’ and that there is only one way to think about a subject. The following two readings and the online tutorial stress: • • • the importance of organisation. if you had access to library or other resources.7 J Pittman. How to Study Business Law (3rd ed. did you read beyond your prescribed materials?) The substance of an essay Effective structuring of the essay is only one half of the equation. Construction of the argument is a critical writing skill that involves using persuasive and appropriate language to: • • • provide evidence. Online activity If you were able to locate the Assignment Navigator on the First Year at SCU website in the last online activity. return to the Assignment Navigator using your bookmark and watch the module Understanding the Task. The second (and equally important part) is to know how to use your knowledge of the subject to effectively and critically analyse the question and to construct an argument in response.6 – G Crosling and H Murphy. Read pages 103–113. contextualise. Reading Go back to Reading 3.) Once you begin to read and think in this way. . To ‘critique’ means to appraise knowledge from different perspectives. r r w Reading 3. and the necessity to critique the information that will become integral to the argument. you can then examine the implications of the knowledge not just the description of the knowledge itself. It was compiled as the result of analysing many essays written by law students and provides some very helpful information for writing law essays. a former staff member in the Learning Assistance Unit (now Academic Skills Development Unit) at Southern Cross University. (It goes back to the notion of critical thinking that we discussed in our previous topic. Essay Writing in Law: What do the Good Writers Do? (2000) The next reading is an extract from a text that has been written specifically for business law students. framework and/or issues. the necessity to analyse the question. 2000) 103–121. You will begin to question the knowledge in terms of perspective. but admitting diverse views. and add cohesion. The next reading was provided by Jenny Pittman.

Solution: write an introduction. Click on the icon Topic Analysis and complete the tutorial. r Reading 3. but generally your opinions must be supported by the work of an author or other source. Solution: write a conclusion. think carefully about your own experience and knowledge on the area raised • .78 LAW00051 – Legal Research and Writing OR From the library homepage < <http://www.com/scuweb>-ezy/> Now read the following extract from Hanson about arguments – how to identify.web-ezy. answer questions which ask why and how (analytical) about your topic. Unfortunately. where and when (descriptive). evaluate. Opinions given without any support from other materials. as well as those that ask what. interpret and construct them. What one gets back is proportional to the quality of what has gone in. generally. Solution: Read as widely on the topic as possible. <http://www.scu. examine and explain.au/library/> select Online tutorials. Legal Method (1999) 179 and 186–194 You should note that Hanson says. that while the discussion in this extract concerns constructing argument from facts. Your opinions are not irrelevant. there is no substitute for hard work! a Discussion question Reasoning can be either inductive or deductive and a writer needs to decide upon the most appropriate form to use. keep a careful record of the material you read so that you can include appropriate citations in your essay.edu. Essays require you to analyse the topic in as much detail as the word limit permits. Moreover she says: Argument construction is not difficult if there has been meticulous preparation of information. Essays that display these features. understanding of he law. The argument will be basic or elegant depending upon the development of skills. don’t accept the opinions of the authors to whom you refer at face value. Use the guidance provided in each of the above readings to avoid these features in your work: • • • No introduction. nevertheless. thought and reflection that has gone into the argument construction. Solution: Read as widely on the topic as possible. This is unless the opinion relates to a matter about which you can claim some experience or knowledge. the level of preparation. and consider all of the issues which must be discussed. No conclusion. the ‘structures remain the same’ whether you are dealing with fact or theory. What is the difference? What form of logic is being used when you draw an analogy? The following is a list of common ‘complaints’ we make about student essays. think carefully about the topic. don’t merely describe – you should also criticise. do not attract high marks.8 S Hanson. to analyse the topic. You can agree or disagree – but should indicate why. the discussion of the topic is very cursory and tends merely to describe the main issues and/or to accept the statements made by other authors at face value. No ‘depth’ – in other words.

keep in mind that you are supported by our library’s document supply service and off campus collection. you will need to prepare an abstract. provide citations in footnotes or endnotes. Even so. explain your own knowledge and experience in the text of the essay (briefly) or provide a citation to it. television programs and videos. this amounts to plagiarism. However. have someone else proof read your work. While little marks are allocated to presentation. read the academic skills information guides from Southern Cross University Academic Skills Development Unit. visit the Academic Skills Development Unit website to gain assistance in your essay writing skills. . It will be unusual for you to be asked to prepare an abstract for your assignment work. keep a careful record of the material you read. Some of our students think it is satisfactory to read only the Study Guide in their units. revise and edit before you submit. These features detract markedly from an otherwise good piece of work. This is known as the abstract or the precis. However. Poor use of grammar and spelling. Solution: Read as widely on the topic as possible. we are aware that some of you have limited access to library resources and so may not be able to access other materials easily. It may also be described as a synopsis. keep a careful record of the material you read so that you can include appropriate citations in your essay. it is a courtesy to your reader to present the document in a readable form. sentences poorly constructed and work difficult to read. IT IS NOT! You must read the prescribed text and/or readings that support the Study Guide carefully. use double spacing. Poor presentation. reading newspapers. proof read your work. That is. Solution: use an Australian spellchecker and a dictionary as you write. Essays that are poorly presented are difficult to read. You must always give the citation of any sources from which you take ideas. the ideas jump around and do not fit together to describe. read the academic skills information guides from Southern Cross University Academic Skills Development Unit. attend one of the Academic Skills Development Unit 50 minute workshops. Structured poorly or no structure at all. The ideas in the essay do not flow ‘logically’. and other materials located. It is also good practice to read outside of those materials. if you do an independent legal research project or honours in your studies. that a summary of the article is presented at the very beginning. Solution: Read as widely on the topic as possible. No references provided. If you do not. design your layout so that your document looks good and is easier to read. attend one of the Academic Skills Development Unit 50 minute workshops. Abstracts and précis You may notice as you read some journal articles. think of other resources which may be relevant – interviews. revise and edit before you submit. use a font size that can be read easily. explain and support the argument made in your essay. include a bibliography of the resources used to prepare your essay. Solution: Use headings. radio programs. It is preferable to cite from these latter sources rather than your Study Guide. Solution: plan your essay before you write.LAW00051 Topic 3 – Legal writing 79 • • • • • by the essay – what opinions do you hold which have developed because of this experience or knowledge? If relevant. and to draw on that as the main source of information. No evidence of reading beyond the Study Guide. visit the Academic Skills Development Unit website to gain assistance in your essay writing skills. so that you can include appropriate citations in your essay.

Citations are the ‘locations’. my conclusions are … ’). Referencing is the way you allow a reader to find out the locations – ie by inserting footnotes in your work. Nor should you be shocked if the footnoting or endnoting differs. analyses … Finally. ‘The first part of this article examines … The second part. Its purpose is to establish clear guidelines for you about our expectations while you are studying here. A modified version of the School style is contained in your text. so that they have some idea of what it covers and how it approaches a subject before they read it. You may also refer to the AGLC for guidance and clarification on referencing matters. or essay. When you read through this chapter – you will note the slight differences. a court. We would prefer that you follow the School Style Guide. It also refers to the system of citation and referencing adopted. It is designed to provide the reader with an overview of your article or essay. The materials in this unit reflect the School’s house style. a brief description of how the article is structured (for example. a brief description of the analysis or method used in the article. such as a university law school. if you were submitting your Australian Legal System or Legal Process assignment to the Australian Law Journal for publication. you would need to present it in a format that met their journal house style. A house style will usually set rules about spelling. There is no one style used for legal citation and referencing within Australia. We’re both right! The specific house style used by this School is set out in the Law School Style Guide. please. and provides a brief statement of the conclusion reached. which we have supplied with these materials. • Referencing style r Style Guide Pages 9–14.80 LAW00051 – Legal Research and Writing The abstract or précis is an outline of the article. Remember follow the School Style Guide where possible and – the important thing about referencing is to be consistent and accurate. A ‘house style’ is the legal referencing system and ‘language rules’ followed by a particular place. gives an overview of the analysis used to investigate the topic. B Bott. So. . you may find some clarification in the textbook. and R Talbot-Stokes. format and presentation. and the use of numbers and dates within the text of a work. However. don’t be shocked if you see a citation presented in a different format to the one we are teaching you. Nemes and Coss’ Effective Legal Research. which: • • • describes the topic or issue being analysed. and so on. It usually includes some or all of the following information: • • • a brief statement of the purpose of the article. So for instance. and a brief statement of the conclusions made in the article. a publishing company.

AGLC [1.5]. Like this: Macken makes this point well when she says: Claire Macken. without having to refer to any other source. we will explain some particular issues related to referencing in your written work. You must provide a citation for all material that is paraphrased in your written work and for any direct quotes taken from the work of others. Consistency and accuracy are the most important things. 2010). You must provide a citation for every legal principle to which you refer. For direct quotes.4 Long quotes should be indented without quotation marks. is that there is more than one method of legal citation and referencing and we have chosen our own particular options to be used in this School. Remember these points when using quotations: 1. The reason for this. The rules of citation used in this School are set out in our Style Guide. The purpose of a citation is to ensure that the reader is able to identify and locate the sources – both primary and secondary – relied upon by the writer of an article or other work. Law Student Survival Guide : 9 Steps to Law Study Success (2nd ed. for every idea you’ve mentioned that belongs to another person. 4. The most important thing to remember about citation is its purpose. Anita Stuhmcke. 2.3. 3 4 .LAW00051 Topic 3 – Legal writing 81 Citations and referencing As indicated in your Style Guide. For the moment. Like this: As was noted earlier ‘plagiarism occurs when “the ideas or words of another person are taken and used without acknowledging their true source”’. A quotation within a quote is contained within double quotation marks. The details provided within the citation must be sufficient to enable the reader to identify and locate the source referred to. You should keep the Style Guide and the AGLC handy as you work through the rest of this topic. 3. LAW00051 Legal Research & Writing: Study Guide (2010) 68. 2005) [4. Like this: It has been said that ‘learning law can be interesting and fun’3 provided you have the necessary tools. We will look at the citation style for both primary and secondary sources as you work through the topics in this unit. the purpose of citation and referencing is to state the source of information and to ensure that a reader can locate it. you need to bear in mind the purpose of citation – to enable the readers to locate the source for themselves. Short quotations (of three lines or less) should appear in the body of the text within single quotation marks. Within all of this. 5. Legal Referencing (3rd ed. It is essential in your law studies that you learn to provide citations correctly. as we have already stated. r r Style Guide Pages 9–21. and for every quotation you take from another writer’s material. Citing quotations and paraphrases Style Guide Pages 11–13.1] in Jill Cowley et al. the words must correspond exactly.

2010) 80.82 LAW00051 – Legal Research and Writing To make time to learn the law. 21. Refer to the feedback given to the paraphrasing and quotation activities (3. To make reference to that judgment. you must indicate that you have obtained it from the textbook rather than the original source. as an LLB candidate – you will find sufficient time to study law over the duration of the semester. but do not use an ellipsis at the beginning of a sentence. 2005) in Jill Cowley et al. For example: In the above passage it was noted that ‘[a]s Stuhmcke says. Second-hand citations should not appear in the bibliography. Second-hand citations Generally. For cases. However. you need to spend some time planning. For instance. 9. Legal Referencing (3rd ed. as well as fitting in all the other commitments in your life. 7. (See the Style Guide at page 17 here). (See the Style Guide for examples) Omissions in the quotation are indicated by an ellipsis ‘ … ’. In this instance. Anita Stuhmcke.1 and 3. For example: Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 in Michelle Sanson et al. For secondary materials site the source accessed only in the bibliography. .5 6.1 1. if you want to use the quote. 2002) 410. many law textbooks repeat quotations from judgments in cases. rather than merely copying the quote from the textbook. Connecting with law (2nd ed. ‘[ ]’. you should find the original case report. 8. This is so that you can ensure the accuracy of the quote for yourself. it is essential that the information you use is taken from its original source. organising and periodically reviewing your weekly timetable …. C Menkel-Meadow. above n 2. If you treat your studies as a job – that is. Take note of where the citation reference is given in that feedback. ‘Portia in a Different Voice: Speculations on a Woman’s Lawyering Process’ (1985) 1 Berkeley Women’s Law Journal 39 in R Graycar and J Morgan. The Hidden Gender of Law (2nd ed. LAW00051 Legal Research and Writing Study Guide (2010) 78. (see example at 5 above where a ellipsis is followed by a full stop to indicate an omission from the quote and the end of a sentence. Mistakes in the original should be noted by using ‘[sic]’. it is appropriate to list the case citation under the cases heading and the secondary source it was located in under the appropriate heading.2). You do so as follows: Style: Full citation of the original source ‘in’ the full citation of the source used. For the examples above the entries in the bibliography would appear as follows: 5 Macken.) Any alterations or additions to the text of the quote should be contained in square brackets. it may not be possible to locate the original source of a statement quoted in a text. (See the Style Guide for examples) All quotations must have an exact reference that should be contained in a footnote. plagiarism occurs when “the ideas or words of another person are taken and used without acknowledging their true source”’.

The Hidden Gender of Law (The Federation Press. Make sure that you are familiar with how to use the automatic footnote function in your word-processing program.4] (note the slight difference here). J et al. Cases Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Other Sources Cowley. Refer to an immediately preceding footnote that is exactly the same using ibid or ibid followed by a pinpoint reference where only the page number or paragraph is different. Footnotes r Style Guide Pages 9–11. 2002). Sanson.1]. our method of repeating citations requires you to do the following: 1. This style has been adopted because it is relatively simple. The term ibid should be used to refer to the immediately preceding footnote where that reference is exactly the same or only the pinpoint reference is different. It is also appropriate to use abbreviations in footnotes. AGLC [1. . we will look at how to present footnotes. 3. Connecting with law (Oxford University Press. Next. 2. LAW00051 Legal Research and Writing Study Guide (2010). 2nd ed. The ‘X’ will be the footnote number at which the original (full version) of the citation appears. Give the full citation in the footnote the first time a publication is used in the text of your document.LAW00051 Topic 3 – Legal writing 83 Articles/Books and Reports Graycar R and Morgan J. Repeating citations in footnotes r Style Guide Pages 9–10. It is not usual to use abbreviations in the main body of your text. Briefly. 2nd ed. Refer to a previous footnote that is not the immediately preceding footnote by using just the author/case name of the original footnote and then ‘above n X’. The School follows the ‘above n X’ style for repeating citations. AGLC [1. You must use footnotes in all of your essays and assignments. It is important that you follow the procedure to repeat references in footnotes correctly. 2010). The only exception to using ‘above n X’ when repeating citations is where you are repeating an immediately preceding reference that is the same. Note it is not necessary to provide a second-hand citation for legislation. M et al.

9. The repeat citation then uses the shortened name only before the ‘above n X’. where relevant. Thereafter the Act can be referred to in the document by its short title only or an abbreviation. so ibid is used. Graycar & Morgan. 5. 13. 2008) 39. if it is necessary to cite an Act (for instance. ss 15AA and 15AB. ‘Portia in a Different Voice: Speculations on a Woman’s Lawyering Process’ (1985) 1 Berkeley Women’s Law Journal 39. 2.murdoch. [8]. these would appear as follows: 1. For cases repeat the names of the parties before ‘above n X’. 21. 13 and 19 above. 14. 15. you should shorten long case names. R Graycar and J Morgan. 17 K Mwenda. Australian Family Law The Contemporary Context (Oxford University Press. Gummow and Hayne JJ).) Note that it is seldom necessary to give the full citation of a statute in footnotes as the full citation should appear in the text of the document the first time the Act is mentioned. ss 45 and 46. 20. ss 18 and 22–50. above n 1. However. 358. 19. 18. ‘Legal Aspects of Foreign Direct Investment in Zambia’ (1999) 6(4) E Law 21. 7. without them having to turn back pages to find the original citation. use ibid if it is the immediately preceding footnote and is exactly the same or only the section number is different (see footnote 16). 3. Footnote 14 repeats the exact same information as given in footnote 13 including the pinpoint paragraph number. 7. Menkel-Meadow. Crimes Act 1900 (NSW). above n 4. C Menkel-Meadow.au/elaw/issues/v6n4/mwenda. above n 3. Garkawe v Cowley [1997] HCA 54 (16 October 1997) [26–30]. so repeat the citation of the Act when it appears in the footnotes as shown above at footnote 20. Graycar & Morgan. 6. 18 and 21 above. However. 16. • • • • . (See footnotes 9. 8.edu. Mwenda. Acts Interpretation Act 1901 (Cth). so ibid and the pinpoint page number are used. 10.) For cases. to refer to particular sections. <http://www. (See footnotes 6. 1990) 410. 4.) NOTE this is different to the AGLC which suggest you do not use ‘above n X’ for cases. 11. is given before the words ‘above n X’. Ex parte Lam (2003) 214 CLR 1 (Lam) in B Fehlberg and J Behrens. McHugh. 453. above n 17.html>. The name of the author(s) [editors] of the work. ss 15 AA and 15AB. Ibid. Re Minister for Immigration & Multicultural Affairs. or to discuss a number of different Acts).84 LAW00051 – Legal Research and Writing If following the Style Guide. Ibid 46. Garkawe v Cowley [1997] HCA 54 (16 October 1997) [15] (Gaudron. Notice that in the above example: • • • Footnote 2 repeats the same reference as provided in footnote 1 apart from the pinpoint reference. above n 3. Note how the shortened name is indicated in brackets after the first full citation in footnote 4. The Hidden Gender of Law (Federation Press. Fehlberg & Behrens. Lam (2003) 214 CLR 1. you should not use ‘above n X’ for legislation. (See footnote 9 above. Garkawe v Cowley [1997] HCA 54 (16 October 1997) [25]. This is to allow the reader to identify where the information comes from. Ibid s 48. 10. 12. Crimes Act 1900 (NSW).

Sydney. For example. and to ensure that you no longer follow that beastly fellow Pollock on contracts. 1978). 6. 53 is pretty good too). 1992. Correct the citation style and use footnotes.) Note that pinpoint references to a paragraph are indicated by placing the number in square brackets. socks. far too many to name here (for instance sections 45 and 46. NC Seddon.4 Using the Style Guide. I don’t agree with her comment about the gloves.) .’8 Where you are referring to a specific point in a document you should provide a pinpoint reference. (See footnotes 8 and 12 above). but one in particular springs to mind as of great relevance. always pleases (section 12 and 15 are really the most relevant).) There is also statute law that is important in this area. There are many important sections in that act. gloves and frustrated contracts. texts and journal articles etc. I actually heard someone being interviewed about that once and they said: You can never have enough hats. interviewed in England on the BBC-TV. One of the best provides students with a clear guide to contract law. Mellish LJ says a very interesting thing about contract law (p 465).) Keep in mind that the most important point is to be consistent and accurate. Many textbooks have been written about contract law to amuse us and ensure that we do not suffer from insomnia. 19 and 21 above. by P Davis called ‘Promises to perform an existing duty’. We have followed the style set out in the Style Guide and AGLC. and MP Ellinghaus – the sixth Australian edition. with respect to footnote 8 above. r a Style Guide Pages 14–21. s 16 of that Act is of particular importance (which is what it says in Cheshire and Fifoot on page 345). 2. for instance the Frustrated Contracts Act (NSW. Butterworths. (See footnotes 1. There are too many to mention directly (for example.LAW00051 Topic 3 – Legal writing 85 • • It is appropriate to omit the name of the Act to introduce the citation where it is obvious from the text in the document that Act is being discussed. vol 56 starting at p 77). and is fondly referred to as Cheshire’s (Cheshire and Fifoot’s Law of Contract. Now use the Style Guide to complete the following exercise. It is called ‘The essence of contract’ and is by someone called OL Coote (tragic really). last Thursday night. legislation. (who had it published in 1988 in the first volume of the JCL. (See footnotes 13. Vol 6 Cambridge Law Journal 1927 p 203. certain sections of the Acts Interpretation Act 1901 (Cth) broaden this power. and another one is by John Howard called ‘Terms to be supplied by a contracting party’ in the 1985 Australian Law Journal. (Patsy Stone. in a show called Absolutely Fabulous. on page 91. re-write the following passage. At one point. Citation You would have noticed in the above example that there is a specific way to cite cases. Dickinson v Dodds (p 463 Vol 1876 2 Ch D) is a most interesting and unusual case. It is essential to thoroughly understand all of these.) There are also many journal articles written about this hot topic. Of course. the text may read something like: ‘However. 7. JG Starke QC. Activity 3. 19 and 21 above. 13.

5. Cowley. LAW00051 Legal Research and Writing Study Guide (2nd ed. 6 See page 13 of the Style Guide. Social and Cultural Rights. Legislation Family Law Act 1975 (Cth). Articles/Books/Reports Bott. 4. The purpose of a bibliography is to give the reader the list of resources used to prepare the work. Anthony. 3. 4. AGLC [1. . 2. this is slightly different to the way in which texts or journal articles etc are cited in footnotes. Cases Mallett v Mallett (1984) 156 CLR 605. Nemes and Coss’ Effective Legal Research (LexisNexis Butterworths. NOTE publications details should be included. 5th ed.86 LAW00051 – Legal Research and Writing Bibliographies r Style Guide Page 13. Other Cowley. If you have missed a major work. 2. 2007). This makes locating the sources easier in lengthy bibliographies. according to the surname of the author. it can cast doubt on the validity of your conclusions. 5. 3. One thing that the reader may be looking at is whether you have referred to and used all of the relevant material in an area. All these references should be listed in alphabetical order. B. J and others. 2007). Falconer. 2008). Dickey. Family Law (LawBook Co. J.16]. Some other points to note about bibliography entries: • • • Pinpoint references (page and paragraph numbers) do not appear in the bibliography do not include the sections of legislation just the title of the Act second-hand citations should not appear in the bibliography (see above) The citations in your bibliography must conform to the rules set out in the Style Guide. As you can see. opened for signature 16 December 1966. 999 UNTS 3 (entered into force 3 January 1976). But remember: do not use the bibliography as a substitute for accurate footnoting. All of your assignments should include a bibliography unless you are advised otherwise by the unit assessor. In a footnote the given name is first. You should separate your list with the following headings: 1. 3rd ed. In a bibliography the surname of an author (or editor) is placed first. L. You may also leave yourself open to ‘academic attack’! To avoid this you should research comprehensively and prepare a comprehensive bibliography of the works you have used. Articles/Books/Reports Case law Legislation Treaties Other sources (this should include websites). Your bibliography would look like this:6 1. before the given name. Treaties International Convention on Economic.

Filenotes – as the name suggests – are the notes that we include in those files. An annotated bibliography may also be known as a literature review. All deeds. The reasons we should take filenotes are the same as taking notes of other information. and a brief summary of what each article or book says. Writing for legal practice r Reading 3. and to record other important events related to the work done for a particular case. Filenotes (internal memoranda) Why should we take filenotes? In legal practice. Obviously. for instance. the client dies and it is discovered that the will is lost. stating how it relates to the topic. Also. 7 Instructions is a term used to describe the directions given by a client to his or her legal representative. with a brief summary of each of those materials. It is usual to retain filenotes for seven to ten years. For example. are retained in a deed box usually for a much longer period of time.LAW00051 Topic 3 – Legal writing 87 Annotated bibliography Another form of bibliography is called an annotated bibliography. Taking filenotes is rather a professional necessity. which gives a list of reference materials on a particular topic. There are no legal requirements that solicitor’s offices keep filenotes. It is now common for filenotes to be recorded on a computer database. taking notes crystallises our thoughts. The filenotes that you have taken may be used as evidence to determine the intention of the testator. you may be selective in preparing an annotated bibliography. Five years later. diary pads or file pads.9 M Costanzo. You should note that this is not always the case. Legal Writing (1993) Ch 1. Most offices have special notepads that are used to record filenotes. The format of an annotated bibliography should be the same as for other bibliographies. it is usual to create a file to record and collate all of the information related to a particular client’s case. What format should the filenotes take? Filenotes are usually recorded on paper and filed chronologically in the client’s file. to record the details of telephone conversations held with the legal representative of the other party. It is a report. and we could forget vital information or instructions7 that we have received. a client visits you to make a will. These are often known as memo pads. It is usual to take a filenote to record the details of an interview with a client or a witness. Importantly. The main reason is that our memories are not perfect. The purpose of an annotated bibliography is to provide the reader with a list of the literature available on a topic. taking and keeping filenotes means that others can pick up the file and work on it in your absence. so that we capture the essential information. .

that is. you should clearly indicate this by writing ‘Instructed: … ’ and clearly list your instructions. It is helpful to divide the matters as litigious and non-litigious. the client’s name.8 Textbook McDonald and Clark-Dickson. Take notes. whether there are any special requirements for building approval. not to show off or to outwit the reader. You will also need to record any witness details. In this case. whether the land is prone to flooding and if the land is contaminated. telephone conversation. the subject of the client’s matter (case). and then prepare a filenote. Most filepads will contain a place where this information can be recorded. you are basically recording the client’s objectives in a straightforward way. Your client may wish to purchase a block of land in an industrial estate to build a factory. the file number if this is relevant. a r Activity Ask a friend to tell you in detail what they did last weekend. The remainder of the content of the notes will depend on what sort of matter it is. . An example of a transactional matter is conveyancing. whether industrial licences are required. that is. your notes should include what investigations you will be required to do. Filenotes should be headed clearly. Writing letters The normal aim of writing is to communicate.88 LAW00051 – Legal Research and Writing What should the filenotes contain? Generally. Generally the notes are to record the client’s objectives. If the matter is a transactional one. whether or not litigation will be involved. You will also need to note relevant documents and what they support and then you will need to check the documents themselves. to record discussions with the other party (especially points of agreement). and to what aspect of the matter the witnesses relate. whether there are any current development consents that have been acted on. Ch 6 ‘Letter Writing’ 8 M Adler. If it is an interview or a telephone conversation. more information needs to be recorded. Check back with your friend to see how accurate your notes are. Clarity for Lawyers : Effective Legal Writing (1990) 23. and whether the event was in person or by telephone. In a non-litigious matter. the time of the interview. and to record events. shortly. In a litigious matter. the following information should be recorded on each filenote: • • • • • • the date. We will look at preparing witness statements (and affidavits and statutory declarations). particularly as your client will probably be swearing an affidavit. the file name. more extensive notes are required. or event. what environmental planning instruments affect the land. If within those notes you are recording instructions received from the client. if this may become important in later proceedings. it may also be helpful to record the actual words used by the other person.

11 K and E Winschuttle. Consider what your requirements are and the advantages and disadvantages of the different forms of communication available to you. . the language that it is appropriate and so on. Layout Look at the letters in Chapter 6 of McDonald and Clark-Dickson. the purpose of the letter and the identity of the recipient. Writing. the first step in good written communication. Even so. receiver’s address. Almost every business letter should conform to a standard format. Remember your reader. Activity 3. but equally importantly.LAW00051 Topic 3 – Legal writing 89 r r a Reading 3. then a telephone call may be more to your advantage. a paragraph will contain several sentences. think first whether it is necessary to write at all. If you use plain language and good design your letter will be easy to read. date. The format includes: • • • letterhead. Researching. Obviously. Sometimes a paragraph will be only one sentence long. writing then faxing or emailing a letter may be cheaper. Sit in the reader’s chair and try to imagine how you would feel if you were the reader of the letter you are writing. Planning a legal business letter Think before you write and try to plan your communication by identifying the purpose and objectives of your letter. Such practice would also provide a permanent record – one of the main reasons for putting messages in writing. if they are all on the same point. At other times. If speed of communication is important.5 What are the different functions of legal letters (correspondence)? There is no set list of the types of legal letter that may be written. that the reader understands what you are endeavouring to communicate. then listing your objectives and putting them in a logical order according to your perception of the reader’s expectation. Each point should become a paragraph in the letter. Communication requires not only that you express all you wish to. will set the tone to be used. before starting to compose a letter. however. Write a rough draft. Legal Writing for Paralegals (1993) 91–93 Reading 3. When you consider the costs of an STD or ISD call. Using plain legal language principles will assist you to prepare a legal letter for any purpose. listing your objectives and each point that you wish to make. You will have noticed that there are certain conventions governing the layout of a letter.10 S Barber. Communicating (1988) Ch 10 Why do we write letters? The simple answer is that we write letters to communicate with a reader.

ring the organisation to whom you are writing and ask for the receiver’s correct form of address. you may catch your reader’s attention by: • • • • • • referring to a common goal or interest making a clear statement of fact about something the reader will be interested to know saying ‘yes’ to a previous request asking a question paying a sincere compliment.90 LAW00051 – Legal Research and Writing • • • • salutation (your greeting). It may be relevant if the communication needs to be referred to in the future. It is important. ‘Dear Secretary’. However. but avoid boring hackneyed phrases. ‘I am the solicitor acting for … and I would … ’ Depending on the purpose of your letter. Acknowledge the receiver’s previous communication. NEVER send an undated letter. however this may look clumsy and also indicates that you do not know to whom you are writing. In some instances. or put the acknowledgment at the end of your opening paragraph: … and I will forward a copy of the report you requested in our telephone conversation yesterday. Build goodwill in the opening paragraph and continue throughout the letter. that the date of writing is included. (The date will be clear from your letter). and complimentary close and signature. rather than leaving it to the last paragraph. Some important points to remember follow: Date There is no rule that says the date must be inserted in a particular place in a letter. Instead of … Further to our telephone conversation of yesterday’s date … rephrase it: We discussed [the sale of your property] during our phone call this afternoon … . Writing the letter Opening paragraph It is good practice to identify your topic at the opening of the letter. or making an unusual or original statement that will arouse the reader’s curiosity. problems may arise if you use the conventional ‘Dear Sir’ to start your letter. it is preferable to be a little clumsy than a lot sexist! Whenever possible. Salutation If you do not know the name of the receiver. it may be acceptable to use the title in the salutation. however. descriptive heading. for example. body of the letter. The many women holding managerial and other positions in Australia do not appreciate it. An alternative could be to use ‘Dear Sir or Madam’. Examples of opening clichés to be avoided are: I am writing to inform you … .

be honest. Coherent Coherent letters are those that flow smoothly and logically. it will affect the goodwill function of your letter. Answer all points or questions raised. and double-check the information. You should remember the following: If you are seeking action – you’ll need to present facts and other information to support your request. a Activity 3. Use the truth. To ensure this: • • • • • • Carefully read letters you receive. Write a short summary of the principles.LAW00051 Topic 3 – Legal writing 91 We have before us yours of 21st instant … Responding to yours of yesterday’s date … Body of the letter This is where you set out all the points that you listed in your rough plan. We would add the following two to these principles. secondly. One way of knowing and remembering what to check for is to note that the eight elements of good letter writing all begin with the letter ‘c’. Use words like first. If you are seeking approval or information – you’ll need to concentrate more on persuasive argument than on facts. Pencil notes in the margins as you read the letter. One way of avoiding this is to use signal phrases to link your ideas. Incoherent letters leave the reader confused. such as … Trusting my request … or I eagerly await … State briefly and clearly what you wish the receiver to do: Please telephone me with your answer … Here are more clichés to avoid: Thanking you in advance … Please do not hesitate to contact us … Trusting this will meet with your approval … Assuring you of our co-operation … Thanking you in advance. consequently. and are easily understood by the reader. Correct Although it may seem an obvious point. .6 In Reading 3. Make drafts of important letters. nevertheless and in addition. It you do not. I remain … Checking the letter You should always check your letters. Last paragraph Forget about flowery last paragraphs. Write or dictate your letters only once you have all the facts you require.11 the authors list the ‘c’ principles of good letter writing. make sure your letter is correct.

a Activity 3. our society appreciates that you are a very busy and important person but we would be very grateful if you could accede to our requests. phone the organisation and seek clarification.92 LAW00051 – Legal Research and Writing • • • • • If a figure is an estimate. B.30 at night and usually lasts for a couple of hours. Our society knows that you are a very busy person but we were hoping that you could at least do two things for us. Be careful of people’s names. (KOSSS)) . The meeting starts at 7. Check the spelling. If you have dictated the letter. As you may or may not already know. Firstly. could you introduce in Parliament a bill for controlling children in the streets after dark. Proof read it yourself. KEEP OUR STREETS SAFE SOCIETY (KOSSS) 101 Brave Avenue. We have surveyed the residents of Ballina and almost three quarters of them were concerned as to lawlessness which is on the increase.7 Rewrite the following letters so that their messages are clear and goodwill is maintained. Secondly. of the aforesaid. BALLINA. Use white space – that is. Many word processing programs have a spell-check function. Use the spell-check program. Willing. Pay attention to the layout. rather than basing your letter on guessed ‘facts’ and figures. Keep Our Streets Safe Society. However. Thanking you in advance. don’t rely on them to ensure the letter is correct. NSW 2478 1 October. NSW. Our society is getting very alarmed at the growing increase in lawlessness of the children around here. say so. then check the actual words again yourself. If you are unsure of a signature. these programs will not alert you to the fact that you have written ‘form’ when you intended ‘from’ and all those other words where you can transpose one letter which still spells a word the spell check can identify as a word without paying any attention to the sense of the sentence in which that word appears. especially after dark. and have had it typed by someone else. 2481 Dear Mr Willing. I am the president and founder of the Keep Our Streets Safe Society (KOSSS) here in Ballina. could you attend a meeting of our society (KOSSS) here in Ballina on Monday the 30th instant to tell us your views of this problem. The Honourable Member for the North Cost 1 Happy Street BYRON BAY. Yours faithfully Miss Givings (President. RE: KEEPING OUR STREETS SAFE IN BALLINA I refer to my letter of the 17th ultimo. Our society is very highly thought of here in Ballina and we work very hard to keep our streets safe. space without printing – to make your letter attractive and easy to read. As I said. 2009 Attention: Mr I.

As you can see.LAW00051 Topic 3 – Legal writing 93 EL FINCH & ASSOCIATES. The principles of plain legal language can be used in all different types of legal writing. New South Wales. SOLICITORS 39 Phillip St. 2479. However I bring to your attention the fact that there is an amount of $500. nonetheless it is my firm policy that all accounts be settled within ninety days. be guided by your purpose and the identity of your reader. and will assist you to achieve the objectives of legal writing more effectively. It will be necessary for us to hold a conference to discuss the aforementioned charge of resisting arrest and I therefore request that you telephone this office at your earliest convenience to arrange a mutually suitable time. you need to have thorough understanding of the relevant area of law. You do not need to follow the plain legal language principles slavishly – instead use them when they will make your legal writing more readable. 2009.. A main objective of legal writing is to be clear and legally accurate. the purpose of legal writing is varied. Bangalow. . I am writing to confirm that I am able to appear for and on your behalf on a charge of resisting arrest in the Lismore Local Court on 15 November 2009. Remember. and the way in which these features of legal writing can be achieved by using plain legal language principles. You will be introduced to other forms of legal writing in other units you study with this School. Please send this amount by cheque by return mail. Although I wish to appear for and on your behalf on the pending charge and I am aware that you are in financial difficulties. 2478. Yours sincerely Beth Finch Solicitor Drafting other legal documents In this unit we will not be looking at how to draft other types of legal documents. These principles are applicable to any type of legal writing that you may need to undertake. New South Wales. Dear John Further to our telephone conversation of yesterday’s date.00 owing from my appearance on your behalf on an offensive language charge on 15th May. My Ref: ELF/123 1st October 2009 Mr John Goode 1 Anywhere Street Lennox Head. To be able to draft legal documents. Summary This topic has introduced you to the important features of legal writing.

the common law. (b) No dogs. it does not protect the rights of all Australians. Some Australian Indigenous laws have been destroyed by colonisation. such as implied constitutional limitations.* f Feedback 3. (d) Whereas you have applied to become a member of this club and whereas the board of this club has approved such membership by you. Although there are many persuasive arguments against this.3 It is my view that the present Constitution does not adequately protect the human rights of all Australians. and continue to be practised by Indigenous Australians: While some Indigenous common law has been destroyed by the process of colonisation within Australia. f f Feedback 3. Moreover. However. the club will require an expenditure of $20 for each hour in such times. it is my view that it is time that a constitutionally entrenched Bill of Rights is added to our Constitution. as well as rural and remote communities’. The recognition of their law is fundamental to the enjoyment by Indigenous people of their human rights. much remains as a living and dynamic feature of contemporary Indigenous Australian society – in urban areas.2 (a) Indigenous laws remain a feature of contemporary Australian society. can enter or stay in this park unless they are restrained on a leash by the person accompanying them. Indigenous Australians maintain a vibrant practise of their laws in their everyday lives. as well as rural and remote communities. although I reach the conclusion above. all combine to provide protection for human rights in Australia. including dispute resolution. regardless of their breed. who are your neighbours in No 27. . it is my great pleasure to inform you of the aforesaid approval. Further. and Australian and international mechanisms for the protection of human rights.* Feedback 3. the present Constitution. I must and will request that you cease from attending this centre for entertainment.* OR Despite the fact that Australian laws fail to give full recognition to Indigenous laws.* (b) Indigenous law remains ‘a living and dynamic feature of contemporary Indigenous Australian society – in urban areas. in conjunction with various other mechanisms. family and other relationships.94 LAW00051 – Legal Research and Writing a Revision activity Rewrite the following in plain language. and the protection of Indigenous beliefs and culture. even so.1 Indigenous laws encompass a range of matters of importance to Indigenous society. the question must be raised whether the present Constitution will adequately protect all Australians in our rapidly changing world. request that you cease and desist from burning your rubbish next to the fence that divides your two properties without their antecedent approval. (c) Until such time as you can modify your behaviour. My first concern is that it does not adequately protect the human rights of Australians. ‘[t]he recognition of Indigenous common law is fundamental to the exercise and enjoyment of human rights by Indigenous Australian peoples’. (e) If you are desirous of the club acceding to your request to utilise the squash courts out of the normal and usual hours of the club. (a) My clients.

For example. Mellish LJ says a very interesting thing about contract law. It is called ‘The essence of contract’ and is by someone called Coote (tragic really). Cheshire and Fifoot’s Law of Contract (6th Australian ed. 1992). When he spoke with the engineer.8 I actually heard someone being interviewed about that once and they said: You can never have enough hats. For example. ‘Promises to Perform an Existing Duty’ (1927) 6 Cambridge Law Journal 203. above n 1.4 suggested answer Dickinson v Dodds1 is a most interesting and unusual case.2 Many textbooks have been written about contract law to amuse us and ensure that we do not suffer from insomnia.5 Legal letters may be written for a variety of functions. Always use a simple term rather than a complex term. ‘Terms to be Supplied by a Contracting Party’ (1985) 56 ALJ 77. he said the design should be changed.5 There is also statute law that is important in this area. One of the best provides students with a clear guide to contract law.LAW00051 Topic 3 – Legal writing 95 f Feedback 3. LJ). With this kind of sentence. MP and Ellinghaus. Dickinson v Dodds. and to ensure that you no longer follow that beastly fellow Pollock on contracts. For instance. I don’t agree with her contention that gloves are important. Interview with Patsy Stone.7 There are many important sections in that Act. Completeness A legal business letter must not only say what the writer intends. always pleases. it must say all that the writer intends. socks. J Howard. see ss 45–6 and 53. Absolutely Fabulous (BBC-TV (UK).6 Clarity A legal business letter should contain a clear meaning to the reader and should mean exactly what the writer intends. or to demand. far too many to name here. ss 12 and 15 are the most relevant sections. legalese and technical language when appropriate. above n 3. Consider your reader and avoid jargon.30 pm. gloves and frustrated contracts. including seeking or providing information. There are too many to mention directly. JG Starke QC. and is fondly referred to as Cheshire’s 3 There are also many journal articles written about this hot topic. 9. OL Coote. NC Seddon. It is essential to thoroughly understand all of these. watch your grammatical structure and avoid sentences with double meanings. P Davis. for instance the Frustrated Contracts Act 1978 (NSW).4 but one in particular springs to mind as of great relevance. 465 (Mellish.6 Section 16 of that Act is of particular importance. ‘The Essence of Contract’ (1988) 1 JCL 91. Starke and others. Like any other business letter. At one point. Do not sacrifice completeness for the sake of conciseness. Further. a legal letter usually aims to get physical action and or agreement. 22 May 1997). . 345. 5 6 7 8 9 f f Feedback 3. Feedback 3. to persuade.9 ••••••••••••••••••••• 1 2 3 4 Dickinson v Dodds (1876) 2 Ch D 463. a reader is left wondering who said what.

f Feedback 3. Be sure that the figures you use are correct. stick to it and avoid long sentences and meaningless phrases. or are forced to write a letter to collect a debt. then you will need to be convincing. The residents were particularly concerned with the increase of violence at night. Even if you disagree with someone. Being courteous does not mean being subservient or ‘toadying’. We would also like to discuss with you the possibility of introducing a bill in Parliament that would provide a curfew for children. you should still be courteous. don’t use More than half of the residents have agreed … . do so but acknowledge the other’s position. I am writing to invite you to attend a meeting of our society on Monday 30 October at the above address. say Sixty per cent of the residents have agree …. so write to them as you would have them write to you. We hope to begin the meeting at 7.96 LAW00051 – Legal Research and Writing Conciseness Being concise means being economical with words. Ms B Givings (President. You may recall my letter of 17 September about this matter. they are convinced by clear. Our society is concerned at the increase in lawlessness of the children in this area. Show respect for their point of view while standing firm.7 KEEP OUR STREETS SAFE SOCIETY (KOSSS) 101 Brave Avenue BALLINA NSW 2478 1 October 2009 Mr I B Willing The Honourable Member for the North Cost 1 Happy Street BYRON BAY NSW 2481 Dear Mr Willing I am the president of the Keep Our Streets Safe Society in Ballina. concrete and simple statements. Get to the point in the opening paragraph. Remember that you may need the goodwill of that person at some other time. keep the information as real and as exact as you can. Do not belittle your receiver in any way.30 pm and would be very grateful to hear your views on this subject. no legal business letter should exceed one page. For example. need to take a strong stand. Conviction If you are seeking to persuade someone to do something. people have better things to do that read long winded letters. Avoid generalisations and estimations. Could you please telephone me on 066–123 456? Yours faithfully. Recently we surveyed the residents of Ballina and 72% of those responding agreed with our concerns. Most people are not convinced by flowery phrases and waffly facts. KOSSS) . If you need to refuse a request. People at work do not have time to wade through long letters to discover why you have written: put simply. Concreteness Accuracy is very important. Generally. Courtesy Courtesy promotes goodwill and co-operation.

M. Modern Legal Drafting (Cambridge University Press. SOLICITORS 39 Phillip Street BANGALOW NSW 2479. you may not come to this entertainment centre. My Ref: ELF/123 1 October 2009 Mr John Goode 1 Anywhere Street Lennox Head. Laying Down the Law (LexisNexis Butterworths.LAW00051 Topic 3 – Legal writing 97 EL FINCH & ASSOCIATES. (d) Your application for membership of this club has been approved. If you are unable to pay the full amount immediately. 2009) Ch 16 Crosling. please contact me to discuss the possibility of an alternative arrangement as you will need to pay some of this amount before our next meeting. (b) Dogs must be on a leash in this park. H. P. (c) Until you change your behaviour. It is this firm’s policy that all accounts must be settled within ninety days. 2010) Butt. P and Castle. 2004) Asprey. 10th ed. Writing in Plain English (AGPS. 4th ed. R. C and others. Students’ Guide to Legal Writing. G and Murphy. 2478. Dear John Your court case I confirm that I am able to appear for you in the Lismore Local Court on 15 November 2009. 3rd ed.4th ed. Could you please telephone me on 066–123 456 to arrange a suitable time? Our records show that there is an amount of $500. I am aware that you are experiencing some financial difficulties. E et al. 2001) Campbell. Further readings Aitken. 2010) Cook. 2009) Eagleson. 1990) . You have been charged with resisting arrest. How to Study Business Law : Reading. Law Exams and Self Assessment (The Federation Press. 7th ed.00 owing from my last appearance for you on 15 May 2009. Yours faithfully. (e) There will be a $20 fee for each use of the squash courts out of normal hours. J and Butt. Beth Finch Solicitor f Feedback to revision activity (a) Your neighbours at No 27 request that you stop burning your rubbish next to your dividing fence if you have not notified them first. I would like to have a meeting with you to discuss this matter as soon as possible. New South Wales. The Elements of Drafting (LawBook Co. however. Plain Language for Lawyers (The Federation Press . R. Writing and Exams (LexisNexis Butterworths.

98 LAW00051 – Legal Research and Writing .

It also aims to provide you with some advice about how to perform in law exams – that is. Problem solving in tutorial work and law exams Legal reasoning r Reading 4. and be familiar with the technique used to complete law exams successfully. The part that you have read describes what we call a ‘black letter’ approach to legal reasoning and problem solving. it is an important skill to develop early in your law studies. Objectives The objectives of this topic are to: • • identify the basic steps involved in solving legal problems. As you progress in your studies your problem solving skills will be refined and improved. We are not trying to panic you by talking about exams so soon. and introduce you to problem solving. Law as Culture (Federation Press. Therefore. This topic builds on the skills you developed in effective legal writing.1 K Laster. 2nd ed. but the sooner you begin to develop the skills used in law exams. Problem solving is a common assessment task used in law schools. (We will look at the detail of HIRAC in a moment. This topic will help you develop the skills involved in applying the legal principles that you find in cases and legislation. and that you will go on to develop in understanding case law and legislation. The readings in this topic will provide you with guidance on law exam technique. the better you will perform at the end of this session.) However.Topic 4 Legal problem solving and law exams What we’ll do in this topic This topic aims to introduce you to the skills involved in legal problem solving. as Laster says herself ‘HIRAC and other formulaic approaches to problem-solving are predicated on 99 . some ‘dos and don’ts’. A common formula used to approach legal problem solving for law studies is called HIRAC.1 is only a portion of Kathy Laster’s chapter on ‘Legal Reasoning’. We are providing this to give you a starting point from which you can develop your legal reasoning and problem solving skills. particularly in exams. 2001) 184–194 Reading 4. It will also help you to understand better how to ‘write up’ the information you locate when doing legal research.

you can adapt it to suit the way you do things. 5. and those of you who study LAW00520 The Philosophy of Law will become very familiar with the varied debates and strands within legal theories. Once you have mastered the HIRAC approach. the reason we require you to do problem questions is to ask you to demonstrate that you understand the issues arising from the problem. Readings 4. Indeed it is important in almost all types of legal assessments and in many types of legal work. We would encourage you to read the remainder of Laster’s chapter on ‘Legal Reasoning’ to acquaint yourself with this debate. the more accurate your result will be. Generally. google. and can apply the legal principles you have learnt in appropriate ways.4 in Reading 4. It is important that you learn a ‘good’ approach. 1 K Laster. The book is also available in full text online at <http://books. There are many approaches to legal problem solving – but there are no perfect approaches. getting an accurate result becomes the most important part of the process.1. so you already have one of the things you need for legal problem solving. and then adapt it to suit your own style.3 set out in detail a good way to approach legal problem solving. as well as a final exam. ‘Problem solving’ is the process of applying your knowledge to new and unfamiliar situations. Please attempt this activity before reading any further. You are not expected to know the ‘answer’ immediately.1 Legal scholars have rigorously debated this assumption of ‘logic and consistency’ for several centuries. 5. a a Activity 4. Of course.2. . Law as Culture (Federation Press. During your legal studies. it can be argued correctly from several different viewpoints. often there isn’t a ‘right’ answer. because law is founded upon social values and opinions.2 and 4.com/books>). Having said that.3 and 5. Developing a good legal problem solving technique is important in both types of assessment. (A number of copies of the book are available in the Southern Cross University library.1. 2nd ed. 2001) 202. the better your argument and organisation of your answer. Common sense is important in this process – the more the better! And we all have at least some common sense. you are expected to demonstrate that you can apply the process of solving the problem. Whether the result reached by any one of those approaches is ‘correct’ is generally up to a judge (who has his or her own viewpoint!). instead. Our School will also be acquainting you with aspects of this debate throughout the rest of your studies. When you are dealing with legal problems.100 LAW00051 – Legal Research and Writing law’s apparent logic and consistency’. when you start dealing with clients. how you argue and organise your answer will always be more important than your result. Discussion Activity Now put these skills into action for yourself by doing Exercises 5. Problem solving Most of your law subjects will include an assignment.1 Summarise the major skills used by ‘common lawyers’ in their legal reasoning.

Using HIRAC.3 C Enright. these are the matters you should cover when answering problem type questions. 2. round off your answer to the entire problem by making a general conclusion. 1995) Ch 34 Briefly. Studying Law (Federation Press. The problem posed will rarely raise only one legal issue. . Always make sure your answer is a direct response to the question asked – that is. and apply the law. make a diagram or a sketch to summarise the facts. You can see now why it is called ‘HIRAC’. you should: 1. Read the question again. where you are asked to give advice: • • • • • Heading Issue Rule Application Conclusion identify the major heading for this issue identify the legal issue and the facts relevant to this issue identify and describe the relevant law apply the law to the facts and argue come to and state your conclusion. to the facts. prepare your written answer for each separate legal issue. If you are not familiar with the law that is being examined by a legal problem. answer the question asked! You can deal with each mini-problem using HIRAC. To make the problem manageable to answer. At the end. Law as Culture (Federation Press. break the relevant law into its elements. and make notes. you need to break it into smaller problems or ‘mini-problems’ – that is.LAW00051 Topic 4 – Legal problem solving and law exams 101 r r Reading 4. that is. into its components.2 K Laster. Identifying the issues Identifying the legal issue(s) raised in a legal problem is the first – and perhaps the most difficult – step in legal problem solving. you have to understand it! So before you answer the problem/ question/assignment. 2001) 194–198 Reading 4. State cases for and against if necessary. It is important that you plan your written answer before you start writing – even (especially!) when you are in exams. element by element. • What is the fact situation? If appropriate. Evaluate the arguments you raise and reach a conclusion for each component. it will be difficult to identify the legal issues raised accurately and comprehensively. Read the question carefully. 2nd ed. For instance. Understanding the problem Before you can solve it. 5th ed. • What are you asked to do? • To whom are you asked to give advice? • Can you recognise any legal issues? • Do any of the facts seem particularly important or relevant or familiar? • Refer to a general or legal dictionary if there are any words or phrases you do not understand.

Thank you to Aidan Ricketts and Warwick Fisher for contributing ideas here. In your analysis you may need to apply or distinguish cases with similar facts and/or identify the relevant rules of statutory interpretation applicable to the issues raised. It is at this stage that you employ the legal reasoning discussed earlier in this topic. I – Issue Start your answer with words like: The issue here is … . 1994) Ch 22 Writing your answer using HIRAC3 H – Heading Identify the major theme as your heading. for example: Is there a valid contract? or Did the parties intend to be legally bound by their agreement? Posing the issue as a question helps you to focus on the specific question of law that needs to be addressed. eg contract law. It is important that you use common 2 We have included Keyzer’s discussion on ‘Developing a Summary’ in this reading because it provides a good explanation of how to prepare notes to take into your exams. and then state the legal issue raised. and indicate the case or legislation that is the primary source of that principle. Here you are identifying the broad area of law that is raised by the problem question (usually the subject you are studying). you apply the legal principle to the facts in the problem. r Reading 4.102 LAW00051 – Legal Research and Writing For that reason. Legal Problem Solving: A Guide for Law Students (Butterworths. State the principle clearly and concisely in your own words. eg intention to create a legally binding contract. Your analysis of the relevant law and how it applies to the facts is possibly the most crucial part of your answer. It will guide you to develop the skills necessary to be able to identify legal issues accurately and comprehensively.4 R Keyzer. You could use the following ways to describe the legal rule: The test the court would apply is … What the court would ask is … The elements of the offence are … A – Application Next is the application of the law – that is. The next reading is provided to further assist you to study and prepare thoroughly for an exam and/or other forms of assessment that include legal problem solving. It is a good idea to phrase the issue as a question. It is extremely important to develop good techniques to prepare your notes for open book exams. Review the information provided in Topic 1 about note taking after you have completed this topic. 3 . as being familiar with the legal area being examined is essential to being able to identify the legal issues. R – Rule The next part of your answer will be a statement in your own words of the legal rule or principle that applies to the situation. You will normally need to indicate the particular element within that area of law raised by the set of facts. thorough study techniques are really the first step in legal problem solving.

. 3. You could use the following ways to apply the legal rule: The legislation could be interpreted to mean … which would apply to these facts because … B would need to argue that … What B would need to show is … B can show this because … [refer to relevant facts]. but B would only be successful if she could demonstrate that … then … In the facts given. ask yourself the following questions. C – Conclusion The last part of your answer should state your conclusion. was it murder or not? Is there a legal contract or not? Remember that there are at least two sides to every legal dispute. 2. This is similar to the facts in A v B where the court concluded that …. Which is the most current law? Have you applied the law to the relevant facts given in the problem? If you’ve made some assumptions because you weren’t told all of the facts you needed to know to answer the question. you are asked to apply legal rules that talk about what ‘ordinary or reasonable people’ would do or think in the same situation. You could use the following ways to state your conclusion: It could be argued that … It is arguable … I would advise B to argue that … It would be possible to conclude that … It is unlikely that … Finally – revise your answer Once you have finished writing your answer. 1. Did you prepare a plan before you started writing your answer? Did you answer the specific question/s asked by the problem/assignment? Did you support your answer by referring to the relevant legal principles? Did you support your answer by referring to the correct and most relevant authorities (primary sources – cases and legislation)? Note: There may be case law and statute law that applies to a problem. 4. what is the result when you have applied the legal principle to the facts in the problem? For example. Often. There is not sufficient information. If so. B has …. Unless A could demonstrate that … then … A would not succeed unless … A would only succeed if … Your arguments need to be supported by relevant law and it is a good idea to briefly outline any possible counter-arguments.LAW00051 Topic 4 – Legal problem solving and law exams 103 sense to draw logical conclusions. That is. put yourself in the ‘ordinary person’s’ shoes. Your answer should weigh up both of those arguments and give your opinion (based on your earlier application of the law to the facts) as to which is stronger. 6. did you clearly state those assumptions? 5.

. You owe me $40’. agreement (genuine offer and acceptance) consideration (the price each person pays for the other’s promise). He continues to be a good brother to Dave for two weeks in a row and then he says: ‘Come on Dave. which is the broad area of law raised in the problem question in the following activity. The problem: Dave and Victor are brothers. Has Dave shown an intention to create a legal relationship between himself and Victor? Please attempt this activity before reading any further. a Activity 4. Is your written answer well constructed? • Is it logical? • Have you used plain legal language? Unless you are familiar with the area of law presented in the problem question it will be difficult to identify the legal issue and present an answer using HIRAC. I’m not going to pay you anything’.104 LAW00051 – Legal Research and Writing 7. Balfour v Balfour [1919] 2 KB 571 commercial or business agreements – there is intention so there is a contract and the innocent party could sue on the breach (broken promise) of the other party. there cannot be a contract or. Without these three elements present. to put it another way. we can say we have agreement. Dave says to Victor. 3. I was only kidding. Dave says. 2. Let’s imagine I offer to sell you my car for $2000 and you accept my offer. neither party could sue if the other broke their promise. because he would love to earn $20 per week. a Activity Now use HIRAC to answer the follow legal problem. Thus. for example. Is there consideration? Yes – I am providing a car and you are providing $2000. Victor is ecstatic. ‘Bad luck mate. ‘I’ll pay you $20 per week because you are such a good brother to me’.2 The law When you study contract law you will probably first be taught about the three essential elements of every contract: 1. But what about intention? Do you and I intend to be legally bound by our decision? The answer to that question may get down to whether you are a friend of mine or family member or whether you and I don’t know each other but you saw my advertisement in the newspaper. The law generally takes the following position in these different situations: • • social or domestic arrangements – there is no intention so there’s no contract. Wakeling v Ripley (1951) 51 SR(NSW) 183. As most of you have not studied contract law we have provided a brief outline of some of the basic elements relevant to contract law. and intention to be legally bound.

But rest assured. by predicting judicial choice in an appropriate manner. r Reading 4.4 He goes on to describe legal problem solving generally as a process of predicting ‘judicial choice’. Bear in mind. 483.5 Now. 2nd ed. ‘law problems’ of this type require you to use legal problem solving skills. Provided you have applied the legal principles appropriately. you will have plenty of opportunity to raise your critiques with us. In other words. he says: [T]he court will resort to two sources of argument. 1995) 468. particularly your law essays. Reading through worked examples will help you become familiar with the legal problemsolving model and how to structure your answers. Your answer should represent one choice that might be made by a judge who was asked to consider this problem. Legal Problem Solving: A Guide for Law Students (LexisNexis. Enright.LAW00051 Topic 4 – Legal problem solving and law exams 105 The previous activity and feedback present a very basic example of a problem question/answer to demonstrate how HIRAC works. In relation to the court’s approach to resolving ambiguity. merely persuasive arguments for and against one meaning. Studying Law (Federation Press. and your answers to them generally are not the place to discuss critiques of ‘black letter’ legal reasoning. They will not ultimately determine which meaning will or should prevail. 5th ed. However.5 P Keyzer. . Since these rules are not objective they are. The problem questions in your exams and assignments will be much more complex and will usually require you to identify a number of issues from the set of facts. your answer will be judged as ‘correct’. Consequently the court has to do this by making a choice. above n 4. There are many textbooks available that provide example problem questions and answers. precedent and policy. 4 5 C Enright. The skill of legal problem solving takes practice (and you will be getting lots of that over the next few years!). 2003) 59–63 It is worthwhile highlighting one of the comments Enright makes about the process of legal problem solving. as you should discuss this type of critique within other forms of legal writing and assessment. In making this choice it will probably be affected in some way by non-legal factors. you are indicating that you are capable of exercising the skills involved in legal problem solving. With practice you will develop the skills necessary to write answers that provide accurate legal authority and reasoned argument. that the process for problem solving that we have been discussing reflects ‘black letter’ legal reasoning. at best. The next reading is an example problem question and answer on the law of torts. There are many reasons to criticise this type of reasoning. you may have reached the opposite conclusion in your answer to the Activity question to ours (as indicated in the Feedback).

1997) 61–67 Most of your law subjects will include an exam at the end. Types of exam questions Most law exams involve two main types of questions: essay questions and problem questions. and the promises that form the agreement are supported by consideration. Don’t assume that because the exam is open-book you do not need to be thoroughly familiar with the content of the unit you are studying. Therefore developing good exam technique is important. the better. The technique for both is a bit different. provide your opinion about the question posed. Law exams tend to be open book. which means that you are allowed to take your notes and texts into the exam with you. in essay questions you should: • • construct an argument to answer the question asked. First. This could become a mnemonic this way: Contract exists when Agreement between parties who Intend to be legally bound and Consideration supports promises Now change the words as follows: Contracts Are In Course As most law exams are open book. an agreement becomes a contract if there is complete agreement between the parties. if you have prepared for the exam. We will concentrate on the technique of open book exams as our School commonly uses these. you may still be required to undertake a closed book exam. You may however forget basic things due to stress and a mnemonic can save you time from flicking through your notes. 6 See the PQRST list discussed in Topic 1. Briefly. A mnemonic is simply a memory aid. (Huseman uses a mnemonic to help you remember how to take notes). A useful one is to choose the first letters of each word and form a new word or phrase that is likely to stick in your mind. .106 LAW00051 – Legal Research and Writing Law exams r Reading Re-read Reading 1. How to Study Law (LBC Information Services. into which you are not allowed to take any of your study materials.2 – S Frazer. Some people find the use of mnemonics helpful in remembering elements of a cause of action. we must emphasise that thorough preparation is essential to good exam technique. 2nd ed. the parties intend to be legally bound. Sometimes. Often the sillier it is.6 For example. The mnemonic should be such that it springs to mind readily. you would not be looking in your notes for these things.

LAW00051 Topic 4 – Legal problem solving and law exams 107 • • support your opinion by reference to the relevant law and other relevant material covered in the unit (such as. . You will not be allowed to re-sit an exam that you have missed because you turned up at the wrong place. Do not read your notes for the first time a couple of days before the actual exam. In problem type questions – where you are asked to give advice. state the relevant law. If you do not understand these rules. try to avoid panic and any panic mongers. apply the law to the facts.scu. and answer the question asked! The skills discussed in Topics 2 and 3 in relation to essay writing and plain language obviously can be applied in an exam setting. and keep yourself as calm as possible.php/54/>. 7 See again Reading 4. on the wrong day or at the wrong time! You should also make sure you have read the rules related to special consideration. You should start practising on old exam questions as soon as possible during the session. other research data on the topic. and make sure your answer is a direct response to the question asked – that is. Make sure that you give yourself plenty of time to get there and that you have everything that you will require for the exam. Practise for the exam by working on past exam papers. journal articles. It may sound trite. Generally in law exams.edu. These rules can be found in your University Student Handbook. Exam tips To finish off this topic.au/library/index. When you go to sit for your exam.7 you should: • • • • • identify the legal issue. though the level of detail that you can write will be less as you have less time to write. These can be found at the Southern Cross University Library home page under Online Resources <http://www. it is important to start early. The readings you have already read in this topic give advice on good problem solving techniques.2 – the HIRAC approach discussed above. but make sure you know where and when your exam is being held. When you are studying for exams. you are given reading and noting time before you are permitted to begin writing your exam answers. answer the question asked! Problem type questions are the most common type used in law exams. Read the instructions on the examination sheet carefully. Make sure that your notes are complete and in good order well before the time set aside for revision. we will examine some good habits that should be part of your law exam technique. and that you know in what circumstances the rules will permit you to request a special exam. developing a good problem solving technique is important for exams. please contact us before your exam date. and to note issues as you think of them onto the exam paper. Use this time wisely to read the paper. as well as some things that you should not do in an exam. come to a conclusion. and so on if you have these types of sources in your notes in the exam). You are normally permitted to research in your materials or write on your exam paper during the reading time but are not permitted to begin writing in your answer booklet – you should not begin writing in your answer booklet until your Exam Supervisor instructs you to do so. Therefore. you will of course feel somewhat stressed. government reports. When you get to the exam centre.

6th ed. – Do not answer a problem style question in an essay style and use full sentences – don’t use point form unless you are running out of time. Ensure that you state authorities accurately and that you apply them to the facts of the problem. Plan your answer before you begin writing. to check spelling and so on. assume your exam is worth a total of 50 marks towards your final grade and you have 2 hours to complete the exam. do not repeat the question. For example. This is a waste of your time and the lecturers. Try to leave time to revise your answers. The exam has three parts: Part A is worth 25 marks. Allocate the time to correspond with the marks allocated for each question and the number of compulsory questions you are required to answer. Before you start writing. 8 R Krever.5 marks x 2 hours = ½ hour 50 marks Part C 12. Allocate your time effectively – divide the time up according to the way in which marks are allocated in the paper. If you have a choice between the questions. – Do not wander (that is stay focused on the question).5 marks each – and you must do each question. Mastering Law Studies and Law Exam Techniques. Mastering Law Studies and Law Exam Techniques (Butterworths. • • • Once you start to answer. – Keep your discussion of an issue in one place.108 LAW00051 – Legal Research and Writing Read each of the questions carefully. Always have a conclusion.5 marks x 2 hours = ½ hour 50 marks Be thorough in your arguments. and Parts B and C are worth 12. work out what time you should allocate to each question. . In his text. rather than merely reciting every possible argument no matter how fantastic. Organise your answer: Do not write out a list of every issue present in the problem – marks are also awarded for identifying the ‘real’ issues that can be argued on the facts. – Present all of your arguments fully before you state your conclusion. Similarly do not recite sections of legislation in full and do not cite legislation or cases without actually using them in your answer. You should allocate your time as follows: Part A 25 marks x 2 hours = 1 hour 50 marks Part B 12. Rick Krever offers these tips about planning your exam answer:8 • • • Prepare an answer outline. You need to explain your arguments fully – don’t presume your examiner knows what you mean. read all of them before deciding which you are going to answer. 2006) 45–56. – Use headings to help the examiner recognise the issues you have identified and discussed. and then read them again.

Write clearly and concisely. Do not cite cases without identifying the principles they stand for. they may have made a mistake or misunderstood the question. Do not rely on your friends when they tell you the ‘correct answer’. He also gives this guidance on how to deal with ‘panic attacks’ in the exam room: This is not as difficult as it may sound. Krever. that this method will not resolve the panic students feel when they have not properly prepared for the examination in the first place!! Start preparing for your exams in other units now!! 9 10 Krever. is truly difficult. the principle of the cases in a few words.LAW00051 Topic 4 – Legal problem solving and law exams 109 If you are running out of time and know you will not be able to complete the question you are attempting to answer. write an outline of your answer. regaining composure. you’ll turn to your review outline [summaries] in those areas and read the problem again. This may not be easy to accomplish … [so if] you cannot regain composure in the exam room. but about the general process that you’ll follow when reattacking the exam. Do not look for the definitive answer. ask to be excused and sit outside the exam room for a few minutes. above n 8. list all the citations). Do not rely on legalisms. Do not cite secondary sources (except in essays). Do not write sections of an Act.10 Take note though. Then. The trick is to withdraw mentally from the exam for a moment and calm yourself so that you’re ready to start again. Do not review entire areas of law. Do not ignore your spelling and grammar. 56–64. If you are doing exams with others from your course. After the examination. running down the list of issues in the outline to determine which are relevant to the problem. Do not waste your precious time writing an apology to the examiner for this. some starting point should emerge. Slot in the cases and legislation to which you would refer. Only the first step. Finally. Rick Krever offers these warnings about taking law examinations:9 • • • • • • • • • • • • • • • Do not re-write the question. do not discuss the facts of cases unless you intend to distinguish them on the facts). you’ll try to ascertain the broad areas covered in the problem. 66. Do not avoid a conclusion. above n 8. The exam is over and the only result will be to worry yourself pointlessly. Do not report a case (as a general rule. the natural thing to do is to discuss the paper afterwards. if you never left it. When you’re calm again. Do not joke (unless you are really funny – but don’t waste time trying to lighten our hearts!) Do not forget the dialectic nature of law (set out the logical arguments to support your proposition). Second time around. thinking not about the problems inside. return to the exam room or. Do not catalogue a case (that is. do not dwell on possible mistakes or go over your notes to find out what you have forgotten. Organising your time will help prevent this problem. and if possible. First. Do not cite cases without applying them. Do not use superfluous introductions. but do not dwell on it for too long. turn again to the exam problem and follow the approach you’ve just reviewed. .

the ability to interpret the facts so that a precedent applies (argue by analogy) or to interpret the facts so that they are distinct from an applicable precedent (to distinguish). this presumption may be rebutted if the circumstances show that the parties did intend to enter into a legally binding relationship: Balfour v Balfour [1919] 2 KB 571. Mastering Law Studies and Law Exam Techniques (Butterworths. Legal Technique (Federation Press. which was not intended to have any legal effect. 10 and 11 Enright. C. 6. Legal Problem Solving: A Guide for Law Students (Butterworths. the ability to classify issues accurately in order to match them to the applicable legal principle(s) definition – that is. This is backed up by the fact that Dave did not expect Victor to do anything in return for the $20. Application Here it could be argued that Dave was merely making a promise to his brother.1 Kathy Laster identifies the following skills that ‘common lawyers’ use in their legal reasoning: • • • ‘thinking like a lawyer’ – that is. How to Study Business Law: Reading. S. Writing and Exams (LexisNexis Butterworths. How to Study Law (LBC Information Services. However. Studying Law (Federation Press. C. 6th ed. 2002) Enright. the ability to apply definitions appropriately – including how to avoid the application of a definition (would you have kept Freddie caged or released him?) argue by analogy and to distinguish situations – that is. 2006) . R. Further reading Crosling. • f Feedback 4. looking at the technical legal issues involved in a problem and focusing on those categorisation – that is.110 LAW00051 – Legal Research and Writing f Feedback 4. the most likely conclusion is that Dave did not intend to create a legally binding relationship by his promise to pay Victor $20 per week. Rule The legal rule here is that it is a presumption at law that family members do not intend to enter into legally binding relationships when they make agreements together. 5th ed.2 Heading Intention to create legal relations Issue The issue here is whether Dave and Victor intended Dave’s promise to create a legally binding relationship. 2009) Chs 5. 9. 4th. 1995) Frazer. 2nd ed. 1997) Chs 6–9 (this contains practical exercises with solutions) Keyzer. Conclusion On balance. H. 2nd ed. 2003) Krever. R. G and Murphy. and that Victor merely had to be a good brother.

either if there were no legislation on the subject. for instance. The precedent or ratio decidendi is made up of three things: 111 . describe the principles of law and the reasoning used to arrive at this result. the laws are made up entirely of those laid down by the parliament. how to read a case effectively to find the precedent. Nemes and Coss’ Effective Legal Research (LexisNexis Butterworths. To do this we will look at how a case is reported. identify the parts of a reported case. how the courts use the doctrine of precedent. We will look at the legal principles that guide the way in which we understand case law. For example.Topic 5 Understanding cases What we’ll do in this topic In this topic we are introduced to one of the primary sources of our law – case law. cite case law correctly. make a determination (called the formal order) to provide a result to the dispute between the parties. as opposed to a civil law country. An introduction to case law and the doctrine of precedent As we discussed in Topic 1. While we say that the common law is the law developed through the decisions of judges. the common law exists alongside the laws made by parliament. In giving a judgment the court will do two things: one. and two. and prepare a casenote. identify the positions of courts in their hierarchy. you would resort to the Code Civile. It is this second part that we look at to determine the precedent or ratio decidendi of a case. that is the part that becomes a binding legal principle. The common law is the law as it has developed through the decisions of judges. an order for compensation. In the Australian legal system. In civil law systems. 4th ed. or to see whether the courts have interpreted the legislation. you would resort to the common law. You should note that we will be using the textbook – B Bott and R TalbotStokes. This topic is designed to reinforce your learning of these principles in Legal Process or Australian Legal System. if you were in France and had a client with a possible negligence claim. 2010) – in this topic and from now on. Australia is a common law country. or any common law country. which sets out the entirety of the law made by the French parliament. Objectives At completion of this topic you should be able to: • • • • • explain the doctrine of precedent. In Australia. We will simply refer to it as N&C. it is important to identify the part of the decision that becomes the precedent or the ratio decidendi of the case. and how to prepare a casenote (summary of a case). learn about the doctrine of precedent.

For instance. enables the courts to develop and to modify common law principles. It is frequently said that it is not for the judges to make the law and that they are simply to apply and enforce the law. a decision of the High Court of Australia is binding on all other courts. This is the information that enables the court to arrive at its legal determination. Courts have both original and appellate jurisdiction. courts of other jurisdictions will refer to them for assistance but are not bound to follow those decisions. And so the law is changed by judicial decision. the material (most significant) facts of the case. In O’Toole v Charles David (1990) 96 ALR 1 at 21. Broadly speaking. the legal reasoning used by the court (including the previous precedents and legal principles referred to by it). However. judges seek to make the law an effective instrument of doing justice according to contemporary standards in contemporary conditions. Even when an earlier decision is binding on a court. The ultimate court of appeal for both hierarchies is the High Court of Australia. everybody knows that. because those two courts are not within the same hierarchy. We will now look at some of these concepts in more depth. judges make law. the present court is said to be exercising its appellate jurisdiction. . though the differences are mostly minor. it is important that you understand the court hierarchy. These decisions become the precedents on which the courts rely when making later decisions. A decision of the Supreme Court of Western Australia is not binding upon the Supreme Court of Victoria. within their area of competence and subject to the legislation. the process of interpreting and applying older precedents through the application of the doctrine of precedent. the court hierarchy in Australia can be broken into two components: 1. The state supreme courts are on the same level. If the matter before the court is an appeal from an earlier decision of a lower court. and their decisions are described as being persuasive. Within their proper limits. that is the formal order that it makes to resolve the dispute between the parties before it. there are rules that govern the weight or authority that must be given to these decisions. This is known as the doctrine of precedent. The court hierarchy changes according to the jurisdiction. Brennan J stated that: Nowadays nobody accepts that judges simply declare the law. especially by decision of the higher appellate courts. 2. Court hierarchy As the doctrine of precedent is based on the hierarchical structure of the courts. That is.112 LAW00051 – Legal Research and Writing 1. 3. 2. the court is said to be exercising its original jurisdiction. that of the state courts (the territory courts are similar). Simply because a decision has been made on a particular matter does not mean that the decision is binding upon the courts. and the statement of the legal decision (legal principle) made by that court. and that of the federal courts. If a matter has gone before the court for the first time. as it is the final court of appeal in this country. Consideration must also be given to the hierarchy of the courts. and so to develop and expand the common law to meet the needs of our times.

You are deciding a case that involves state law. Laying Down the Law (LexisNexis Butterworths. Which decisions are you bound to follow in the following examples? You may wish to refer to Reading 5. a decision of the Court of Appeal of your jurisdiction and a decision of the Full Court of the Federal Court. even if not binding. This means that a court is bound to follow previous decisions unless they conflict with a higher court’s decisions or they are wrong in law.1 C Cook et al. the state court comes within the hierarchy of the federal court structure. a decision of the Court of Appeal of your jurisdiction in 1905 and a decision of the Court of Appeal of another jurisdiction in 1973.1 You are a judge of the Supreme Court of your jurisdiction. A court can overrule decisions of courts lower than it in the same hierarchy. a decision of the High Court in 1965 and a decision of the Court of Appeal of your jurisdiction in 1993. although these decisions will be highly persuasive in order to maintain consistency. There are two relevant conflicting decisions. A decision of a court in a different hierarchy may be of considerable weight but will not be binding. may be considered and followed. a decision of your jurisdiction’s Court of Criminal Court of Appeal and a decision of the High Court in a case dealing with the Crimes Act of another jurisdiction (assume that the provisions of the Crimes Acts are identical). You are deciding a case that involves trade marks. 2005). Any relevant decisions. • • • . Appendix 1 Rules of the doctrine of precedent Common law countries are said to follow the doctrine of stare decisis. It is said that common law countries must follow this doctrine strictly. Stare decisis is another way of describing the doctrine of precedent. a federal law. • You are deciding a case that involves state law.1 to assist you with this Activity. r Reading 5. the state courts can exercise federal jurisdiction and in these circumstances. Only the ratio decidendi of a case is binding. 6th ed. The next reading provides a very good overview of the court system together with diagrams of federal and state hierarchies. • • • a Activity 5. but generally this is not the case. There are two relevant decisions which conflict. A judge is not bound to follow decisions of a judge at the same level in the same hierarchy. You are deciding a case which involves an offence under the Crimes Act of your jurisdiction. There are two relevant conflicting decisions. There are two relevant decisions which conflict.LAW00051 Topic 5 – Understanding cases 113 In some circumstances. There are general rules that relate to the doctrine of precedent: • • • • Each court is bound by decisions of courts higher than it in the court hierarchy. The highest court can overrule its own previous decisions but only will do so in the interests of justice or where the previous decision was obviously wrong.

you must identify these three things in each individual judgment. the following approach may assist: • Read the catchwords and headnote (the summary at the beginning of a reported case) of the case. their reasons for deciding may all differ – even if they arrive at the same conclusion or result. which literally means the ‘reason for deciding’. These principles are known as the ratio decidendi. noting the decision of the court. Read the entire decision asking yourself ‘Why did they decide this way ?’ while watching out for the decision you have noted. 1. the legal reasoning used by the court. try and identify the three things that make up the ratio decidendi. 2. in publications such as the digests or in casenotes. judges simply do not tend to say ‘the ratio is … ’ or ‘my reasons are … ’. which is the conclusion reached by the majority of the judges hearing the case. that sometimes there is no or very little common ground between the judges even though they reach the same conclusion or result. as we have said. You will then know what was decided. On a more practical note. it simply takes time and practice. . • • We will look more carefully at how to locate and understand the ratio decidendi in a case later in this topic. you can often learn the ratio by reference to the particular case in either subsequent decisions which have considered it.114 LAW00051 – Legal Research and Writing Ratio decidendi and obiter dicta As we learnt earlier. Particularly with important cases. you have probably found the ratio and answered the ‘why’ question. after which is given a summary of the ratio of the case. Bear in mind though. and the way these principles have been applied to the particular facts of this case. The ratio decidendi in this situation will be the ‘common ground’ between the majority judgments – that is the common reasoning used by the most number of judges in the case. the material facts. Nor will reading their description enable you to understand the ratio of the case most effectively. We will look at locating these sources of information in the next topic. There is no one easy method to discovering the ratio and. In this situation. and the statement of the legal decision. Keep in mind. Apart from the approach mentioned above. as the publisher or editor (who prepares the headnote) may not prepare the most accurate statement of the ratio. It can be very difficult to identify the ratio decidendi of a case for a variety of reasons. not every statement by a judge or the judges in a particular case becomes binding on other courts. When you reach the statements of principles of law which support the decision you have noted. but you will be relying on the publisher or editor of that law report and not your own skill. read the whole case yourself and highlight or underline the ratio as you come to it. This is not a good habit to develop. The binding part is made up of the most important legal principles used and contained in the decision. If there are a number of judges making the decision. it is likely that no clear ratio decidendi is present. If there is more than one judge. However. You must then determine the majority judgment. that finding the ratio decidendi is a skill that you will get better at doing! (But it requires practice and lots of reading!) As you are reading the decision in a case. a word of warning: you may in fact be able to determine a simple statement of the ratio of a case by simply reading the headnote. the headnote will usually including a section beginning with the word ‘Held’. However. 3.

a decision criticised by other courts is less significant. it may however be very persuasive. The judges will then consider these decisions in light of the doctrine of precedent. It is important that you become familiar with the terminology used to describe how an earlier decision has been used. a more current decision is more significant than an old decision. The next reading from your textbook provides a list of the common abbreviations for the different methods of judicial consideration. as well as a brief explanation. and the decision may have been wrongly decided. which are relevant to the case. Application of the doctrine of precedent Now we understand what is meant by the doctrine of precedent. The judges may then do a number of things with those decisions. that is whether the cases are binding or whether the decisions are persuasive only.44] – Australian Case Citator – explanation of terms. a unanimous decision is more significant than one that contains dissenting decisions.15]–[3. although those principles are not directly relevant. the obiter may in fact have more significance in subsequent years than the ratio itself. r a Textbook N&C [8. An example where this can occur is when a superior court takes times to explain important principles of law that are incidentally raised by the court case. the more significant is the precedent. This expression means ‘a remark in passing’. how much weight should be given to the decision. including following them. Although the obiter is not binding on other courts. distinguishing or applying them. A judge may make these statements about hypothetical situations in order to clarify or explain the principles.40] Counsel representing the parties will cite various cases in support of their arguments. 2005) paras [3. r Reading 5. Business Law of Australia (LexisNexis Butterworths. a judge may make statements that are known as obiter dicta (the singular is obiter dictum). In situations such as these. how is it actually applied in court? The next reading provides a very good explanation of the doctrine of precedent and how it works. 11th ed.2 RB Vermeesch and KE Lindgren.2 What is the ratio decidendi of a case? What is obiter dicta? Are they both binding on other judges hearing cases? . The judges’ associates may also locate cases that they believe will assist the judges in reaching their decisions. The general rules that answer this question are: • • • • • the higher the court. and if so. how much weight should be given to them. Activity 5. The weight given to persuasive decisions When a judge is deciding whether to follow a decision that is persuasive but not binding.LAW00051 Topic 5 – Understanding cases 115 Apart from the ratio. one of the questions raised is.

often written by a barrister. The decisions of the courts have been reported since the 14th century in England. Understanding legislation.116 LAW00051 – Legal Research and Writing a a a Activity 5.1 Judges can interpret legislation Although parliament. which means that before the report. against which parliament is opposed. 1 Wik Peoples v State of Queensland (Pastoral leases case) (1996) 187 CLR 1.5 Are the Australian courts bound by decisions of the Privy Council? Why or why not? Legislation overrides the common law As our legal system has two sources of primary law. These were known as the nominate reports as they took the name of the person who wrote them. At this time. An example of this was the amendments made to the Native Title Act 1993 (Cth) by the Native Title Amendment Act 1999 (Cth). statute and case law. it goes to the judge for checking. Apart from the responsibility of the courts to ensure that all legislation passed by parliament is within the constitutional boundaries. . As we learnt in topic 1. Since the constitutional battles of the 17th century. By the 16th century. The resulting decisions. the courts also resolve disputes about the meaning of legislation.3 When will the High Court overrule its previous decisions? Refer to relevant cases in your answer. which had the effect of reducing the impact of the High Court’s decision in the Wik case. is published. Activity 5. while factually becoming case law. which are either produced for a particular court. Cases may be reported in different law reports. As you will have learned from Reading 5. We will be looking at this in Topic 6. You should always cite the authorised law reports in preference to other reports. Law reports Case law is recorded in texts known as law reports. some of these series of law reports are known as the authorised reports. legislation has taken precedence over cases. By the 1860s there was a formal method of law reporting in both England and Australia.2. can override the common law. This means that parliament has the option to pass legislation to overcome rules deriving from case law. true law reports began. conflict may arise between the two. or about a particular topic. are known as statutory interpretation. this does not mean that the courts are absolutely subordinate to parliament. by enacting legislation. which were not necessarily factual reports.4 What does it mean when we say that a ratio can be distinguished? Activity 5. the first law reports were the Yearbooks. the development of the doctrine of precedent was assisted by the practice of keeping and publishing official records of court proceedings.

Reported cases commonly have a headnote. ones decided by superior courts and often at appellate level. for example. such as.LAW00051 Topic 5 – Understanding cases 117 Apart from these reports. It may include a summary of the facts. as the judgments of most courts and tribunals are now available online – either through AustLII or through government or parliamentary electronic libraries.1 at [8. These report case law covering a particular topic. r Textbook N&C – Figure 8. It is important to note that the precedent value of an unreported case is not any less than a reported case. any precedents considered by the court. not the judge/s. Local Government. catchwords. The headnote is a reported summary of the case. the question of law to be decided. One of the major impacts of computerised legal research has meant increased ease in finding unreported decisions and they are cited much more frequently in the last decade. For this reason. The cases selected for inclusion in the law reports will usually be cases which clarify or settle a principle of law. 4th ed. The headnote of a case ends when the text of the judgment begins. unreported decisions must be used carefully.2] ‘A Typical Case Structure’ What you must appreciate is that not all printed versions of cases – reported or not – look the same. or perhaps create new law. or resolve a question about the meaning or effect of legislation. and if not are referred to as unreported cases. the decision is not considered by the editors to be of such significance to warrant reporting. However.2 Cases are most commonly unreported for two reasons: there simply hasn’t been time for them to be reported. the decision of the court (normally after the word ‘held’). 1996) 92–93. there may be concern about the reliability of the record of the unreported case to which you refer. a history of the litigation and the arguments of counsel or these may be separate. and you must be sure that you obtain a reliable record of the case. The headnote allows the reader to quickly understand what the case was about. if you refer to an unreported case. Intellectual Property Reports. in the main. Often we refer to the headnote of the published case. which is not part of the decision as it is prepared by the publisher of the law report. Australian Criminal Reports and Family Law Reports. which usually report case law from a particular jurisdiction. Generally. particularly to a court. cases/legislation considered and name of counsel. Cases are not always reported. there are specialist law reports. As Campbell and her co-authors state: It is important to note … that only a small proportion of judicial decisions are recorded in law reports. What cases look like Although cases are reported in a range of law reports. We will teach you how to locate reported and unreported cases later in this unit. Legal Research Materials and Methods (LBC Information Services. As noted in Topic 1. the distinction between reported and unreported cases is becoming less significant in practice. online cases (ie those located on Austlii or the various court websites) and unreported cases do no have a headnote but may include some of the features described above. 2 E Campbell et al. Environmental Reports of Australia. . as described above. or more commonly. Those cases are. the format of reported cases is much the same.

catchwords. In the authorised law reports. as well as any words or phrases whose meaning has been considered. Court. a Activity 5. This is a list of precedents considered in the decision. These words are often found before the text of the judgment and are an abbreviated form of curia advisari vult. Case list.6 Look at the case abstract below and identify the following parts: • • • • • • • • citation. Name of the case. This is a description of the nature of the litigation.118 LAW00051 – Legal Research and Writing A brief description of the parts of a case report is given below that will help you to identify the parts of the case abstract following. This is usually very brief and says something like ‘appeal allowed’ or ‘judgment for the defendant’. Cur adv vult. which means that the court took time to consider before handing down its decision. These are brief subject headings. name of the case. Decision/Formal order. Citation. volume number of the law report. This is for information only. It is in the text of the judgment that you find the ratio of the case. Name of counsel. These are seldom reported in full these days and are usually contained in the headnotes. arguments of counsel. The citation runs across the top of the page and includes the year. but more commonly there a number of judgments. the text of the judgment may contain a joint judgment. the name of the barrister who reported the case is included. the abbreviated law report name and the page number on which the case commences. Which parts are NOT included in the headnote? . how it came to this court and any findings of trial judges. Name of judge and date of hearing Catchwords. If a case is heard by more than one judge. Barrister’s name. HEADNOTE ENDS Text of the reasons for judgment. and text of judgment. precedents considered. name of judge and date of hearing. just list the first few. You should also note that the parts of a headnote will not always appear in the same order as below. This included the details of the court that has delivered the judgment. (HEADNOTE USUALLY BEGINS HERE AFTER THE CATCHWORDS) Summary of the facts History of the litigation. and will usually refer to any legislation involved in the decision. The name of the case is the names of the litigating parties. Name of solicitors. court. Arguments of counsel.

Defects arose in the equipment and P sued D alleging breaches of conditions and warranties implied by the Sale of Goods Act 1923 (NSW) and the Trade Practices Act 1974 (Cth). Observations generally on the need for clarifying legislation. and that. The defendant (D) supplied the plaintiff (P) with a computer system comprised of both hardware and software elements (the equipment). Counsel for both parties sought the determination of the Supreme court upon a matter of substance prior to the remission of the matter to the District Court. Accordingly I determine the only issue I have decided in accordance with the reasons I have given. (iii) Whilst the sale of a computer system toto is a sale of goods the question whether the sale of computer software by itself is a sale of goods remains open and debatable. the deed effected a transfer of software. J. In determining this question it was necessary to have regard to all elements including the object of the sale. gave rise to a sale of goods within the terms of the respective Acts. D relied on the distinction between agreements for sale of goods and for work to be done and materials provided. The terms of supply were governed by a deed (the deed). Sale of Goods Act 1923 (NSW). considered. Solicitors for the plaintiff: Wilmot. The exhibits may be handed out. for the defendant Rogers. The plaintiff sues three defendants. L D Seiser. In the alternative D argued that the arrangement embodied in the deed was divisible. Statement of claim In these proceedings the plaintiff sought damages for alleged breaches of the warranties implied by the Sale of Goods Act 1923 (NSW) and the Trade Practices Act 1974 (Cth). (ii) That a contract for the sale of a complete computer system embodying both hardware and software elements is a contract for the sale of goods and not a contract for the provision of skill and labour. US and Canadian authorities. in favour of the plaintiff:(i) That the contract between P and D was for the sale of a complete computer system and was not divisible into separate components for the sale of hardware and software. the nature of the material supplied. in substance. Houen & Commins . respectively. the price. the respective Acts did not apply to the arrangement. I order the third defendant to pay the plaintiff’s costs of the issue which has been argued before me. that the sale of software simpliciter is not a sale of “goods”. D argued that. and I remit the balance of the action for the District Court to proceed in accordance with the Rules of that court. P argued that the deed provided for a sale of a complete computer system and the sale of such a system. for the plaintiff G B Evans. accordingly. that P’s complaints referred only to the software element of the system. However all the plaintiff’s complaints are said to spring from one underlying set of facts.LAW00051 Topic 5 – Understanding cases 119 (1983) 1 IPR 334 TOBY CONSTRUCTIONS PRODUCTS PTY LTD v COMPUTER BAR SALES PTY LTD SUPREME COURT OF NEW SOUTH WALES – COMMON LAW DIVISION – COMMERCIAL LIST Rogers J 16 August 1983 Sale of goods – Meaning of “goods” – Whether contract for sale of computer system was for sale of goods or for supply of skill and labour – Trade Practices Act 1974 (Cth). the terms of installation and the work which the system was designed to effect. The facts appear sufficiently in the judgment hereunder. comprising hardware and software elements. Peter & Klimt Solicitors for the defendant: Patterson. Brooks Robinson Pty Ltd v Rothfield [1951] VLR 405. the vital element in the computer system and that in consequence the arrangement was one for the supply of skill and labour. Held. It alleges a variety of causes of action.

92–97 You may find the issues discussed in these readings a little difficult the first time you read them. Summarising cases: Preparing casenotes Often we need to prepare a summary of a case either for our own study or as an aide memoire of an important decision. including any dissenting judgments.3]–[5.5]. This can be useful to enable you to find the weaknesses in a precedent. you may find that the judges or editors have provided headings. as the practical application of the doctrine of precedent and the skill of locating a precedent are two things that you will get better at with time. 5th ed. reading the headnote is not enough. reading cases and understanding the ratio of cases are important skills used in law studies and all forms of legal practice. you may think reading a case is going to be a piece of cake. Laying Down the Law (LexisNexis Butterworths. and you are reading it for one point or issue only. including the arguments against the decision made by the majority judges. Most of the time that’s true. or is it to understand the entire case? When you are required to read a case.4 J Carvan. This will direct you to the part you will need to read. The discussion in Reading 5. Decisions. 2005) [5. Catriona Cook and her co-authors. Ratios and Dicta’ in A MacAdam and J Pyke. say that the first question to ask is why are you reading the case? Is it for one point or issue discussed within the case. In fact. In Reading 5.120 LAW00051 – Legal Research and Writing Reading and understanding case law As someone who is studying law. ‘Understanding Precedents: Of Facts. you should read all judgments.5 C Cook et al. In fact. Understanding the Australian Legal System (Thomson Reuters. so as to find and understand the ratio decidendi.5. which we will look at here. 2005) 85–86. However. r r a r Reading 5. If you are reading a long case. sometimes it is extremely difficult to locate the ratio decidendi of a case. you will become well acquainted with reading cases. If there is more than one judge. it is a useful tool to assist you in understanding the case. 6th ed. The following readings will give you some pointers on how to read cases more effectively. you may even want to re-read these articles at the end of the session and again later in your course.3 J Pyke. as your understanding of the common law increases. However. Discussion Activity Do the exercise described in Reading 5.2 of Donoghue v Stevenson may help you to complete the exercise. or provide . as it does not provide a comprehensive analysis and discussion of the judgement. Now that you have learned the rules of the doctrine of precedent. Judicial Reasoning and the Doctrine of Precedent in Australia (Butterworths. Reading the dissenting judgments will enable you to understand all of the reasoning used by the judges in making their decisions. 1998) Reading 5.4. Don’t be too concerned about this. There are specific details that we need to record when summarising cases. Reading 5.

You should always mark the ratio and obiter in your notes so that you do not confuse them. it is important to record the facts of the case accurately as they will assist in understanding how the case may be applied or limited as a precedent in later cases. These unanswered questions may well present an ideal exam question for your lecturer. The structure will help you to understand the case and ensure that you do not omit any vital information. Krever says that the first step is to determine the context of the decision. Therefore. That is. This is not always clear. or indeed may be something you need to undertake further research on to find whether the questions have been answered by a later court. Some issues may remain unanswered by the court (as Krever explains was the situation in Parker’s case). it may be a UK decision. keep in mind Krever’s point that the case may not answer all of the questions raised by the parties who have brought the action to court.LAW00051 Topic 5 – Understanding cases 121 points that may form an argument to distinguish this precedent in a later application of it. . Writing casenotes is a skill and a very good habit to adopt. and may also list any obiter dicta. you should only cite the majority judgment as stating a rule of law. work out who is suing (or prosecuting) whom and for what. the jurisdiction and the level of the court. 6th ed. as the order may simply say ‘order upheld’.6. Cook and her coauthors recommend that you note the page references and names of judges if there is more than one. You also have to work out who won. r Reading 5. The readings will guide you to find these things within a case. Finally. Mastering Law Studies and Law Exam Techniques (LexisNexis Butterworths. and the judge or judges responsible for the decision. You therefore have to determine this from the facts and from the description of the relief (remedy) sought. This often makes it hard to find and also means that the rule of law may be stated in different ways. For example.6 R Krever.) Keep in mind that the material (most important) facts of the case are also part of the ratio. The ruling pronounced by the judge(s) is not presented within a case in a consistent form. (You will frequently find that the headnote of a case will state the ratio of the case. 2006) Ch 3 In Reading 5. record this also. If the decision is not binding. which is persuasive only and not binding on Australian courts. The ratio is sometimes hard to find and often judges considering the case in another later decision identify it. The following table indicates how you should write your casenotes (sometimes referred to as case analysis or case comment). Be sure to distinguish between majority and dissenting judgments in your notes. You should also record all the relevant technical details.

but unauthorised. Tas – Tas R. If you are preparing a casenote as part of your research it is appropriate to provide all parallel citations. and NT – NTR The authorised English reports are AC. WA – WAR. Reported cases When citing a case. plaintiff. ACT – ACTR. or whoever you are conducting the research for. those that are legally relevant) • the procedural history of the case (ie did this case begin in a lower court. Qld – Qd R. The authorised reports for the Australian courts are: • • • High Court – Commonwealth Law Reports (CLR) or ALJR (if no CLR reference) Federal Court – Federal Court Reports (FCR) Authorised reports for the state and territory supreme courts are: NSW – NSWLR. is it on appeal or is this a first instance case?) • the basis of claim or the grounds for appeal (ie the issues to be decided) • a summary of the court’s analysis (outline how the court reached its decision) • the court’s Decision. Ensure that you follow this format in your assignment • • In the next activity you will prepare a casenote. • the court (include here the name(s) of the judge(s) who decided the case and the date of the judgment) • a brief statement of the material facts (that is. • . Style Guide Primary Sources – Cases – 15–16.122 LAW00051 – Legal Research and Writing The casenote A detailed analysis of the case (a casenote) should be structured using the following headings: the case name and citation (cite the authorised report and include parallel citations) the parties (provide the names of all parties and indicate whether they are the applicant. WLR. report series. All ER is another useful. can locate the case without further research. QB. This ensures that you. Make sure you attempt this activity before looking at the example casenote provided in the feedback.5. appellant etc. Vic – VR.7 Do the activity on page 69 of Reading 5. you should always cite the authorised law reports in preference to other reports. Ch. SA – SASR. a r Activity 5. AGLC Chap 2. respondent. • the order(s) made by the court. Citation of case law The citation of cases follows certain conventional lines. defendant.

and given you some guidance on how to locate the ratio decidendi in a decision. In deciding the case that involves trade marks.LAW00051 Topic 5 – Understanding cases 123 As you read further you will note that the convention is that the abbreviation ‘p’ is not put before the page number at which the report starts.1]. volume one of 1988 p 685. Victorian Law reports. Edelsten versus John Fairfax and sons Limited. a Activity 5. you must follow the decision of the Full Court of the Federal Court. New South Wales Law Reports. In deciding the case which involves an offence under the Crimes Act of your jurisdiction. how to understand cases with the doctrine of precedent. in regard to referencing a quote from a judgment. f Feedback 5. in the case of the crown versus Jungala and Jagamara. . a federal law. An unreported judgment given by Foster J of the Northern Territory Supreme Court on 25 July 1979. the binding decision is the decision of the Court of Appeal of your jurisdiction. we have looked at how cases are reported and what they look like. Brinkibon Limited v. 62 Pay particular attention to the guidelines given in the Style Guide and AGLC [2.1 As a judge of the Supreme Court of your jurisdiction. p 648.6. the 1905 decision. Unreported decision by Mr Justice Thomas in Nguyen and Nguyen on 2/11/89. Stahag 1983 Appeal Cases p 34. that is. However according to the Style Guide and AGLC the page number should simply follow a comma –For example: Steadman v Steadman [1974] 3 WLR 56. Sanders against Curnan. You have also been shown how to prepare a casenote. The word ‘at’ is often placed before the page number. In deciding the case that involves state law. the binding decision is the decision of the High Court in 1965. What information would you need to know about both cases to determine whether case B can change the precedent set in case A? Summary In this topic. a Revision activity Assume that you have located a case (case B) that judicially considers an earlier authority (case A). 1965. you must follow the decision of the High Court (assuming that the provisions of the Crimes Acts are identical).8 Write the correct citations for the following: • • • • • • CCOM Proprietary Limited versus Jeijing Intellectual Property reports 1994 page 481 on page 488 in volume 28. you must follow these decisions: • • • • In deciding the case that involves state law. decided in the Queensland Supreme court.

This was extended to the state courts by the enactment of the Australia Act 1986 (Cth). or different enough. subject to the operation of the rules of the doctrine of precedent. No later decisions conflicted with the earlier decision. whether that decision was unanimous. we can validly say that the ratio of case A is not a binding ratio in case B. If they are very different.2. the High Court has no longer been bound to follow the decisions of the Privy Council: Viro v R (1978) 52 ALJR 418. listed the following criteria they considered: • • • • • • • The earlier decision had been delivered by a full bench. legal reasoning and the statement of legal principle made by the court. (See Reading 5. See also para [3. This is because the ratio in case A deals with a situation that is different from case B. Elaborately reasoned judgments had been given. Vermeesch. . then we can distinguish the ratio in case A. The principle stated by the court is then applied to the facts before it.2 The ratio decidendi is literally the reason for deciding the case. Although the obiter can be persuasive. it is not binding on other judges. No decision or principle had been overlooked. The issue had been fully argued. It is made up of the material facts.4 Generally. We then compare those facts to the most important (or material) facts in case B. Feedback 5. the High Court. The decision could not be said to be manifestly wrong.35–3. In John v FCT (1989) 166 CLR 417 and Street v Queensland Bar Association (1989) 168 CLR 416. deciding not to overrule a previous decision. f Feedback 5.2. The issues and arguments put to the court in the present case were the same as those in the previous case. and therefore does not create a precedent that explains and provides the solution to the legal position in case B.124 LAW00051 – Legal Research and Writing f f Feedback 5. to arrive at the conclusion – or legal result – of the case between the parties. The obiter dicta are statements of law used in a case to illustrate or clarify the principles applied. the High court examined further criteria: • • • • • consideration of the inconvenience caused by the earlier decision. The ratio decidendi may form a precedent that is binding on courts later in time. [3.3 In Queensland v Commonwealth (1977) 139 CLR 585. The process of distinguishing involves looking carefully at the material facts that form part of the ratio in case A.5 Since the enactment of the Privy Council (Limitation of Appeals) Act 1968 (Cth) and the Privy Council (Appeals from the High Court) Act 1975 (Cth).35] in Reading 5. the time that had elapsed since the earlier decision. we talk about distinguishing the ratio of a case (let’s call it case A) when we are asked to consider whether that case creates a binding precedent that must be applied to a new set of facts being considered by a court later in time (let’s call that case B). and whether that decision reflected a principle established in a significant stream of earlier decisions. In other words.37]) f Feedback 5. whether majority judgments differed in their reasoning.

an Aboriginal person. This extract has been edited. so you would find several pages of the judgment in the original report. had been driving a motor vehicle without being the holder of a motor licence. Procedural history A complaint was laid in the Court of Petty Sessions that the appellant had driven a motor vehicle without being the holder of a driving licence. • The text of the judgment begins after the judge’s name: Rogers J. Burt CJ Date of judgment 15. . comprising hardware and software elements. Common Law Division.7 Citation Hart v Rankin [1979] WAR 144 Parties Hart – Appellant Rankin – Respondent Court Supreme Court of Western Australia. Arguments of counsel: the plaintiff’s counsel argued that the deed provided for a sale of a complete computer system and the sale of such a system. Commercial List Judge and date of hearing was before Rogers J on 16 August 1983. and that the arrangement was one for the supply of skill and labour or alternatively that the arrangement was divisible. the vital element in the computer system. gave rise to a sale of goods within the terms of the respective Acts. It includes all of the text from ‘The plaintiff sues … ’ through to ‘The exhibits may be handed out’. the motor vehicle was being towed and the appellant was sitting in the car steering it. f Feedback 5. and as P’s complaints referred only to the software and that the sale of software simpliciter is not a sale of ‘goods’.6 The parts of the case abstract are as follows: • Citation is (1983) 1 IPR 334 The full citation of the case is Toby Constructions Products Pty Ltd v Computer Bar Sales Pty Ltd (1983) 1 IPR 334 • • • • • • Name of the case: Toby Constructions Products Pty Ltd v Computer Bar Sales Pty Ltd Court was the Supreme Court of New South Wales. Precedents considered were Robinson Pty Ltd v Rothfield [1951] VLR 405 and some US and Canadian authorities. 30 September 1977 Brief statement of material facts The appellant. The defendant’s counsel argued that the deed effected a transfer of software. and therefore the Acts did not apply. etc The headnote ends at the beginning of the Rogers J’s judgment. Catchwords are Sale of goods – Meaning of ‘goods’. pursuant to s 49(1) of the Road Traffic Act 1974 (WA). On the third occasion.LAW00051 Topic 5 – Understanding cases 125 f Feedback 5.

The Justices should not have accepted his plea of guilty as they did not satisfy themselves he understood the nature of the charge. The sentence passed on each conviction was excessive and should not have been made cumulative. Grounds for appeal 1. despite the fact that it was being towed at the time. R v Jungala and Jagamara (Supreme Court (NT). He was sentenced to twelve months imprisonment on each of the three charges. Thomas J). 3. The term ‘drive’ is not defined by the Act. 488. Order made by the court Appeals allowed in part. 488. as required by s 49 Aboriginal Affairs Planning Authority Act 1972 (WA). the appellant was the driver of the car as he was in control of it. Summary of court’s analysis 1. Decision 1. The court held the conviction was not excessive as the appellant had been charged on nine previous occasions for the same offence. As a result. 4. Sanders v Curnan [1965] VLR 648. 2. 4. Brinkibon Ltd v Stahag [1983] AC 34. they in fact happened on a particular day and the following morning. The appellant was driving the motor vehicle. That what the appellant was driving was not a ‘motor vehicle’. not counting stops and starts. 2.8 The correct citations are: • • • • • • • CCOM Pty Ltd v Jeijing (1994) 28 Intellectual Property Reports 481. 2 November 1989. 2. (The name of the judge is not required but can be included. Convictions should not be cumulative as although the events happened on three separate occasions. The car was a ‘motor vehicle’ as defined by s 5(1). Nguyen v Nguyen (Supreme Court (Qld).126 LAW00051 – Legal Research and Writing The appellant pleaded guilty and was convicted. f Feedback 5. The sentences were not excessive but should be served concurrently. 3. 3. Appeal without substance. to be served cumulatively. or CCOM Pty Ltd v Jeijing (1994) 28 IPR 481. Foster J) . 25 July 1979. The car was a motor vehicle. The court did not accept that the appellant was incapable of understanding the plea of guilty. This case stated that there were many ways in which to control a car. 4. A number of cases were considered by the court and the case R v MacDonagh [1974] QB 448 was applied.) Edelsten v John Fairfax and Sons Ltd [1988] 1 NSWLR 685. That the appellant did not ‘drive’ the motor vehicle. but the term ‘driver’ is defined in s 5(1).

2009) Heilbronn. Introducing the Law (CCH Australia Ltd. 6th ed. can any distinction be made between the two cases – that is. 2009) Chs 3. R and Nettheim. E. 2nd ed. 7th ed. courts in different jurisdictions. H. The court in case B can overrule. Connecting with law (Oxford University Press. C. 2009) Chs 4 and 5 Ellis. Writing and Exams (LexisNexis Butterworths. or not follow or refuse to apply case A only if any of these situations apply. M et al. What was the legal issue decided in case A? Is it different or similar to the situation in case B? If they are very similar. G. J. 5 and 6 Crosling. the decisions made by lower courts. can case A be distinguished and therefore not applied to case B? • Further reading Carvan. 2010) Ch 5 Chisholm. G et al. G and Murphy. 2008) Ch 4 Sanson. or courts at the same level in the hierarchy. 2010) Ch 10 . et al. Understanding the Australian Legal System (Thomson Reuters. Understanding Law (LexisNexis Butterworths. 7th ed. not follow or refuse to apply. 2nd ed. Principles and practice of Australian law (Thomson Reuters. • In which court and in which jurisdiction was case A decided? Refer to the court hierarchy – courts can only overrule. How to Study Business Law: Reading. Laying Down the Law (LexisNexis Butterworths. 4th. 2007) Ch 4 Cook. 4. 7th ed.LAW00051 Topic 5 – Understanding cases 127 f Feedback to revision activity You need to know the following things about both cases to determine whether the precedent in case A (the earlier case) can be affected by case B.

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1 The words ‘statute’ and ‘Act’ mean the same thing and can be used interchangeably. Legislation can be divided into two components – statute law and delegated legislation. including the use of intrinsic and extrinsic materials to assist the process of statutory interpretation. Statute law is the law as laid down by an Act of Parliament. We will look briefly at these rules. Legislation. It is also important that we have a basic understanding of the rules of statutory interpretation. the administrative arm of government and the courts – and by those who must comply with the law. Legislation (or statutes or Acts1) is law created by parliament. We will discuss delegated legislation later in this topic. In most jurisdictions. the people. delegated legislation is printed in much the same way as statute law. or subordinate legislation. A number of rules and guidelines exist to assist the courts and the Commonwealth and state parliaments have passed interpretation legislation to assist in this area. We will look at how an Act is made and the different types of Acts. on the other hand is a wider term because it also covers delegated (or subordinate) legislation. Again. and cite legislation and extrinsic materials. 129 . this topic is designed to reinforce your learning of these principles in Legal Process or Australian Legal System. Parliament does not always simply make laws that are clear and obvious in how they operate. refers to the laws made by those to whom parliament has delegated law-making authority. Those laws must be understood by those who enforce the laws – that is. identify how extrinsic materials can be used to interpret legislation. the courts will try whenever possible to give the words or provisions of an Act their ordinary meaning.Topic 6 Understanding legislation What we’ll do in this topic This topic looks at the other component of the primary sources of law – legislation. outline the basic rules and presumptions of statutory interpretation. explain the difference between intrinsic and extrinsic materials. Objectives At the completion of this topic you should be able to: • • • • • explain the steps leading to the passing and development of legislation. Delegated legislation. One of the major functions of the courts is to interpret legislation and generally speaking.

How legislation is made and changed You will need a basic understanding of the legislative process.130 LAW00051 – Legal Research and Writing An introduction to legislation First we need a basic idea of what an Act is and of the words used to describe the legislation as well as a rough idea of what an Act looks like. a consolidation.14].3 Using a legal dictionary. Activity 6.11–7. r a a a a a r Textbook N&C paras [7. [7. write a description in your own words for ‘delegated legislation’. For example. Textbook N&C – revise [7.4 Again.11–7. find the difference between a ‘Consolidating Act’ and a ‘code’.1–7.1 In your own words.14] Acts/Statutes. Activity 6.56] Delegated Legislation Activity 6. You may also wish to refer to your Legal Process or Australian Legal System text. using a dictionary. and by the minister whose department will be responsible for administering the law. the proposed law. and an amending Act. [7.5 Using a legal dictionary. write a description of the following: • • • • a reprinted Act. Bills can also be introduced by private members.2] Introduction/Bills. usually the lower house.2]. find out what ‘extrinsic materials’ are used for. is drafted and introduced into the House of Parliament.2 What is the difference between a consolidated Act (ie a consolidation of principal Acts relating to one topic) and a reprinted Act? Activity 6. a principal Act. Activity 6. A private member’s Bill will normally involve issues that do not have the support of the government. Following is a quick overview. in Northern Territory a private member’s Bill introduced the Euthanasia Laws Bill. . [7.1–7.56] Briefly. [7. Most bills are introduced by the government. In New South Wales private members have introduced Bills to prevent such things as adults smoking in cars. which is called a bill.

by commercial legal publishers and government printers. it is placed on the table – and will be read a first time. There are a number of different terms used. it must also commence. however. The wording and the title of Acts may change through amendments over the course of years. The Bill is then read a second time. have been proclaimed. and the minister who introduced the Bill will deliver a second reading speech.6 Describe the three reading stages and the Committee stage of a new Bill. . be in effect. which will be followed by parliamentary debate. to describe the commencement of an Act. and are commonly designated as commencement on the date of assent or on a day or days to be proclaimed. This reading is merely a formality. The Act then remains in force until it is repealed. a Activity 6. it is sent to the Governor-General or Governor for signature. Note that the divisions of an Act are called sections. This signature is the assent to the Bill. the Bill is immediately sent to a Committee for review. and at that time it becomes law.LAW00051 Topic 6 – Understanding legislation 131 Most bills these days are accompanied by an explanatory memorandum. it can be amended and subsequently reprinted to incorporate the amendments into the principal Act. If the upper house does not pass the Bill. In some parliaments. again a formality. usually 28 days after assent. This can be very confusing for researchers! The Act is said to: • • • • have commenced. which explains in simple terms the meaning of the clauses of the Bill. Once the house agrees to the second reading. The Bill then passes to the other house (usually the upper house) which follows the same procedure. The information concerning amendments is contained in the ‘Notes’ section of Acts. An Act is repealed when Parliament passes a second Act that specifically states that the first Act no longer has legal operation. an Act of Parliament. At any time before an Act is repealed (if it ever is). Once the Bill has passed both houses. which will also be debated. the minister will ask for a third reading. If there is no provision for commencement of an Act. The Bill is tabled – that is. while in others. it is returned to the lower house with suggested amendments. the interpretation Act [an Act which is designed to help us understand or interpret other Act] for that jurisdiction will make provision for its commencement. but the divisions of a Bill are called clauses. For the Act to have effect. time is given for the members of Parliament to read the Bill. or be operational. The commencement provisions are usually contained in s 2 of the Act.

. headings – these may be given to sections.7 On the next page. short title. not all Acts include a preamble. and the headings for s 2 and Part I. An extract of an Act is provided at [7. parts or divisions of the Act.20] of N&C. Refer back to Activity Questions 6. table of contents.1–6.5 and review your answers. long title. a Activity 6. reprint number and/or date – if the copy is a reprint. is an extract of the Acts Interpretation Act 1901 (Cth). preamble – this states the reasons for the enactment of the Act. parts. The structural parts of an Act are the: • • • • • • • • • • number – an Act may be identified by its number or by its short title. divisions and headings – lengthy Acts may be divided into parts. sections – these are the most common divisions of an Act and may be further divided into subsections. date – this is usually the date that the Act received assent. divisions and subdivisions. long title – this states the purpose of the Act. then the date up to which amendments are included is given. Identify the following parts: • • • • • reprint number and date. short title – the title normally used when referring to the Act. What legislation looks like The structure of an Act follows a traditional pattern. which has these parts identified.132 LAW00051 – Legal Research and Writing Types of legislation Earlier in this topic we asked you to write a description of the different types of legislation in your own words. paragraphs and subparagraphs. and schedules – these contain appendices to the Act.

you should include the complete citation. (1) In every Act. 3 ACTS INTERPRETATION ACT 1901 Reprinted as at 31 January 1990 TABLE OF PROVISIONS Section PART 1 – PRELIMINARY 1. . For example: Acts Interpretation Act 1901 (Cth). … Citation of legislation r Textbook AGLC [3.44]–[2. included in brackets after the name and year and is not in italics. PART II – COMMENCEMENT OF ACTS Meaning of “commencement” 3. Short title 2. you can refer to it by its short title. Style Guide Primary Sources – Statutes. as above. including this Act. If in doubt – include it. for example: the Acts Interpretation Act. in relation to an Act or provisions of an Act means the time at which the Act or provision comes into operation. or any instrument (including any rules regulations or by-laws) made granted or issued under a power conferred by an Act. The Act may be cited as the Acts Interpretation Act 1901. The first time you refer to a piece of legislation in the text of your work. Meaning of “commencement” 4. Exercise of certain powers between passing and commencing of Act … ACTS INTERPRETATION ACT 1901 ------------------An Act for the Interpretation of Acts of Parliament and for Shortening their Language PART I – PRELIMINARY Short title 1. You will note that the jurisdiction of the legislation is abbreviated.1]–[3. it shall come into operation immediately on the expiration of the last preceding day. this Act applies to all Acts.47] According to the Style Guide and AGLC. although for sake of completeness it is good practice to include it.5]. (1) Except so far as the contrary intention appears. (2) Where an Act. After that.LAW00051 Topic 6 – Understanding legislation 133 REPRINT No. the name and the year of the Act is written in italics. Application of Act 2. N&C [2. “commencement”. Application of Act PART 2 – COMMENCEMENT OF ACTS 3. (2) This Act shall bind the Crown. It is acceptable to omit the jurisdiction when citing an Act in that jurisdiction. is expressed to come into operation on a particular day (whether the expression “come into operation” or “commence” is used).

order. Commonwealth Affirmative action (equal employment opportunity for women) statute. 29 and 30. The basic unit of an Act is a section. For example: Acts Interpretation Act 1901 (Cth). and the abbreviations are listed below: part/s division/s section/sections subsection/subsections paragraph/s subparagraph/s schedule/s regulation/s rule/s clause/s subclause/s pt/pts div/divs s/ss subs/subss para/paras subpara/subparas sch/schs reg/regs r/rr cl/cls subcl/subcls Note that there is a space between the abbreviation used and the number following it. However abbreviations should not be used at the beginning of sentences. which may be further divided into Divisions. which assist us to refer more easily to specific portions. Delegated legislation takes effect usually when it is gazetted – that is. ordinances. This responsibility is delegated by Parliament and the delegated legislation usually relates to the practical administration of the Acts of Parliament. proclamations and notices. Generally. it is published in the Government Gazette. For example: Section 3(1) of the Acts Interpretation Act explains the meaning of ‘commencement’. The NSW legislation called ‘Child Welfare Act’. Sections are broken down into subsections. then paragraphs and subparagraphs. Delegated legislation Delegated or subordinate legislation is the responsibility of the administrative arm of government. ss 15AA and 15AB. Delegated legislation can take the form of regulations. passed in 1939.134 LAW00051 – Legal Research and Writing Acts are divided into various parts. . a Activity 6. community services (Aborigines) statute. which may be made up of subclauses. sections 28. they are divided into Parts. Delegated legislation is usually referred to as rules or regulations. but should be written in full. by-laws. rules. This is the part to which we most commonly refer. The parts of an Act can be abbreviated when citing that Act.8 Write the correct citations for the following: • • • • The 1987 New South Wales Water Supply Authorities Act sec 6. passed in 1984 by the Queensland parliament. and the basic unit of delegated legislation is described as a clause.

LAW00051 Topic 6 – Understanding legislation 135

Some forms of delegated legislation must be tabled in Parliament, and will not take effect if Parliament disallows them, or in some cases, unless Parliament formally allows them. This procedure can be quite confusing, and even the Federal Parliament has been known to get it wrong on more than one occasion! It is important to note that delegated legislation usually appears under the name of the parent Act. The parent Act will contain enabling provisions which confer the power to make the delegated legislation. For example, in New South Wales, regulations concerning licence fees in respect of routes over which regular air transport services can operate are prescribed in the Air Transport Regulation 2000 (NSW). The parent Act for these regulations is the Air Transport Act 1964 (NSW) and in section 13 you will find the enabling provision. The most common procedure for finding delegated legislation is to locate the name of the parent Act, and once you have found the parent Act, the annotators (which we will discuss later) or other full text legislation databases (eg LawOne and LawNow) will provide you with a list of the subordinate legislation.

Legislation overrides the common law
As noted in Topic 5, conflict can arise between the common law and legislation. In this case, legislation overrides the common law, as Parliament has the power to pass legislation that overrides a decision of the courts, even of the High Court. The courts can only address the issues that arise in our society when those issues are presented in court. Parliament, on the other hand, can see that there is an immediate need to address a new issue that has arisen and can pass a law accordingly.

Judges can interpret legislation
However, the doctrine of parliamentary supremacy does not mean that the courts are absolutely subordinate to parliament. Apart from the responsibility of the courts to ensure that all legislation passed by parliament is within the constitutional boundaries, the courts also resolve disputes about the meaning of legislation. This is known as statutory interpretation, which we will look at next.

The rules of statutory interpretation
Statutory interpretation is a fundamental aspect of your law studies and should be mastered early. The following is a very brief overview of some of the rules and guidelines. As mentioned earlier, this topic is designed to reinforce your learning of these principles in Legal Process or Australian Legal System, which are the units specifically designed to teach you about legislation and statutory interpretation.

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Reading 6.1
G Heilbronn, ‘The role of the Courts in Law Making’ in G Heilbronn et al, Introducing the Law (7th ed, 2008) 148–177

Some of the basic principles that a court will have regard to when interpreting an Act are:

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• •

• •

The Act is to be read as a whole. Words are presumed to be used consistently throughout the Act. That is, where the same word appears in different places within an Act, the same meaning for the word is intended. Words are given their current meaning. Regardless of when an Act was passed, the words in that Act are given the meaning of today. Technical words should be given their technical meaning.

Apart from these there are a number of presumptions, both syntactical (that is, grammatical) and regarding the intent of parliament. Being presumptions, they can of course be rebutted (or argued against). The syntactical presumptions are: • ejusdem generis (of the same kind or nature). This presumption states that when there are two or more specific words followed by general words, the general words are restricted to the class of the specific words. noscitur a sociis is also known as ‘words of a feather flock together’. More simply, words take their meaning from words with which they are associated. expressio unis est exclusio alterius means that the express reference to one matter indicates that other matters are excluded. generalia specialibus non derogant is in part a contradiction to the previous presumption. It states that later general provisions do not derogate from earlier specific provisions. Later laws do not impliedly repeal earlier laws. Parliament is presumed not to legislate extra-territorially (that is, is presumed not to apply its laws outside of its jurisdiction). Parliament is presumed not to alter common law principles nor invade common law rights. Legislation is presumed not to bind the Crown. Legislation is presumed not to operate retrospectively. Legislation imposing a penalty is to be strictly construed in favour of the accused. Property rights are not to be taken away without compensation.

• • •

Some of the presumptions concerning parliament’s intent are: • • • • • • •

Apart from these basic rules and presumptions, the courts had three main approaches which they used to interpret statutes. These were: • The Literal Rule was also known as the plain meaning rule. In a nutshell, the rule states that words of an Act must be given their ordinary meaning, even though the result may be ridiculous. The Golden Rule is a more commonsense approach, in which the grammatical and ordinary sense of the words was adhered to, unless it led to some absurdity, repugnance or inconsistency with the rest of that instrument. The Mischief Rule’s approach is to find the wrong that Parliament tried to correct by the Act and interpret the Act accordingly.

These days statutory interpretation is governed by the various interpretations Acts for each jurisdictions. In 1981 the Commonwealth Parliament enacted a new section in the Acts Interpretation Act 1981 (Cth):

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Section 15AA In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

The states subsequently enacted similar provisions in their Interpretation Acts. Apart from looking at the purpose of the Act, the courts may have regard to both intrinsic and extrinsic materials. Intrinsic materials are materials within the Act in question. Extrinsic materials are those outside the Act.

Intrinsic materials
The common law allows the use of intrinsic materials of an Act to assist in its interpretation. These materials include the long title, preamble, any statement of objects clause, the division of the Act into Parts and Divisions, and the headings and schedules to the Act. This is reinforced by ss 13(1) and (2) of the Acts Interpretation Ac (Cth)t. Section 13(3) of the Act provides that the courts can not use the marginal notes, footnotes, endnotes or headings to sections as an intrinsic aid to interpretation as these are deemed not to form part of the Act.

Extrinsic materials
Extrinsic materials are, generally, statutory materials that are external to the Act in question but which can provide assistance in understanding the Act in question. Most of the extrinsic materials that can be used to aid in the interpretation of legislation are set out in the Acts Interpretation Act (Cth). Section 15AB lists some of the extrinsic materials that can be used to interpret an Act. However, you should note that the court is not limited to those materials set out in the Act. Note that s 15AB(2)(a) also includes as ‘extrinsic’ materials some things that are printed in the Act, but which are not regarded as forming part of the Act. Subsection 15AB(2) lists the following extrinsic materials: (a) matters not forming part of the Act but that are in the text of the Act as printed (as s 13(3) above) (b) reports of Commissions of Inquiry, Royal Commissions or Law Reform Commissions often will reveal the background of an Act and its purpose (c) reports of parliamentary committees (d) any treaties or other international agreements referred to in the Act which may explain the basis of the Act (e) any explanatory memoranda accompanying the Bill (f) the Parliamentary Debates or Hansards, which can be used to discover the ordinary meaning of the Act, its historical development or to discover what mischief the Act was intended to remedy (g) any document which the Act declares to be relevant, and (h) any relevant materials from either House of Parliament.

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You should also note that s 15AB(1) limits the use of these materials to two areas: 1. They can be used to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, taking into account its context in the Act and the purpose or object underlying the Act. They can be used to determine the meaning of a provision when that provision is ambiguous or obscure or that the ordinary meaning will lead to a result that is manifestly absurd or is unreasonable.

2.

Apart from the materials specifically mentioned in the Acts Interpretation Act, other materials that can assist in understanding the Act include the following: • • Repealed statutes and/or provisions which contain similar or identical terms can be used to interpret the Act in question. Acts in pari materia are Acts which deal with the same subject matter as the Act in question. For example some provisions in the Competition and Consumer Act 2010 (Cth) (formerly the Trade Practices Act 1974 (Cth)) are mirrored in the States’ Fair Trading Acts, and these Acts can be referred to when problems in interpretation arise. Acts that form part of a legislative scheme can be used to interpret other acts in that scheme. For example, there are a number of Acts which form part of the legislative scheme for taxation. Subsequent amending Acts can be used to clear up doubts about the original Act. Delegated legislation can also be used to explain the meaning of a provision.

• •

Reading legislation

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Reading 6.2
C Enright, Studying Law (5th ed, 1995) Ch 31

It is important to be able to read legislation effectively, in order to apply the rules of statutory interpretation correctly. You will encounter many different pieces of legislation throughout your studies, and often will look only at portions of the Act at a time. Bear in mind that no section of an Act can be given its proper meaning if it is read in isolation. You must read each section of an Act in the context of the entire Act, and particularly in the context of any definitions of words and phrases provided within the Act itself. You may wish to try your hand at a general interpretation question. One is reproduced for you as your next reading.

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Reading 6.3
SA Frazer, How to Study Law (1997) 89–90, 104–108

Summary
In this topic, we have learned about the process by which legislation is made and amended, and what legislation looks like. We have also introduced you to the rules of statutory interpretation and the way to read legislation effectively.

1 A reprinted Act is the official edited version of a principal Act. regulations. A code is a type of legislation. First. Feedback 6. f f Feedback 6. a consolidation of principal Acts is the republishing of all principal Acts on a particular topic or area of law. into one statute.14]. which contains the effect of all amendments to that Act since it was first passed or previously amended. like any other piece of legislation. and includes all relevant amendments made to that principal Act. A reprint relates to one principal Act only.4 According to the Butterworths Concise Australian Legal Dictionary.2 There are two main differences between consolidated Acts and reprints.3 The Butterworths Concise Australian Legal Dictionary defines a ‘code’ as: Legislation purporting to exhaustively cover a complete system of law (for example the Code of Justinian) or a particular area of law as it existed at the time the code was enacted. When the full text legislation databases update legislation to take into account recent amendments – the updated legislation is an unofficial consolidated version of the statute or regulation. f Feedback 6. . a reprint is undertaken by the government printer is not an official version of the principal Act. See N&C [7. to produce an exhaustive statement of the entire law on a particular topic – restated in legislative form. ordinances. (NOTE Since 2009 authorised versions of consolidations (sometimes called compilations) can be printed from the Parliamentary Counsel websites). It codifies the common law and existing legislation by incorporating them into one document. A principal Act is the main Act standing alone. The Act states the date up to which amendments are included. and orders-in-council are delegated legislation and have the force of the empowering statute. there is usually no reason to refer to the legal principles – whether in the previous common law or in legislation – to determine the law on that topic. (NT) Criminal Code. However. a court may interpret a code. An amending Act is one that amends or alters one or more principal Acts.13]–[7. A consolidation can be one of two things: 1. However. in a particular jurisdiction. by-laws. (WA) Criminal Code. without any amending Acts. and is different to a consolidating Act because it brings together all of the existing law on a topic or area of law.LAW00051 Topic 6 – Understanding legislation 139 f Feedback 6. Secondly a consolidation must be passed through parliament before it commences legal operation. ‘delegated legislation’ is: Legislation made by an administrator in the exercise of a power conferred by statute. a consolidation involves combining the information (including all relevant amendments) from several principal Acts that relate to the same topic. Rules. Once a code is enacted. for example (QLD) Criminal Code. including the common law principles. 2.

Legislation and Statutory Interpretation (LexisNexis Butterworths. H. C et al. 2009) Ellis. The second reading stage is the one in which the relevant minister will give a speech outlining the background and purpose of the bill. Introducing the Law (CCH Australia Ltd. 2009) Hall. Principles and practice of Australian law (Thomson Reuters.8 The correct citations are: Water Supply Authorities Act 1987 (NSW) s 6 Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth) ss 28. 2009) Chs 7–10 Crosling. it is ‘Preliminary’. 7th ed. 2007) Chs 5–7 Cook. 2008) Chs 2–5. Kath and Macken Claire. and which is followed by a debate of the Bill. 2nd ed. The methods are described in paras [7. The heading for s 2 is ‘Application of Act’ and for Part I. G and Murphy.6 The first reading stage is a mere formality where only the title of the Bill is read.7 The relevant parts of the Act are: • • • • • Reprint No 3 as at 31 January 1990. The third reading is usually a mere formality. Headed ‘Table of Provision’. R and Nettheim. How to Study Business Law : Reading. Such material includes explanatory memoranda. 7th ed. Laying Down the Law (LexisNexis Butterworths. although debate may occur. f f f f Feedback 6. . Butterworths Guides. reports of law reform commissions and parliamentary committees and second reading speeches. Feedback 6. Understanding Law (LexisNexis Butterworths. G and others.64] of your N&C text.57] – [7.5 According to the Butterworths Concise Australian Legal Dictionary ‘extrinsic materials’ are: Material not forming part of an Act which may assist in the interpretation of that Act. 7th ed. Feedback 6. We encourage you to read through this material as it is essential to your research skills that you can locate delegated legislation effectively. The Committee stage occurs where the house decides that the bill should be examined in detail by a Committee. The short title is the Acts Interpretation Act 1901. Feedback 6. 4th ed. E. 29 and 30 Child Welfare Act 1939 (NSW) Community Services (Aborigines) Act 1984 (Qld) Further reading Chisholm.140 LAW00051 – Legal Research and Writing The method for locating delegated legislation is not markedly different to that used to locate legislation and has been made very simply on full text legislation databases like LawOne and LawNow. G. Writing and Exams (LexisNexis Butterworths. 2nd ed. 2002) Heilbronn. The long title is ‘An Act for the Interpretation of Acts of Parliament and for shortening their Language’.

2nd ed. M et al. D C and Geddes.LAW00051 Topic 6 – Understanding legislation 141 Pearce. Statutory Interpretation in Australia (LexisNexis Butterworths 6th ed. Connecting with law (Oxford University Press. 2010) Ch 11 . 2006). Sanson. R S.

142 LAW00051 – Legal Research and Writing .

you may be required to do it as part of your legal studies. As a result. These are the things that we hope to impart in this unit. we will provide you with information about the techniques used to do ‘manual’ legal research – that is. including postgraduate studies. Unfortunately you can’t just go to a book and find the law. The purpose for which the research is being undertaken is important. using hard copy texts and other materials – as well as teach you the techniques used to undertake computer assisted legal research. be able to plan your research and to define keywords to assist you in your research. these systems are not yet at the point of perfection. making the retrieval of legal information far more efficient and easy. be familiar with a general method to undertake legal research. as it will define what types of resources the researcher will need – or want – to locate. and sometimes more! But there are shortcuts and there are tools to make sure that you find things quickly and effectively. and the way it is stored is rather unique. and know which legal research tools to use for particular research purposes. You usually need to go to about 20 books. Although a great deal of legal information is being stored by means of computerised storage systems. As you progress through your law studies. we will focus on particular skills involved in doing legal research. Let’s start by looking at what legal research is. understand how the specific purpose of a research project influences the resources used for that research. 143 .Topic 7 Methods of legal research What we’ll do in this topic The reasons for doing legal research can be quite varied. Legal research may be undertaken to prepare a case for litigation. Objectives Upon completion of this topic. and how to start doing it. it will become apparent that law is a discipline where research skills are essential because the content of the law can change so rapidly. or it may be undertaken by a Law Reform Commission in order to propose changes to the law. In this unit. so we still have to be aware of the ‘old’ ways of doing it. you should: • • • • • be able to explain the purpose of legal research.

to enable you to develop the ability to undertake work that critically evaluates the legal materials that you locate and read.2 As Hutchinson puts it: Theoretical [jurisprudential] research examines the philosophies underlying law and the legal system.144 LAW00051 – Legal Research and Writing What is legal research? r a a a a Reading 7. including the skills of social scientists.4 Why should there be a set of ethical guidelines to regulate the legal research method? In this reading. 2nd ed. The skills that we are teaching you tend to be used in most academic legal research.3 What this means. 1 2 3 Refer to the quote from Terry Hutchinson under the Heading ‘Effective reading’ in Topic 1of the LAW00051 Study Guide. 2006) 21. is that once found. Activity 7. legal information can be critiqued (evaluated) by using a particular theoretical method (jurisprudence or perspective) as your means of understanding the information. and economic analysis of the theory of law itself and frequently it uses theory as a springboard to critique existing law. it is essential to introduce you to the broader approach to legal research methods. We do not have the opportunity within this unit to teach this range of other research skills. 2006) 5–26.1 Describe the features of doctrinal legal research method. Instead. and are fundamental skills that you need to develop for both your law studies and your future work as a legal professional. Researching and Writing in Law (Thomson LawBook Co. T Hutchinson. which are increasingly used within legal research methods. feminism. criminological theory. 2nd ed. Jurisprudence refers to the theory of or study of law. and indeed on a limited range of skills. critical legal studies. that may be used to undertake a legal research project.2 What criticisms are made of the doctrinal legal research method? Activity 7. including questions of justice. broadly. natural law. you will be expected to critically evaluate law in your essays. Hutchinson talks about the method of legal research. rather than merely the skills involved.1 As we discussed in Topic 3. Activity 7. . However. our aim is to teach you the basic skills necessary to enable you to locate legal information.1 T Hutchinson. Researching and Writing in Law (Thomson LawBook Co. you must understand the link between legal research and legal theory (jurisprudence). legal reform and practice. this unit focuses on the skills.3 Is the doctrinal legal research method the prevailing paradigm of Australian legal research? Activity 7. liberalism. However. To do so effectively.

r a a Textbook N&C [3. as your lecturers will ask you – often! – to critically evaluate the legal information that you locate and read. We do so because the skills used in the doctrinal method are transferable to all other research methods. cases and legislation. The skills of legal research The next reading from your textbook provides an interesting introduction to legal research and outlines the steps in the legal research process.1]–[3. and discuss how law could be revised to better reflect the needs and values of women. As a result you will find that we focus on the doctrinal method of legal research. Activity 7. So we will return to our focus – the skills involved in legal research. for example. As we noted in Topic 1. 2008) for a discussion for the range of many of the theoretical perspectives used in contemporary legal research methods. we do not have the opportunity in this unit to better explore the link between legal research and theory in more detail. included within the sources of law) can vary according to the theoretical or jurisprudential view used to understand law. 3rd ed. But as we said. you are asked to use non-doctrinal methods of legal research if you study in the units LAW00048 Legal Project or LAW00524 Independent Legal Research.5 Describe legal research in your own words. consider that the meaning of law can be found (generally) by reference to the primary sources of law. on the other hand. Positivist jurists (who tend to use the doctrinal method). consider the meaning of the law to be found in a range of texts well beyond the primary and traditional sources of law.4 This can be contrasted to the doctrinal method that would read the information located as neutral (that is. such as critical legal studies theorists (who use one of the forms of theoretical method). by uncovering the features of law that privilege or favour men’s needs over those of women. You will have ample opportunity to develop theoretical research methods within your studies.1 Activity 7.LAW00051 Topic 7 – Methods of legal research 145 For instance. Theoretical method also has impact on the type of information that may be located and used within a legal research project. Asking the law question (Thomson Legal & Regulatory. feminist theorists would critique legal information to identify the ‘gendered’ values and features of law. free of any ‘gendered’ values) and objectively written. what is included in the meaning of law (and therefore. Using a theoretical or jurisprudential perspective will greatly influence the range of materials at which we look to discover the meaning of law. Critical jurists.8] and Figure 3. and would focus on ‘what law is’ rather than what law ‘could’ or ‘should’ be.6 What is an ‘authority’? 4 See generally. and other ‘traditional’ legal materials. . In particular. M Davies.

7 List the secrets you need to know to make your research valuable. the purpose is to collect all of the relevant primary source authorities on a particular topic. Activity 7. Now let’s turn to why we are doing legal research. how to update information. As we discussed above. Activity 7. the purpose of our legal research project will also influence the sources of law to which we refer. as well as the secondary sources that assist our understanding of those authorities. This topic will focus on the first of these two skills. and what we need to look for. we’ll start to develop a plan or approach to achieve our research project. the method you use to undertake legal research will get better as you do more of it. Like the other skills you will learn in this unit. or which may effect the operation of a piece of legislation. and because of the specific purpose of our research. That is. . where to look. how to use research tools. and your ability to use these skills will get better as you practise them and as you progress through your course.9 Why do you need to develop good legal research skills? As pointed out in N&C at paragraph [3. what we use to do this will vary both because of our theoretical perspective. In addition. when researching for a client. We will provide you with a general approach that will help you start any research project.8 Describe the difference between primary and secondary sources in your own words. For instance. Then. In many cases – and the one on which we will focus – the essential objective of legal research is to discover the current law applying to a particular issue and any other material which may be used to expand or to restrict the operation of a precedent. and we will develop the other skills in later topics. This unit will teach you about all of these skills. you would tend to look at a far narrower range of materials (using a doctrinal method) than you would to undertake a feminist analysis of the law of homicide (using a theoretical method).4].146 LAW00051 – Legal Research and Writing a a a Activity 7. The purpose of legal research The purpose of legal research is to discover the relevant sources necessary to find and to understand the meaning of law. and how to put your research to use. it is essential that a legal researcher knows: • • • • • what to look for.

you may need to refer to sources that describe medical information. or . digests of law which catalogue comments about the common law. sociology. current awareness services which help to keep us up to date with the latest legal developments. it is important to be innovative and to locate non-legal information to assist legal research. As an example. but we do so to distinguish between the ‘traditional’ sources of law and other types of information. politics. The common law is generally published in the form of law reports. looseleaf services which provide detailed commentary about the practise of a particular area of law. For many reasons. legal periodicals (journals) that include articles about a variety of legal subjects. or statistics. history. annotators that collate information about legislation. legal textbooks. anthropology. and how they can assist you both to understand and to locate law described in primary sources.LAW00051 Topic 7 – Methods of legal research 147 What are you looking for? In this section. For instance. and legislation is published in statute books. which assists us to understand legislation. They are the authoritative statements of the law. Our focus in this unit is learning to locate legal information. You will learn specifically how to locate the common law in Topics 11 and 12. Non-legal information r Textbook N&C [3. Secondary sources In Topics 9 and 10. Legal information Primary sources The primary sources of law are the common law and legislation. particularly when using theoretical research methods. medical information could be used: • • to determine whether a client has a valid complaint in the law of negligence for a medical procedure. citators which provide important information about cases. we will discuss in detail the secondary sources of law. and government publications such as Hansard (which records the proceedings of Parliament). or to determine what amount of compensation a client is entitled to following an accident. and law reform commission reports and royal commission reports which comment on the law and evaluate and make recommendations regarding its reform. Both are now available electronically. Some of the most useful are: • • • • • • • • • legal encyclopaedias. we will briefly describe the type of legal and non-legal information that you may use to undertake research.18] It seems a bit rude to categorise something as ‘not’ legal.

1. Before you do anything else.9]–[3. or more likely. and recently started working for a centre for the elderly. the purpose will have a big impact on what type of information and resources that you need to locate. let’s work through the following problem together. the first thing you need to determine is the purpose of your research project. such as general encyclopaedias. has advised John that his employment contract will not be renewed. and they live together in a small country town in New South Wales. the purpose of a research project can be varied. to plan the research needed to answer the question it poses.11 Re-read the information provided above which sets out the problem brought to us by our client John. these sources are discussed briefly at the end of Topic 9.15] Activity 7. Can John complain about his treatment? We will return to this problem as we learn each step in the planning process. that will help you to develop good research skills. because it will help to ensure that you undertake your research in a more efficient and effective way. However. however. who holds deep religious beliefs. We will not be looking in detail at how to locate non-legal information in this unit. Activity To illustrate the steps involved in planning a research project. However. you may look at secondary or second hand data. it is important to sit down and plan how you will approach your research. Why is careful planning of a research project important? Like most things. research is something you should plan. textbooks. reports and journal articles. Where do I start? Prepare a plan for your research r a a Textbook N&C [3. John comes to you for advice. John is a registered nurse. Since starting.148 LAW00051 – Legal Research and Writing • to assess whether drug laws should be amended to decriminalise the use of certain drugs within society. one of John and Samantha’s neighbours told the director of the centre that the two were living together out of wedlock.10 Summarise the points the authors give by way of experienced advice. Be clear about the purpose To begin your research plan. he has been very popular with the residents. As we have already discussed above. The director. like interviews. For what purpose has John asked us to undertake legal research for him? . surveys and questionnaires. John and Samantha are in a de facto relationship. a Activity 7. This will save you time later. This information can include primary or first hand data.

Instead. but you will also have to sift through non-legal information provided by a range of people and agencies – something requiring good planning indeed. and then return to the facts and information again. you need to identify the client’s legal problem. r Textbook N&C [3. 3. and then return to the facts and information again. and so on. Be clear about the parameters of your research project – your purpose will help you to define these parameters. you will need to find out not only what the law is.12 How will this affect: • • the type of information that you need to locate? the type of resources that you will need to locate? Activity 7. To answer the question posed. but also who is involved in administering it. instead of providing legal advice. few of the problems you’ll have to research are presented in a nice package. you will need to uncover not only a range of legal information. give you a barrage of factual information. your ability to do this will be greater if you are familiar with the area of law raised by the research project. Alternatively. and ask you to give them legal advice. To do this. . to properly identify the relevant facts and information. In this instance. therefore. a client may visit your office. and sorting them into order. you were asked to prepare an essay that critically analysed the rights of employers to integrate their religious beliefs into their employment strategies? 2. you may need to do preliminary research on the topic. what do experts relevant to the subject area think about this law. Indeed.21] 3. you may need to do preliminary research on the topic. Similarly. Sort the facts and information into a coherent order – your ability to do this will be greater if you are familiar with the area of law raised by the research project. To do so.LAW00051 Topic 7 – Methods of legal research 149 a a Activity 7. What’s the problem? The next step is to determine exactly what it is that you need to research – in other words. By unravelling them. you may be asked to examine critically how well an area of law is functioning. and (subject to our level of legal knowledge) try to describe the legal problem raised by that information. Many looseleaf services such as CCH provide sample sheets to guide you when interviewing clients to help you establish the facts and information that are relevant to particular types of legal problems. to give accurate legal advice. the facts given to you by the client are your starting point.19]–[3. to properly identify the relevant legal issues raised by the problem. Understand the problem To understand the problem.13 How would your answer to the previous question differ if. 2. we need to look closely at the facts and other information that we have been given about the problem. While the other issues raised by your client aren’t irrelevant. to finding the answer to their question. they will give the key to commencing your research and. what’s the problem? Unfortunately. Identify the legal issues raised by the problem – as for the last point. you need to identify the following information and issues: 1. what experiences people in the community have had with that law.

14 What are the parameters of John’s research project? Activity 7. the two methods outlined in the next reading from the textbook are very helpful. . Keywords will be used to help you locate information in books and also on computers. you would identify through your preliminary research). Defining keywords Particularly. and/or looseleaf services for this purpose. Your ability to do this will increase as you learn more during your course. you may need to do some preliminary reading (or preliminary research) before you can determine the legal issues that arise in your topic. Activity 7. a a a Activity 7. You should refer to textbooks. as now. Remember to include keywords from the legal issues that you defined using the suggestions in point 3 above. If you are not sure of the legal area. you will not always know the legal area of your research topic. • the relevant legal principle in that general law (for instance with John. to ensure that you locate as much of the relevant information as you can.16 Identify the legal issues raised by John’s case. We usually describe these as ‘keywords’.150 LAW00051 – Legal Research and Writing 4. which Parliament has legal authority over the area – for John. You may surprise yourself! As you can see. if not. unfair dismissal). There is no one way to identify keywords. your chances of finding something will be greatly increased. Identify keywords to describe the problem – there is a range of different ways to do this and we will look at two ways in a moment. Let’s look at some ways of defining keywords.24]. You will need to complete this textbook reading before attempting the next two activities. To do so. Don’t worry if you are not sure – try from your own general knowledge and see how you go. The types of legal issues that you need to identify include: • the general area of law (for instance with John. employment law or industrial relations).15 Sort the important facts and information about John’s case into a workable order. 4. it is likely to be a NSW or federal matter). r Textbook N&C [3. and • the jurisdiction (that is. However. If you define these words broadly. including the jurisdiction. However.22]–[3. you will need to define some keywords about the subject. who lives in NSW. legal encyclopaedias. you need some way of describing your topic to help you locate information relevant to it. if you do not know much about the law on a particular topic. so you know what to look up in these general texts. this process assumes you have a working knowledge and good understanding of the relevant legal area. The trick is to try and identify as broad a range of keywords as possible. • the names of any case law or legislation which may be relevant (which you may know if you are familiar with the area of law.

Where should I look first? r Textbook N&C [3. . particularly if you are not familiar with the area of law that you are researching. as it is for texts on other subjects. Major word – discrimination 1. 3. 7. 2.17 Use SHARP to identify some keywords for John’s problem: Subject and situation: Harm suffered: Actors involved: Remedy or relief sought: Policy considerations: Activity 7. 6. use of the cartwheel method can produce many terms to assist in your research. It is important to note that devising keywords carefully is even more important in computerised legal research and we will return to this process again in the next topic.18 Complete a cartwheel for John’s problem. 5. whether you are undertaking manual or computerised legal research. usually by lateral thinking. General legal references – that is.25]–[3. These general references will give you a broad overview of the legal area. Those of you who enjoy completing crossword puzzles have experience in thinking of alternate terms for given words and you may prefer to use your own methods. don’t forget that the library catalogue is just as useful for locating legal texts. Some people seem to have a natural ability to think of many different ways of saying the same thing.LAW00051 Topic 7 – Methods of legal research 151 a a Activity 7.31] Once you have planned your research. and will identify important common law authorities as well as relevant legislation. textbooks and loose-leaf services – are always a good starting point. and the actual problem and the issues involved. Keep in mind that it may be necessary to do some preliminary reading or preliminary research to assist you to understand the problem better and to define the legal issues. A dictionary and/or a thesaurus are both useful tools to assist you to think of appropriate keywords. 4. legal encyclopaedias. depends on a number of things: • • • the purpose for which the research is undertaken. As you can see. Also. where you go to look for relevant information. Broader terms Narrower terms Synonyms Antonyms Words closely related to the major word Think of any long shots that may relate to the major word Procedural terms related to the major word Identify persons or organisations related to the major word. 8.

As noted above.19 John. You will remember this principle from Topic 5. Read through that table and get a sense of what tasks secondary sources can help you to achieve in your research. like the common law. As the methods differ in the way that they access the information. this may also be a preliminary stage to identifying the most relevant law in the form of a common law precedent or legislation.152 LAW00051 – Legal Research and Writing Manual versus computerised methods Methods of legal research differ considerably depending on whether you are undertaking manual research of hard copy materials. and then proceed to other secondary sources that provide more detailed information on the topic. Finding case law: The doctrine of precedent Sometimes in legal research you are either aware of a prominent common law authority on your topic. You also need to be aware of how legislation is changed to understand how to locate the most up to date statement of the legal principles in that legislation. or you uncover one through your preliminary reading. a Activity 7. a Activity At the end of this topic you will find a table indicating the most suitable secondary sources for particular research tasks. as a researcher you need to be familiar with the rules of statutory interpretation to understand what information you need to locate to understand the meaning of that legislation. thorough legal research will. often you already know or become aware of the legislation that is relevant to your research. Furthermore. Note that computerised legal research does not replace manual legal research. although as the range of online services increases. Finding information for general legal problems Often you are presented with a legal problem that is general in nature. at times. such as legal periodicals (journals). or whether you are using computerised research methods.3] of your text. is asking us to give him legal advice. Instead. Bear in mind the warning from N&C. as researchers. To ensure that you develop the most effective legal research skills. The doctrine of precedent determines how cases ‘fit together’ to describe a legal principle. it complements manual research. our client. It is important. you must learn both manual and computerised research techniques. which is set out in para [1. the use of manual research is declining. Even so. or which relates to a topic about which you know little. The doctrine also determines how case law can be changed by later cases. the type of information you need to locate is also general in nature. one method will at times be more suitable as a starting point than the other. that we understand the rules of this doctrine because it will help us to identify later cases that we should look at when we are researching the common law. In this case. or government reports. You will remember this discussion from Topic 6. Finding legislation: The rules of statutory interpretation Just as with the common law. Use the general legal texts described above as a starting point. mean performing both manual and computerised research. What sources of information do we need to locate to enable us to advise John? .

To avoid these problems: Always double check your research in another reliable source. In addition (and in summary) we would add the following hints that will help you to document your research as you are doing it. two things are essential: 1. Put these skills into action in your own study. you have updated your research as currently as is physically possible. although of a very high standard.32]–[3. and you have checked your research in more than one reliable research tool. The research tools that we discuss in this unit. 2.36] Activity Summarise the main points discussed by the authors.37]–[3. It is never sufficient to say that you hope you have the right answer or even that you are pretty sure you have the right answer. Be organised The next reading from your N&C textbook outlines some strategies for being organised in your research. Take note also of the points made by Hutchinson in Reading 7. not your second-best. They may also reflect the understanding and interests of the editorial staff. Your client deserves your best effort. in relation to ‘Recording the Research Process’. Put these skills into action in your own study. may contain errors or omissions.39] Activity Summarise the main points discussed by the authors. It is important to understand that out of date information is dangerous.LAW00051 Topic 7 – Methods of legal research 153 Develop good research habits A golden rule: Be thorough! When undertaking legal research. the most important requirement is that of thoroughness. Document your research Textbook N&C [3.1 (at [1.8] on pp 23–26 of her text. . To be thorough in your research. so it is essential that your research is up to date. r a r a Textbook N&C [3.

This will help to shape the way you read and understand the information in order to determine it’s meaning. Generally this requires you to collate the information you have located in terms of its application by means of the doctrine of precedent. 6. and counter those effectively. you need to sort through the information you have located on legislation. more often than not. In other words. Know when to stop r a Textbook N&C [3. you need to sift through the case authorities you have located. and to use it to solve or answer your original problem. Put these skills into action in your own study! Putting it altogether Once you’ve found all of the information relevant to your research topic. 2. This will make the final analysis of your research results an easier process. assume that at any stage you may be required to provide a progress report of your research. as analysis will raise further points of research which can be pursued as they arise. This approach may save time. Similarly.40]–[3. Use a separate sheet of paper for each piece of information because: • it is simple to add or delete information • it is simple to reorganise the information at a later date. Write down the full citation/reference including page number as you read. and the rules of statutory interpretation. Accuracy is essential for citation. Make sufficient notes to provide you with an accurate recollection of what’s said. Keep in mind your ultimate goal and try to tie the information together as you go. you will never find the right page again!!!! Make note of the full citation of any other authorities or legislation cited. Write a brief – but accurate – summary of what is stated. This is because you need to be aware of the flaws and weaknesses in your argument. and so on.154 LAW00051 – Legal Research and Writing Some hints to help you document your research 1.41] Activity Summarise the main points discussed by the authors. in order to present a strong legal case. 3. stating a legal principle. and use it with reference to the rules of statutory interpretation. you need to gather the information together. For instance. In putting together your results you should also take into account the jurisprudential theory or perspective that you may wish to bring into an essay. using quotations. as well as that which supports your argument. 4. Your skill in doing so will be developed in other units in your course. as well as the way you structure the argument in your essay. prepare a brief outline of the information you have obtained so far. . Good research results incorporate both the material that contradicts your argument. determine their relevance and importance according to the doctrine of precedent. 5. If you don’t. and then use them to determine the most current statement of the relevant legal principle. to determine the meaning of that legislation.

To find cases by name Consult the following: • • • • citators and law reports indexes digests encyclopaedias looseleaf services. To find legislation and updating information Consult the following: • • • • legislation subject indexes annotators digests looseleaf services. much like the one we have been discussing throughout this Topic. Table of secondary sources for specific research tasks To find a general discussion of a topic Consult the following: • • • texts looseleaf services legal encyclopaedias. To find government information Consult the following: • • • • government websites journal indexes digests library catalogue. . To find casenotes and articles about cases Consult the following: • • • digests citators journal indexes. This requires you to ‘solve’ the legal problem. Review the discussion in Topic 4 on legal problem solving. To find statute notes and articles about statutes Consult the following: • • • annotators digests journal indexes. is to a problem.LAW00051 Topic 7 – Methods of legal research 155 A common way that you will be asked to apply the results of your legal research. To find cases interpreting legislation Consult the following: • • • annotators citators and digests law reports indexes.

a a Online activity Visit the Southern Cross University Library homepage at <http://www. By following the steps outlined in this topic. prepare a plan to undertake legal research on this question. a f f Activity In the Workbook (available in Unit Documents in MySCU) choose one of the research questions outlined in the exercises for Topic 7. legal texts.php/>. but will point out that they are reflected in the theoretical or jurisprudential approaches to legal research and writing that Hutchinson notes are continuing to develop (p 8). and you have had a reference referred to you by the federal Attorney General. It does not matter which question you choose. You are not required to undertake any research to do this activity. using the information given.2 There is a broad range of criticisms to be made of the doctrinal method. and a prevalent view of law as objective and neutral. Feedback 7. This guide provides information about a range of legal databases and website and some very helpful advice on which tools you should use for specific research tasks. Use the answers to the Activity questions in this topic as a guide. particularly appeal cases. prepared by the law librarian. Feedback 7. She also points to the method’s emphasis (also described as ‘privileging’) of legal texts: ‘law reports. Follow the plan set out in this topic. In other words. but choose something you are interested in as we will be asking you to use this question as the basis of your activities in the remaining topics. . The liberal and positivist philosophies illustrated in the previous answer are a significant feature of these criticisms. such as parliamentary debates and government publications generally’ (p 20).scu. the assumption that law is ‘neutral’ and can achieve ‘objective’ decision-making is questionable. and ‘being “what is” rather than what “could be” or “should be”’ (p 10). We will not be able to explore in detail the full range of these criticisms. and the use of cloning procedures to manipulate the genes of both animals and humans.1 Hutchinson states that doctrinal legal research method ‘has tended to be … based on the tracing of common law precedent and legislative interpretation and change’ (p 10). You are employed at the Australian Law Reform Commission (nice job!). Download and/or print the Guide to Online Legal Research Publication. legislation.edu.156 LAW00051 – Legal Research and Writing Now might be a good time to access the Guide to Online Legal Research Publications. Revision activity Devise a research plan for the following topic. and the plethora of other traditional sources. Select Subject Guides and then Law & Justice. You will this guide in later topics and to complete your research assignment. You will need to look outside of Australia’s laws to report on this matter. You should merely describe your plan to do this research. The reference requires you to investigate and report on the laws related to controlling genetic engineering. The method features an underlying philosophy of liberalism.au/ library/index. Enter the Law subject guide and click on the Further resources tab.

as its greatest proponent – the judicial system – moderates its own approach to finding law (pp 8–9): A conservative approach treating law as a closed logical system. Feedback 7.LAW00051 Topic 7 – Methods of legal research 157 f Feedback 7. However. gradually changed to the current approach that includes considerations of public policy. as well as enabling you to learn about areas of law that you did not study during your time at Southern Cross University.1] of N&C. Similarly.nhmrc. good legal research skills will ensure that you can always keep your legal knowledge up to date. justice and equity (pp 14–15).4 Ethics are an important feature of research as they ensure that researchers undertake their research projects in an appropriate manner so that the information they produce is not plagiarised or fabricated. In addition. . legal research skills are necessary for all types of legal work. the dominant legal paradigm is changing.9 As the authors of N&C indicate. the case of Mabo v Queensland (No 2) (1992) 175 CLR 1 is authority for the legal principle that Australian territory was not acquired under the doctrine of terra nullius. when the research project involves people and animals – ‘research subjects’ – ethical guidelines are important to ensure the research is undertaken in a way that does not impinge on the rights of these people.3 Who can say? A great deal of legal research remains open to criticism as remaining doctrinal in approach. In Topic 2. she points to the emerging importance of foreign precedent and international laws in the development of Australian law. In addition. Feedback 7. For instance.1.4] of N&C. where the correct answer was available to be ‘found’ via a process of induction or deduction. and pointed out that stiff penalties apply if you do.au/ publications/synopses/r39syn. The Australian Code of Conduct for the Responsible Conduct of Research has now replaced the ‘Joint NHMRC/AV-CC Statement and Guidelines on Research Practice’ mentioned on page 23 of Reading 7. This new code provides guidelines for institutions and researchers on responsible research practices. The code is available at <http://www. Feedback 7. public interest. we discussed how important it is that you do not plagiarise work in your legal research (legal studies).htm>. s 51(xxix) of the Constitution 1901 (Cth) is authority for the power of the Commonwealth Parliament to make laws about external affairs.5 Compare your answer with the information in para [3.8 Compare your answer with the information given in Topic 1.6 The term ‘authority’ is used to describe primary source material that establishes or states a legal principle or rule.7 Compare your answer with the information in para [3. as Hutchison points out.gov. Feedback 7. f Feedback 7. and thereby failing to critically evaluate law. So whatever field you enter with your legal training. f f f f f Feedback 7.

14]–[1. but also the cases (common law) which has interpreted this legislation. . we will use a range of legal sources. We will require relevant primary materials – most likely legislation. He probably wants to get his job back or to be compensated for losing it. your purpose would be different. Feedback 7.15 Sorting out the facts: • • • • John is a qualified registered nurse. in that it would require you to look beyond the specific legal issues (or ‘black letter’ legal issues) raised by the subject. as that primary source material describes the current legal situation that is the substance of what your essay will critically analyse.11 and 7. to find out what type of legal action he can take. Feedback 7.10 Careful planning is important in every research project.12. This is because it will: • • • Ensure that you use your time effectively and efficiently. and to assist to interpret (understand) them. As we are looking for primary source legal information. it may be necessary to locate some non-legal information to verify that the religious beliefs that have influenced the employer’s behaviour are consistent with the employer’s faith.11 John probably feels that he has been unfairly treated by his employer. However.158 LAW00051 – Legal Research and Writing f f f Feedback 7. and how to do that. This will add specificity and depth to your final product. He has come to you to ask for legal advice about his problem. or you may interview people to gauge opinions from relevant experts and other people involved in the subject area. Ensure that you obtain all of the necessary and relevant information required for your project. and there appear to be no complaints about his work performance. Ensure that you finish your project within time.15] of N&C). As a result you would need to locate a broader range of information and so use a broader range of resources. This is in addition to the primary source material described in Topic 1 & (and see [1. • f f f Feedback 7. reports that have investigated the issues.13 If you were asked to write an essay critically analysing this subject. He is in a de facto relationship – this describes his marital status or domestic status. This could include journal articles – whether legal or non-legal – which discuss the issues raised by the subject. Feedback 7. as religious issues are raised in the problem. John is employed as a nurse by the centre. Feedback 7. He is popular with the residents.14 See Feedback 7. We will probably use secondary legal sources for two specific uses only: to locate the primary sources. We are unlikely to want to locate any non-legal information.12 As John is seeking legal advice: • We will concentrate on locating primary source legal information to find the appropriate legal principle that a court or tribunal would apply to resolve John’s dispute with his employer.

f Feedback 7. unfair dismissal Actors involved: employer.17 Using the SHARP method: Subject and situation: employment. Human Rights and Equal Opportunity Commission. work contracts Harm suffered: marital status discrimination. Relevant Act in NSW: Industrial Relations Act 1996 (NSW). difference. unfair treatment. so able to come up with this information very easily. Discrimination laws: discrimination on the ground of marital status or domestic status. some or none of the above suggestions. equality Think of any long shots that may relate to the major word – ripped off. ss 6. dismissal from employment.18 Using the cartwheel method: Major word – discrimination 1. Don’t worry if you didn’t think of much – we are acquainted with the law relevant to this area. industrial action Policy considerations: workplace legislation. unjust or unreasonable dismissal on the basis of discrimination. Relevant Acts in NSW: Anti-Discrimination Act 1977 (NSW).16 John’s case could be relevant to two main areas of law: 1. equal opportunity. equity Words closely related to the major word – equal opportunity. If you did some preliminary reading about ‘discrimination’ or ‘industrial’ laws. affirmative action. damages. Broader terms – prejudice. 7. 8. 2. Antonyms – fair. 4. as there is both industrial and anti discrimination legislation which may apply to John. employee. discrimination. f Feedback 7. You may have been able to identify all. reinstatement. Industrial laws: unfair. 14 and 16 2. equality. f Feedback 7. Also Commonwealth Act: Sex Discrimination Act 1984 (Cth). The jurisdiction is NSW as John lives in NSW. 6. industrial dispute Identify persons or organisations related to the major word -Anti Discrimination Board (NSW). federal laws may also be relevant. 3. Sex Discrimination Commissioner. However. Equal Opportunity Tribunal (NSW). John lives and works in New South Wales. 5.LAW00051 Topic 7 – Methods of legal research 159 • • He is advised by the director that his contract will not be renewed after the director learns John is in a de facto relationship. employee. contract employees covered. nurse Remedy or relief sought: discrimination complaint. you would be able to identify most of this information as well. in employment. centre for elderly (give specific name). sacked for wrong reasons Procedural terms related to the major word – complaint. . ss 83–90B Also Commonwealth Act: Workplace Relations Act 1996 (Cth) Pt 12 Div 4. unfair treatment Narrower terms – bias Synonyms – distinction. ss 39. 40 and 42.

about genetic engineering and cloning procedures. it may be necessary to do some preliminary reading and research to understand the legal issues raised by John’s case. The federal government also needs advice about how effectively these laws are working to control genetic engineering and cloning procedures. encyclopaedia or looseleaf service. Many other secondary sources will also be useful. The parameters of the project Given the purpose of this project. and devise proposals to improve these laws where they are lacking. and will learn how to use them. Annotators will assist us to locate information about legislation. and citators and digests can assist us to locate the cases that interpret that legislation. To do so. The following answer is suggested as a good model. and the relevant primary sources from other countries. you may have devised a slightly different plan that is equally as good. and to do so you would concentrate on locating primary sources of law: statutes and cases. The point is that there are some basic steps that you should have covered in preparing your plan. for instance – would be useful to assist you to locate the appropriate legal information in an encyclopaedia.16. newspaper and other media reports. we would have found that the most relevant legislation is that set out in Feedback 7. don’t be too concerned if you didn’t think of all of these. we would also need to identify relevant treaties. f Feedback 7. Once located. Purpose of the legal research project You are undertaking research in order to provide advice to the federal government so that it can assess the current law. we would turn to a textbook. As already noted. and locate information about ‘employment’. you can see that some of these words – like equal opportunity. As a hint. we would need to find cases that have interpreted the meaning of that legislation. we can focus next on locating that legislation.19 As we need to give John legal advice.160 LAW00051 – Legal Research and Writing Again. and journal articles (both legal and scientific). . Doing so. The federal government needs to be advised on the laws that exist (if any). you will not confine yourself to legal materials. textbook or looseleaf service. If you don’t know anything about the topic you need to research. essentially we need to locate primary sources that define the relevant legal principles applicable to John’s case. f Feedback to revision activity Following the guidelines in this topic There is no right answer to this question. and as you work through this unit you will realise what they are. a thesaurus is a useful tool to help identify synonyms and antonyms. The facts given in summary form and in order of importance • The focus of the project is to investigate the laws that currently exist to control genetic engineering and cloning procedures both within Australian and internationally. It would also be useful to locate government and scientific reports on the topic. In the case of international law. relevant to the topic. ‘discrimination’ and/or ‘industrial law’. you would need to locate information on the existing law. To begin. Now that we have identified the most relevant primary source. both within Australia and internationally. and you are specifically instructed to look at the laws of other countries.

Brave New World experiments. not helpful here as no legal proceedings are identified in the problem not helpful here as no legal proceedings are identified in the problem not helpful here as no legal proceedings are identified in the problem geneticists. genetic engineering. What is important is that you identified as wide a range of words as possible to describe the topic. science. Your preliminary reading would also help to identify relevant keywords. CSIRO. Procedural terms associated with major word Words closely related to the major word . geneticists. eugenics. so you would also need to investigate state and territory laws related to the topic. eugenics. In Vitro Fertilisation clinics PS: Jen Nielsen’s sister is a geneticist. it is difficult to identify relevant legal procedural terms) Persons/organisations scientists. human clones. husbandry. inherited characteristics.LAW00051 Topic 7 – Methods of legal research 161 • The project also needs to investigate how effective these laws are in controlling the use of genetic engineering and cloning procedures in relation to both animals and humans. you are asked to examine all Australian laws. animal clones. Identify keywords It is not essential that you used either SHARP or the cartwheel method to identify your keywords. medicine genes. You should have indicated that to identify the legal area you would need to undertake some preliminary reading on the subject. In other words. cloning. so you would also need to identify relevant International laws. scientists. so she knew a lot of these words already. you could have used a dictionary and a thesaurus to locate many of them. genetic engineering. Darwinism DNA. The project report will be presented to the federal Attorney General. doctors. DNA heredity. • The legal area involved and relevant legal principles This is not obvious from the facts given. animal breeders. animal clones. and intellectual property rights. You are also asked to examine laws internationally. government. Broad areas that could be considered might include laws related to medical and scientific research and ethics. it is important that you thought broadly and laterally about the topic. cloning. Department of Agriculture. breeding. gene splicing (NB again as you have not been given information about types of legal proceedings. CSIRO. genetic manipulation Long shots laboratories. as well as the laws in other countries. scientific ethics. Following both of the methods we have described. nature. The jurisdiction The jurisdiction specifically involved is the Australian federal jurisdiction. RNA. However. genetic manipulation. biology. animal husbandry. you could have identified the following: SHARP S H A R P – – – – – genetics. breeding natural selection. human clones. However. ethicists Cartwheel – major word: genetics Broader terms Narrower terms Synonyms Antonyms science. as you are giving advice to the federal Attorney General. experiments.

Mastering Law Studies and Law Exam Techniques (LexisNexis Butterworths 6th ed.162 LAW00051 – Legal Research and Writing Where should you look? To locate this information we would rely on the ‘finding’ tools to identify relevant primary sources: Cases – citators. 2003) Krever. 2010) Hutchinson. R and John. How to Study Business Law : Reading. 2nd ed. K. 2010) Watt. Further reading and references Approaches to legal research Bott. 2006). 2nd ed. Government reports: we would identify by means of catalogues. Nemes & Coss’ Effective Legal Research (LexisNexis Butterworths. T. encyclopaedias. B. government websites and legal databases eg Austlii. 2009) Legal problem solving Crosling. current awareness services. Legal Problem Solving: A Guide for Law Students (LexisNexis Butterworths. Patrick. 2nd ed. Law Student Survival Guide (LawBook Co. 2nd ed. Statutes: annotators. 4th ed. H. Macken. Journal articles: using legal indexes such as APAIS and AGIS would identify relevant legal articles. C. and Talbot-Stokes. Milne. G and Murphy. 6th ed. Kath and Macken Claire. Writing and Exams (LexisNexis Butterworths 4th ed. current awareness services. Concise Legal Research (Federation Press. A Practical Guide to Legal Research (Thomson Reuters. R. ethical and scientific) raised. You may also need to conduct interviews with those who have an interest in the topic or are expert on the issues (legal. Legislation and Statutory Interpretation (LexisNexis Butterworths. and encyclopaedias. R. 2002) Keyzer. 2010) . 2009) Hall. Researching and Writing in Law (LawBook Co. S and Tucker. digests. 2nd ed. and encyclopaedias. We would use non-legal indexes to locate scientific and other types of journals. Butterworths Guides. F. 2006).

and compose search strategies using Boolean logic. Objectives On completion of this topic.Topic 8 Computerised legal research methods What we’ll do in this topic In this topic we will be looking at computerised legal research. The strategies identified in the previous topic will also be of use in computerised research. you’ll be able to: • • • describe major legal databases available on the internet and online. We will look in detail at how to prepare an appropriate search strategy.1 Are electronic research tools more reliable? Activity 8. This topic also includes details of how to select the appropriate online databases. the symbols and keys used in those databases and how to save or download your search results. We will also provide a quick guide to using some of the main legal databases. requires us to modify the techniques used in manual research. Computer assisted legal research (CALR) r a a Textbook N&C paras [4. brackets and literal strings.1]–[4.17] Activity 8. identify the appropriate database to use for particular research problems. It is essential to understand the strategies involved in computerised legal research to ensure that we locate all of the information relevant to a research problem.2 Summarise the advantages of CALR. connectors. However. truncation. 163 . the way in which computers store and retrieve information. in order to research effectively using computers.

15]. conventions are still being developed to cite them.1 (at [4.4 Write down the meaning of the following terms in your own words: • • • Boolean logic. Identifying search keywords and terms is an essential feature of computerised search strategies. the current convention is that only documents not readily accessible in a hardcopy published form require a reference that includes the URL and date of retrieval. You should find the following: • • • electronic decisions without a medium neutral citation. it has both) is here to stay. .34]–[4. Some terms used in CALR r a r Textbook N&C [4. As we have already discussed. it is essential that we provide a reference – citation – for all of the sources we use in our legal work.18]–[4.3 Summarise the disadvantages of CALR. electronic journal articles where there is no hardcopy version. Electronic searching with all its advantages and disadvantages (and.48]) Using terms and keywords As described in the previous topic.49] and Figure 4. but we will follow those set out in the Style Guide and AGLC. Although a wide range of legal materials is available electronically. As we introduce you to electronic sources we will also introduce you to the conventions on citing them.33] Activity 8.164 LAW00051 – Legal Research and Writing a r Activity 8. yes. manual research is performed by locating an appropriate subject heading and then narrowing your subject areas until you locate the appropriate authorities or secondary materials required to answer your research problem. Computerised research methods Textbook N&C [4. database. Citing materials located electronically Style Guide Look through the Style Guide and note the citations where the website (URL) needs to be included. and truncation. As indicated in the AGLC at [6. These conventions are not finalised. and internet materials.

brackets and truncation. sometimes through full text databases. As a result. you should always truncate your search term to include the plural as well as the singular of your term. particularly as they may change. Also. you may miss an important case where it was a ‘pony’ or even a ‘donkey’ that had broken through the fence. truncation and field names. or through structured databases: • • • Free text searching is the facility whereby you can search for a word or a combination of words anywhere within the database. in the following sections. such as title. pretend you are searching a database looking for a case concerning a horse that had broken through a neighbour’s fence. Most will allow you also to search in particular fields. subject headings and so on. Some of your search terms may require you to look for a literal string of terms: • • • A search connector is a word or symbol that connects the terms you are searching for. For example. This approach is more common in structured databases than in full-text databases. Others simply allow you to search in particular fields. A literal string is a search strategy that looks for your terms exactly as you have written them. One of the difficulties with computerised research is that the various databases use different symbols for their connectors. A search strategy may involve the use of search connectors or their symbols. If you search only for the word ‘horse’. it is essential in all computerised legal research that you learn to think laterally. as well as across the entire document. . A list of the various symbols used in most of the major databases is included in the Guide to Online Legal Research Publications that you downloaded from the Law Subject Guide in Topic 7. Don’t panic about the introduction of this jargon. You are not expected to learn all of these. you can check the search instructions in each database to ascertain which symbols are used.LAW00051 Topic 8 – Computerised legal research methods 165 Computerised research is performed by free text searching online. A search strategy is simply the process whereby we put all relevant search terms in an appropriate format to retrieve the required information. you may have even missed cases where ‘horses’ in the plural had been involved. Similarly. you will not find an answer. nor the entire range of relevant information available. We will look at truncation shortly. we will be explaining them fully. In some databases. A full text database is one that contains all the text of a document. Search strategies Many computerised online research systems require a search strategy to locate the items you require for your research. The difficulty with computerised research is that if you do not enter the correct term or terms with which you wish to search. A structured or bibliographic database is one that contains information in fields. You can start to do so by including as many similar terms that you can imagine. A symbol is the representation of a search connector.

or proximity as it is known. horse/dog This search will find records where either the term horse or the term dog or both the terms are mentioned. Some databases use symbols rather than words to denote the search connectors. ‘. ! Symbols – ‘&’. ‘+’ could have been used For example horse & dog. The latter two are what are known as proximity connectors. the most common connectors for search terms are and. This search will find records where both the terms horse and dog are mentioned. This search will find records where the term horse is located 15 words either side of the term dog. This search will find records where the term horse is mentioned but will exclude any where the term dog is mentioned. AND Horse and dog. This search will find records where the term horse is located within a specified range of the term dog. As pointed out in N&C. Just take note that some databases use references to ‘articles’ and/or ‘documents’ instead of ‘records’.166 LAW00051 – Legal Research and Writing Connectors Many databases use a form of Boolean logic as the search strategy. Please note that the word ‘record’ is used to describe any reference located through a search strategy. The range. Symbols – ‘/’. Truncation Truncation plays a very important part of computerised research as it allows you to search for the singular and plural of a word.’ could have been used NOT Horse not dog. within. The actual strategy is comprised of the terms selected as the main focus of the search plus the words or symbols incorporated to ‘connect’ or ‘link’ the search focus. as well as allowing you to search for the stem of a word. Some of these are listed below in the examples where we are attempting to demonstrate the use of connectors or their corresponding symbols. ! ! WITHIN Horse w/15 dog. near. is specified by the access software and can often be changed by the user. horse + dog OR Horse or dog. This search connector allows the user to stipulate the proximity of the terms. . to create sets and subsets of the information that is relevant to our research. Examples of the use of connectors are listed below. NEAR Horse near dog. not. You will see what we mean by the ‘stem of a word’ below. or. Some libraries may choose to prevent the user from changing the proximity of terms.

Other symbols used are ‘#’. You must check the search instructions in each database to ascertain how that database defines its truncation symbols. and ‘?’. • As mentioned. Famil! will allow you to search for the terms family and families. Some truncated terms will locate so many irrelevant records that it is simply no use to search for them. compassion. it is a single wildcard symbol) insur! will search for insure. In the above example. but it will also search for the term familiar. but will also search for compact. For example in LexisNexis databases: • • • • Recogni*e will allow you to search for both recognise (the Australian spelling) and recognize (the American spelling). An example is searching for company or companies: • Comp! will certainly allow you to search for the required terms. you could simply expect to find a few records that were not relevant. witnesses. as the term familiar had been searched for. or you could use the not connector to exclude familiar. This symbol can be ‘?’. Some truncation symbols indicate whether you are searching for a single wildcard or multiple wildcards. You need to think before you truncate. but will also search for companion.) Brackets It is possible to combine a number of connectors in one search. so that this will search for perm but not permanent Increasingly databases are including a wildcard symbol that can be embedded in your search term. some databases have truncation symbols for either a single wildcard or for multiple wildcards.LAW00051 Topic 8 – Computerised legal research methods 167 The most common symbols for truncations are the asterisk (*) and the exclamation mark (!) and these are used in the examples below. insurers. it will search for one or no wildcards). Child! will allow you to search for records containing the words child and children. (You may recall that an asterisk (*) is used in LexisNexis and Westlaw to replace a single character at any point in the word. not the least because you yourself will be clear on the search strategy you have devised. and the list goes on! This term has been truncated too much and will simply be a waste of time. Although some databases do not require the use of brackets and will read the search strategy from left to right. This extra term is probably no problem or could be excluded with the use of not. insurance. Witness! will allow you to search for records containing the terms witness. witnessed and witnessing. compete. complex. it is good policy to include your search terms in brackets. An example from Westlaw is: • • • Insur* will only search for insure (that is. . For example in AGIS and AustLII: • • wom?n will search for woman or women colo?r: will search for either the Australian or American spelling of colour (that is. etc (that is. A wildcard is simply an unidentified letter. it is a multiple wildcard symbol) #perm will ‘turn off’ a search for any plurals or expansions. Compan! will allow you to search for your required terms. ‘Famil’ would be the stem of the word. so that you are aware of terms that will be located using a truncated form.

Common or noise words are words which are excluded from the indexing of words. as it can be confusing. in. Searching in fields Although the full-text databases allow you to search for a term or combination of terms anywhere in the document. for. Other databases. negligen* and (accident near motor) This will search for forms of negligence and the term accident located within a certain proximity to the term motor. but for example: • • title(smith). Examples of these words are: of. the search would have looked for the first three terms in the same article or for articles with the term car. If you had omitted the brackets. This searching concept is used either because you want to find your search terms in a specific order. Literal strings A literal string is a search strategy that looks for your terms exactly as you have written it. such as LexisNexis. or more commonly. It is possible to make use of multiple brackets to ensure your meaning is clear.168 LAW00051 – Legal Research and Writing An example is: negligen* and accident and (motor or car) This will search for the various forms of the word negligence and the term accident and either the term motor or the term car or both of those terms. you may find records on the power of an attorney to claim a lien on a client’s documents) ‘under seal’ (this would enable you to find records where a document was signed under a company seal). and the term accident in proximity to either the term motor or the term car or to both those terms. Examples are: • • ‘power of attorney’ (by excluding a literal string search. You can also combine a search across the entire document as well as limiting a term or terms to particular fields. etc. many also allow you to limit your search term to a particular field. however. and. or title=smith . It would help avoid locating records where a passerby in a motor vehicle reported a parachuting accident due to the negligence of the parachutist. or. For example. with. In some databases (eg AGIS). the method of searching for these terms is to include them in inverted commas. Make sure your brackets are in the correct place. do not require inverted commas and will search for a phrase where no connectors are used. under. negligen* and (accident near (motor or car)) will search for forms of negligence anywhere in a record. because your search term contains common or noise words. The methods vary between databases.

Activity 8. This is a skill that will be tested in your assignment work. Take note that the number of hits or records you retrieve with your search strategy will get smaller as you make your search strategy more specific. oppressive. that when researching online there are two options. Title (smith) and negligen* w/9 build* Although it is possible to search across the entire record. This exercise will assist you to develop skills to compose computerised legal research strategies. you also can perform the searches on the databases suggested (or others if those databases are not available). a a Activity Work through the exercise at para [4. unconscionable or unjust contracts under the Contracts Review Act 1980 (NSW) duties of company officers and directors mistake of law in a contract a veterinarian’s negligent treatment of a cat expand the previous topic to write a search strategy using brackets to locate articles concerning cats and dogs and where the treatment was the desexing of the animal the termination of a contract. . Equally. ti=waltons and maher and contract (which would look for the case Waltons v Maher. Assuming you have access to a law library with electronic databases. Examples of this in AGIS are: • • leg=privacy (which would look for records about the Privacy Act).LAW00051 Topic 8 – Computerised legal research methods 169 In AustLII caselaw databases. excluding emotional abuse restraint of trade clauses case heard by Street J concerning mediation s 30AA of the Child Support (Registration and Collection) Act 1988 (Cth) harsh. or that you have access to the internet (and so the Southern Cross University library website). this search will find all the cases where Smith was one of the parties and the case involving negligence in building.1]. • • Sources of electronic legal information The number of legal and related websites and databases available today are so numerous that it is not possible to attempt to list them all. are often more effectively searched by limiting your search terms to the relevant fields. the number of hits or records will increase if your first search strategy is too narrow. literal strings and field searching: • • • • • • • • • • gazumping abuse of children. but not frustration of a contract Commonwealth laws about sexual harassment. structured databases. connectors. truncation. with the title heading of the article also including the word contract).5 Now try to compose search strategies (relevant to AustLII) to locate the following topics. You will recall from your earlier reading of N&C at [4. remembering to use Boolean logic and to think of alternate terms.48] of N&C. We have focused as much as possible on Australia-wide sources of information and have included primarily the major websites and databases. brackets.

These databases can be either Australian or from overseas.austlii. both legal and non-legal. As you will learn in the next reading in N&C the Australasian Legal Information Institute (AustLII). You will also find a comprehensive list of legal and other useful websites in the books referred to by N&C in footnote 10 of Chapter 5 (see para [5. There are many online systems available in Australia. r Textbook N&C Ch 5 Although the recent technological developments are exciting.edu. such as. The non-legal databases can provide corporate and commercial information. We will start by looking at the resources available on the internet. unless researching a topic that is fully covered by the available website or databases. which are of assistance to the legal researcher. product information. AustlII and the various courts and government websites which are freely available to the public. or indeed any. social issues. The other major legal publishers have useful websites (see [5.. however. use a browser.au> The AustLII collection contains full text databases of most Australian decisions and legislation as well as more specific databases of secondary material. caution still must be taken when using the Internet. AustLII also includes a number of more specialised (subject specific) databases as well as the . such as LawCrawler or Google to locate the site you want. Now we will look at some of the most important legal websites and databases. Internet sites The internet or information super highway is a collection of networks and databases worldwide. Please note that these addresses are accurate at the time of writing. as you may already know.170 LAW00051 – Legal Research and Writing • • Internet sites and databases.17]). land titles searches. is the main legal database on the internet.scu.au/law>. We hold these books in the Southern Cross University library.10]-[5. particularly to those at some distance from major. However this is not to say that you should not access the internet! A list of some useful legal websites can be found in the Law Subject Guide which you can access from the Library home page or go to: <http://libguides.edu. law library. remember to bookmark them so that you can get back to them easily (see N&C [5. so you may wish to borrow them to compile a list of useful URLs. This is because a limited range of materials is available on the Internet and it is therefore impossible to perform thorough research. health and medical information. to name a few. Where relevant we have included the database’s internet address or universal resource locator (URL). and are either commercial or government services. URLs frequently change! If this is the case. Databases created by the major legal publishers which can only be accessed by subscription. When you visit these sites.8]). The Australasian Legal Information Institute (AustLII) <http://www.12] but access to their databases is by subscription only (see below).

au/> Northern Territory Government home page <http://www. primary and secondary materials.australia.tas.au/> Qld Government home page <http://www.au/> Tasmanian Government home page <http://www. the Parliamentary Library (in Parliamentary Services). legislation and an Index to Parliamentary Information.scu.LAW00051 Topic 8 – Computerised legal research methods 171 most comprehensive index to Australian law on the internet. state.phtml> > is described as ‘subject gateway’ to internet resources.gov.nt. quality assessed internet resources on a wide range of legal subjects. Australian Parliament <http://www. It contains Commonwealth legislation and related materials. the Senate and House of Representatives.html> contains links to other major websites. law publishers. r r Textbook Re-read N&C [5.nsw. It provides annotated links to up-to-date.gov.gov. you may find the following sites very useful in your studies.edu.gov. a reference library.edu. such as the Human Rights and Equal Opportunity Commission and the Privacy Committee of NSW through AustLII.gov.au/index. nla. Note you can access these public sites and a number of others through the Law Subject Guide on the Library home page or go to: <http://libguides.wa.8]–[5. law libraries. ComLaw <http://www. law online.gov.au/> WA Government home page <http://www. Australian law on the internet (National Library of Australia) <http://www.au/oz/law.au/> ACT Government home page <http://www. law journals. territory and local governments departments and agencies. law schools and links to law sites outside Australia.gov.comlaw.au/law> WebLaw < <http://www.9] AustLII is the most comprehensive Australian public legal website. ComLaw is a database provided by the Commonwealth Attorney-General’s Department. Australian government entry point <http://www.10]–[5.vic. You can also access the homepage of a number of organisations.gov. NSW Government home page <http://www.act.sa. and is rapidly expanding. law by subject. The site contains a comprehensive user’s guide. vendors.au> has replaced SCALEplus.16] As well as the sites described in your text. this site provides access to federal. This is an invaluable address for those seeking government information.au/> SA Government home page <http://www.qld.au/> . Other useful legal websites Textbook Re-read N&C [5. however.au> provides access to Hansard.weblaw.aph.au/> It is impossible to list all the sources of government information Australia-wide.gov.gov.au/> Vic Government home page <http://www. such as the ATO and ASC.gov.gov.

Legal Research Materials ‘Finding Information on the Internet’ (7 June 2005) <http://library.) This helps you to be selective.deh.asic. Search engines crawl the Web and log the words from the web pages they find in their databases.ca/law/lederman/web.1 One search engine. You need to be highly selective. Have a look at the many links available here. Because some search engines have logged the words from billions of documents. there are also some legal search engines available on the internet. Environment Australia <http://www.htm> at 29 November 2005. Follow the link to ‘Children and the Law’. It is possible to perform a free but limited search directly from the ASIC’s website at <http://www. specifically for Australian and New Zealand materials is the Australia and New Zealand Web Enquiry Research System (ANZWERS): <http://www. The biggest search engine is.au/>. results can be overwhelming.au/library/> Select ‘Subject guides’ then click on Law and Justice and Law.findlaw.gov.au/> Another good one is LawCrawler: <http://lawcrawler. as well as for company directors and annual returns. Search engines are popular tools for locating web pages.com> This site will allow you to elect to search by country. Queen’s University.6 From the Southern Cross University Library home page <http://scu.au> This is a national computerised environmental information service produced by the Federal Department of the Environment and Heritage. finding information can seem difficult. Clearly there are advantages and disadvantages to being the biggest.edu. Search engines are simply a tool to allow you to search across the internet. most searches will retrieve an (over)abundance of information – not all of it ‘legal’ and not all with any authority. so you are able to limit your search to Australia. (Wow – there are a lot!) Under the ‘Websites’ tab find WebLaw. In it you can search for all company filings. but they often return thousands of results. How many Acts are there in Australia which govern the adoption of children? Although websites and public databases.com. Lederman Law Library Staff.com. . however. Google: <http://www. Internet search engines Apart from these specific websites and public databases.172 LAW00051 – Legal Research and Writing Ascot Ascot is the Australian Securities and Investments Commission database. You should also be aware that there is a ‘special’ Google database called Google Scholar which provides links to full-text scholarly articles (see the SCU Library databases. such as AustII. for while it is possible to limit your search to Australia. we suggest that you access these via the Law Subject Guide. a Activity 8. Because the Web is not indexed in any standard manner.au>.gov.anzwers.google.queensu. 1 William R. can be located by going directly to the website.

. these databases over the next few weeks. author and journal details. news. business. it covers major legal articles published in the English language.au/library/>.edu. type in yeo criminal law.scu.php/links/> Citing material from the internet r Style Guide Page 21.LAW00051 Topic 8 – Computerised legal research methods 173 a r Activity 8. finance. legislation. and using.edu. AGLC [6. unreported judgments. Subscription databases Southern Cross University subscribes to a number of subscription databases that each provide a comprehensive collection of law materials. technology and other subjects.15]. law reviews and journals.berkeley. Although this is a North American publication.edu/TeachingLib/Guides/ Internet/FindInfo. To access these subscription databases you must go to the Southern Cross University library home page <http://www. containing a subject and author index. It is in these databases that you will be expected to conduct the majority of your research while studying law. LexisNexis AU (formerly Butterworths) This is the largest and most comprehensive legal database available through the SCU Library. Full text international legal materials include reports.html> at 1 December 2005 Clearly ‘googling’ is a skill to be mastered and may be a useful starting point in some instances. and includes a table of cases. How many results do you get? Are any of them duplications? Could you have devised a more specific search strategy in Google? Reading 8. journals and bulletins in a variety of legal areas. click on Databases under Online Resources. University of California Berkeley – Teaching Library Internet Workshops: The BEST Search Engines & Googling Guide #2: Getting the Most from Google’s Fuzzy Logic (31 August 2005) <http://www.scu. However. government. Index to Legal Periodicals is also part of LexisNexis International. It contains thousands of publications which provide extensive sources of information in the areas of law.1 Joe Barker. The entries under each subject heading contain the title of the article. Using Google and limiting your search to Australia. It is an online bibliographic and full text legal database which covers a range of Australian publications published by LexisNexis.lib. We will spend time looking at. The most comprehensive subscription legal databases are listed below. LexisNexis International Is one of the world’s largest online database services. For a wide selection of useful websites visit the following SCU Library link: <http://www. medicine. looseleaf services. law reports.7 Assume that you want to find out what Professor Stanley Yeo has written about criminal law. Products include: full text legal research publications.au/library/index. it will be very rare that you will conduct your legal research on Google and you should never provide a reference to Google in a law assignment. This is a monthly publication.

unreported judgments. as well as from Western Australia. Legal Online provides access to the full text of law reports.38]–[6. Explanatory Memoranda and Second Reading Speeches. r Textbook N&C. South Australia and Tasmania. download the full text of legislation as passed and even receive customised email alerts covering the subject areas or legislation important to you. Torts Law Library etc.49]–[6. loose-leaf services. CCH Online CCH Online provides online access to the loose-leaf services published by CCH. The products subscribed to by Southern Cross University Library and available electronically include Employment Law Guide. you can search full text legislation from all nine jurisdictions. The State Reports (NSW) from 1901–1972 are also available. and unreported cases from those states. the Attorney-General’s Information Service APAIS. authorised reports. Caselaw on Westlaw Australia has an integrated citation service called KeyCite which replaces Australian Case Citator. APA-FT and CINCH These are online bibliographic and full text database that index and abstract journal articles from published material: • • • AGIS. AGIS AGIS Plus Text and ALJI [6.50] and CINCH [6. journals. and consolidated Commonwealth Acts and Regulations. Family Law Library. the Australian Public Affairs Information Service (full-text available) CINCH. Bills. Other legal databases LawPac LawPac contains the full text of reported cases from NSW. InfoTrac This is another North American publication. Victoria. TimeBase – LawOne LawOne is one of a number of products available from the database vendor TimeBase. KeyCite gives access to cases by citation or title and indicates case history and judicial consideration. unreported judgments. It has a very broad coverage of all legal articles published in the English language.48]. the Australian Criminology Database. link through to amending and subordinate legislation. INFORMIT databases: AGIS Plus Text. .52]. InfoTrac is not available through Southern Cross University’s electronic law library. view detailed legislative histories. LawPac is not available through Southern Cross University’s electronic services. With LawOne. and the research services Laws of Australia and FirstPoint.174 LAW00051 – Legal Research and Writing Legal Online (LawBook online) This site provides an online collection of some of the Australian legal materials published by LawBook Company. Queensland. APA-FT [6. easy-to-use interface. Westlaw Australia This site contains Australian cases. We will be looking at this database (which includes FirstPoint) over the next few weeks. LawOne provides complete Australian national legislation coverage in one powerful.

Which is the appropriate database? Below is a summary of the various products containing computerised information relevant to a range of research objectives.LAW00051 Topic 8 – Computerised legal research methods 175 ABIX ABIX is the database containing the Australian Business Index. expensive. That is. The Sydney Morning Herald. unfortunately. and has done since 1981. BRW and the The Bulletin. which indexes newspapers and business journals such as The Australian. ABIX is not available through Southern Cross University’s electronic library. You should also refer to the Guide to Online Legal Research Publications. The Financial Review. financial and economic journals. and contains many of the articles in full text. Citing material from subscription databases It is not necessary to provide the URL for materials located on the subscription databases. For example. BPO Business Periodicals Ondisc contains the full text of articles from the major business. It is very comprehensive and therefore. you need only cite the source used. ABI/Inform ABI/Inform is a comprehensive database that indexes business and management journals worldwide. if you use the Citator in LexisNexis Au to locate information about a case you would cite the case as the source of that information not the citator. To find the full text of cases by name Consult the following: • • AustLII – LawCite LexisNexis AU – CaseBase – Family Law Reports – NSW Law Reports – Unreported judgments Legal Online – FirstPoint – Australian Criminal Law Reports – Commonwealth Law Reports – Federal Law Reports – Federal Court Reports – Industrial Reports – Local government and environmental reports Westlaw Australia – Reports from all Australian jurisdictions – Unreported judgments from all jurisdictions • • To find cases by subject Consult: • • Legal Online – FirstPoint – Laws of Australia LexisNexis AU – CaseBase – Halsbury’s Laws of Australia – Australian Current Law . management.

176 LAW00051 – Legal Research and Writing To find cases which judicially consider earlier cases Consult: • • • • Legal Online – FirstPoint LexisNexis AU – CaseBase – Australian and New Zealand Citator to UK Reports AustLII – LawCite Westlaw Australia – KeyCite To find case notes or articles about case Consult: • • • LexisNexis AU – CaseBase AGIS AustLII To find cases from words and phrases judicially considered Consult: • • LexisNexis AU – CaseBase – Australian Legal Words and Phrases Legal Online – FirstPoint To find legislation and update it Consult: • • • • • TimeBase – LawOne AustLII LexisNexis AU – Statutes annotations – Australian Current Law – Legislation Comlaw Parliamentary sites To find notes and articles about legislation Consult: • • • AGIS LexisNexis AU – CaseBase – Statutes annotations AustLII To find judicial consideration of legislation Consult: • • • AustLII LexisNexis AU – CaseBase – ACL Legal Online – FirstPoint .

Feedback 8. and the judicial meaning of the word ‘alibi’.8 List all of the websites. Activity Complete exercises 8. Their use depends on the skill of the researcher. the citation of the case Harrington v Lowe. Of course. as it is essential that your research results are as up to date and comprehensive as possible. public databases and subscription databases available on the internet where you could locate the following: • • • • • an up-to-date version of s 180 of the Corporations Act 2001 (Cth). Thus.1. Feedback 8. For those tools that duplicate hard-copy resources in electronic form.2–8. a legal article on child abuse.5 in the Workbook. an understanding of the structure of the hard-copy source will result in a better understanding and more effective use of the electronic form.2 The main advantage of CALR is that it enables you to search across a broad range of information in one search. another problem is that computers ‘crash’ and ‘go down’.1 (Study Guide) Electronic research tools are not necessarily more or less reliable than manual research tools. you just need to know how to ‘hit the books’! Finally. Halsbury’s Laws of Australia is an example of a hard-copy resource that is duplicated in electronic form. This is important to keep in mind. When this happens. is very time-efficient – provided your search strategy is defined appropriately. Activity In the Workbook (available in Unit Document in MySCU) complete exercise 8.3 The main disadvantage of CALR is that electronic resources are not comprehensive. Feedback 8. a general article on child abuse. access to the latest technology and best databases is not cheap so many workplaces still rely on traditional or hardcopy resources.LAW00051 Topic 8 – Computerised legal research methods 177 To find general legal articles Consult: • • • • • • AGIS Plus Text and APA-FT LexisNexis AU – CaseBase – Index to Legal Periodicals Google Scholar AustLII HeinOnline Legal Online To find government information Consult: • • The relevant government department website AustLII (limited amount of information) a a a f f f Activity 8. There is still legal information that has not yet been stored in electronic form. .

near w/n brackets.178 LAW00051 – Legal Research and Writing f Feedback 8. The following are suggestions of ‘good’ strategies. and the records are catalogued so that the information in each record can be retrieved through the use of different descriptors or ‘fields’. Truncation describes the way we cut our keywords down so that we can avoid being too limited in our search strategies. where relevant truncation symbols. Usually it involves the abbreviation of a word. ? and ! connectors. a more complex and specific strategy would be: (child* or minor? or juvenile?) and (porn* or (sex* near material?)) and (internet or ‘information superhighway’) • contract? and terminat* not frustrat* . of course.5 There is no right answer to this question.4 Boolean logic is a method for linking keywords so as to describe the concept or information that we are looking for. The information is divided into ‘records’ (which are like files). will vary according to the database being used. as that would involve too many irrelevant terms. each record that contains the same case name in the case name field. not. • (child* or minor? or juvenile?) near porn* and internet Alternately. such as ‘information superhighway’ field searching. or that contains the keyword in any field of the record. Also. is to illustrate that you are able to use the following features when composing a computerised research strategy: • • • • alternate terms. or. we may locate information in the database by using the case name field or by using a keyword. We will be explaining this in more detail later in this topic. which leaves you with the stem of a word. Thus. The particular symbols that you would use. such as *. You may have thought of others. What you need to do. however. • • • • • • • • • • gazump* abus? and child* not emotion* restraint near trade street near court and mediat* s 30AA near Child Support Act contracts review @ leg dut* near (compan* or corporat*) near (officer* or director*) ‘mistake of law’ near contract* negligen* and veterinar* and cat negligen* and veterinar* and (cat or cats or dog*)and (desex* or castrat*) Note that it is not wise to truncate the term ‘cat’. such as and. It enables us to build up sets and subsets of information. from the entire range of information available. For instance. They would be appropriate to use in AustLII. such as ti=(sex* harass*). A database is another means of storing information electronically. f Feedback 8. it is important to include alternate terms for desexing and company. especially around terms connected by or. will be retrieved and presented to you as the results (or ‘hits’) of your research query. Your search may also have included: • • literal strings.

Google Scholar. 2002). have thought of alternate terms and have used connectors to join your terms.1996). as long as you have successfully truncated the terms. Researching and Writing in Law (LawBook Co.8 • • • • • AustLII. APA-FT. ProQuest 5000 LexisNexis – CaseBase. Niger and Sierra Leone have some of the highest rates of child labour. Poh-York. 6th ed. Kerr. LawOne (TimeBase) AGIS. 4th ed. using AustLII and selecting the Commonwealth consolidated Acts: sex* near harass* There are many different ways to compose a search strategy. There were more duplications than I cared to count! Feedback 8. L and Tooher. f f f Feedback 8. Concise Legal Research (Federation Press. A and Gilchrist. Feedback 8. J. CINCH.LAW00051 Topic 8 – Computerised legal research methods 179 • sex* near harass* and (commonwealth or federal or cth) near (law? or act) Alternately. 2009) . In these countries 50–72% of children between the ages of 7 and 14 are engaged in labour that is ‘considered harmful to their development’. Legal Oniline – FirstPoint. with brackets if necessary. 2010) Watt. An Introduction to Legal Resources on the Internet (Crucial Briefs Legal Research Services. A Practical Guide to Legal Research (Thomson Reuters.6 The first answer is: every state and territory has its own adoption legislation. use the Search capacity. Do not worry if your strategy is slightly different to my answer. E. J. ComLaw. 2nd ed. Westlaw – KeyCite CaseBase. 2006).7 When I searched Google using the search strategy yeo criminal law on 23 November 2010 my search returned 28. Alternatively. 2000) Milne. P. Expanded Academic ASAP. Hoyle. S and Tucker. The Sub-Saharan Africa countries. Campbell. 2nd ed. Legal Online. LexisNexis AU. K. R and John. 2nd ed. AustLII. 10–14 Hutchinson T. H.15 seconds! When I limited my search to pages from Australia 1860 results. LawNow (LexisNexis AU). Law on the Internet (Federation Press. Australian Legal Words and Phrases – online Further reading Banks. HeinOnline APA-FT. AustLII – LawCite. As to the statistics did you find any? They are available if you follow the link to Statistical Tables and then select Child Labour.500 results in 0. Legal Research Materials & Methods (LawBook Co. C and Douglas. F.

180 LAW00051 – Legal Research and Writing .

forms and precedent services. Secondary sources also provide general information. or commentary. and current awareness services (see Topic 10). This is because these topics provide an overview of all of the secondary sources that we will be looking at in more detail in the remaining topics in this module. looseleaf services. Finding these primary sources of law is not easy and. You will notice that you are referred to a lot of reading in your text in this topic and the next. Importantly they also include: 181 . digests (see Topic 10). citators and annotators. textbooks. periodicals (journal articles). in order to fully understand how to use the secondary sources for particular research purposes. law lists and almanacs. and non-legal information.Topic 9 Secondary sources – commentary What we will do in this topic In this topic we will be looking at some secondary sources. we suggest that you focus on the sections of the text that describe these secondary sources. in most instances. legal encyclopaedias (see Topic 10 as well). Secondary sources include: • • • • • • • • • • • • dictionaries. it is necessary to locate them through the secondary sources of law. We will learn how to use some secondary sources in this topic. the primary sources of law are those authoritative statements of legal principle in the common law and in legislation. about the topic you are researching. As we have learnt. and will continue to learn to use the others in later topics. You will need to come back to some of these latter sections of the text later. To make the reading in these topics more manageable. government and parliamentary publications. and skim read the parts of the text which describe how to use these secondary sources.

namely legal. Legal dictionaries A legal dictionary is a technical dictionary for the legal profession. especially Latin terms. Dictionaries can. drafting documents or writing essays. particularly providing clarification and analysis of primary sources of law. which are still commonly used by the legal profession.182 LAW00051 – Legal Research and Writing We will take a brief look at each of these secondary sources of legal materials in this and the next topic.4] Dictionaries Textbook N&C [6. be divided into four categories. focusing on their content. You should also review the information given in Topic 8 – sources of electronic legal information – as it is important that you become familiar with the many databases that provide excellent sources of secondary legal materials. technical and standard. We will also look at how to cite some of these secondary materials. and cite secondary materials correctly. you should always use a dictionary. Together with legal encyclopedias they form an integrated research system and we will show you how to use them this way. You are encouraged to purchase a legal dictionary for your studies. that the words you use are given their precise (legal) meaning. We will return to them in more depth in the following topics when we learn how to use them. judicial. a citation guide and list of abbreviations. when interpreting legislation.5]–[6. particularly how to use them to locate the primary sources of law.1]–[6. To be sure that you are accurate both in your legal writing and your research. Objectives At the completion of this topic you should be able to: • • • • identify the use and content of secondary materials. understand the value of using of secondary sources to locate primary sources of law. Introduction r r Textbook N&C [6.8] It is essential. The best legal dictionaries also have additional features such as: a copy of the Australian Constitution. It contains the meaning of technical terms. for our purposes. In Topic 10 we will concentrate on digests and the current awareness services that are particularly useful tools to both find and update information. and we recommend either: . understand that secondary sources also provide commentary.

because it is an Australian publication and therefore more relevant to Australian law. Some require a subscription such as the Macquarie Dictionary Online <http://www. If you don’t already possess a legal dictionary. Trisha Mann (ed). Australian Legal Words & Phrases is also available online through LexisNexis AU. 1 Holt & Co v Colyer (1881) 16 Ch D 718. . There are other legal dictionaries suitable for students. and the main volumes are updated and replaced at regular intervals. There are dictionaries that cover terms for particular industries. 2010). trades or business. the words in the Act are to be read as having the meaning that they in fact had in that trade. its technical or scientific meaning. business or transaction. such as. or to a particular type of transaction. There is now a Concise Australian Oxford Dictionary. we strongly recommend that you purchase one now.1 Standard dictionaries A standard dictionary will be referred to by the courts whenever the meaning of a word is not clear or not defined in a technical dictionary.com/>. If an Act of Parliament is one that relates to a particular trade or business. Other options are indicated in the Online Guide to Legal Research Publications referred to earlier. You will need to use it during your studies and will find it useful later in your work. Oxford Australian Law Dictionary (Oxford University Press. For example. including a legal dictionary. such as. the dictionary most commonly used by the courts was the Oxford English Dictionary. For many years. and the words used in that Act are words that have a particular meaning in that trade. Edna Carew has produced an excellent dictionary containing banking and finance terms. Judicial dictionaries A judicial dictionary contains an alphabetical listing of words and phrases that have been considered by the courts.LAW00051 Topic 9 – Secondary sources – commentary 183 Peter Butt (ed). such as the digests and encyclopaedias. 2010) (now available with e-Version). such as a legal dictionary. The only Australian hard-copy publication is the Australian Legal Words & Phrases 1990–1994. macquariedictionary. Butterworths Concise Australian Legal Dictionary (LexisNexis Butterworths. the Australian Encyclopaedic Legal Dictionary in LexisNexis AU. 4th ed. Technical dictionaries A technical dictionary is one that includes specialised terms. namely. However the courts are increasingly referring to the Macquarie Dictionary. If it is a word which is of a technical or scientific character then it must be construed according to that which is its primary meaning. There are also online legal dictionaries. It is possible to find words and phrases judicially considered by using other research tools.thefreedictionary.com. This work is updated by a supplement.au/> and others are free. 720. You should note that there are many online dictionaries available to you. such as The Free Dictionary < <http://www. Osborn’s Concise Law Dictionary and the CCH Macquarie Concise Dictionary of Modern Law. The use of technical terms without definition in an Act of Parliament can also cause difficulty. business or transaction at the time the Act came into force.

. For example.184 LAW00051 – Legal Research and Writing Citing dictionaries Dictionaries are cited like ordinary legal texts. concentrate on using the catalogue to locate texts. Howard’s Criminal Law (LawBook Co. followed by ‘et al’. Using the Southern Cross University Library online catalogue try the exercises for yourself. There is no need to include the abbreviations. whatever the purpose of your research. As noted in the AGLC and the Style Guide.9]–[6. as they are likely to be quite misleading. a r Activity Turn to the exercises described in [6. they should be cited as follows: P Butt (ed). you may refer to the first named author only. if there are more than three authors. You will usually find a notation on or near the title page of the text. The general editors rather than individual contributors are acknowledged.21] of N&C. For the moment. can provide much more depth than other secondary sources. A textbook usually covers a particular topic or area of law. AGLC Part III Chap 5. which means ‘and others’. care should be taken in their use. ‘p’ (page) or ‘pp’ (pages). Textbooks r Textbook N&C [6. indicating the currency date of the material. Texts can be located using the skills you would employ to find any book in a library that is by searching a library catalogue using a subject. 2010). You will notice that the reading in your text provides a range of ways to locate references to textbooks. unless you have read the section on locating periodicals (journal articles) thoroughly. author or title search. and then practise the other methods described. 4th ed. Butterworths Concise Australian Legal Dictionary (LexisNexis Butterworths. Do not attempt step 1(c). and as such. 5th ed. Citing textbooks Style Guide Page 17. Take care not to use textbooks that are hopelessly out of date. Some authors have a particular interest or focus in their topic and the text therefore may not be considered completely impartial. 1990) 457–64. Although many textbooks and their authors are considered authoritative in their own right and are often cited in court for the benefit of judges. For example: B Fisse. however. Always double-check your references when using texts and make sure that you update the authorities you locate with the one of the current awareness services – Australian Legal Monthly Digest or Australian Current Law.26] Textbooks can provide a lot of information of assistance in legal research. Page references are placed after the date of publication.

as they provide a general overview of the topic. criminal law and liquor law. and commentary all of which are relevant to the topic of the looseleaf service. trade practices. 7th ed. Once you have located that subject section. The advantage of this format is that the work can be updated regularly by replacing pages of the work as the law develops. family law. and then looking for that section on the library shelves. These services are subject-oriented. Laying Down the Law (LexisNexis Butterworths. local government and environmental law. You will remember the MOYS classification from Topic 1. to name a few. as well as the library catalogue. company law. administrative law. Looseleaf services r Textbook N&C [1. check the menu of the electronic databases in the library you are using to check what looseleaf services are available. They have become the ‘backbone’ of a legal practitioner’s library. intellectual property. 2010). The hard-copy services must be manually updated by the librarians or in law firms by the paralegals – a time-consuming and tedious task! Apart from the advantage and ease of updating information in looseleaf services. This hybrid form (a combination of primary and secondary sources) makes them particularly useful to practitioners. recent decisions.LAW00051 Topic 9 – Secondary sources – commentary 185 For example: C Cook et al.21] and [6. looseleaf services often make a good starting point in legal research. Take note also that many looseleaf services are now available electronically so. and cover such areas as court practice manuals. taxation. as well as relevant legislation and cases. . Many looseleaf services are being published in an electronic format which has the advantage of the updates being automatic. You will also locate looseleaf services by identifying the MOYS classification for the subject area you are searching for. A looseleaf service can be located in the same way as a textbook – by using a catalogue search.) Citing looseleaf services r Reading Read and follow the method described in the Style Guide and the AGLC [6.4]. the looseleaf services will be located on that section of the shelves. they usually contain • • • current legislation. Accordingly.33] For many years there has been an increasing tendency in Australia to publish works relating specialised areas of law in a looseleaf format. (See particularly the CCH databases as well as those from Legal Online and LexisNexis AU.

Each title includes an Index. which are referred to by number.01.186 LAW00051 – Legal Research and Writing Example: LexisNexis Butterworths. (As such it differs from a digest as we shall see in the next topic. the hard copy has not been keep up-to-date.154] Halsbury’s is available both in hard-copy and online through Southern Cross University library. the legal encyclopaedias form an integrated research tool. these are not legal encyclopaedias. and Halsbury’s Laws of Australia. Halsbury’s divides its commentary into titles. (Your research will undoubtedly need to be updated and we will look at how you do this in the next topic. Both are produced in hard-copy and electronically.) As the authors of N&C say.32] and [6. Within each title. Family Law and Practice Commentary (at 23 November 2010) [5–200] Legal encyclopaedias r Textbook N&C [6. with a brief reference to the most relevant cases and/or legislation. Family Law Library.119]–[6. However. Words and Phrases.) Australia has two legal encyclopaedias: 1. not at the front of each title. Together with the digests and current awareness services. Civil Procedure: Victoria. which is contained at the front of the volume. 2. The Laws of Australia.1].1 – ‘The Structure and Contents of Halsbury’s Laws of Australia’ Access to Halsbury’s is either via the Consolidated Index or by the Index to each title.125] A legal encyclopaedia provides a commentary on a topic of law. Please note there are numerous websites and online resources that use the word ‘encyclopaedia’ in their name eg Wikipedia. each paragraph of commentary has its own number. vol 1 (at Service 231) [21. Cross on Evidence (at Service 132) [5240]. a legal encyclopaedia is a good place to start research or it might even be the place to start research – particularly if you are unfamiliar with the area of law that is the subject of your research. OR online LexisNexis Butterworths. It is not in-depth discussion but gives an accurate (even if brief) overview. Nor will it always provide the most current relevant authority for a particular point of law or a legal principle and for this reason a legal encyclopaedia is unlikely to be your final research destination. Textbook N&C Figure 6. Halsbury’s Laws of Australia – LexisNexis Butterworths r r Textbook N&C [6. Table of Contents. Table of Cases and a Table of Statutes. Australian Encyclopaedic Legal Dictionary. .126]–[6. CCH IntelliConnect.

Table of Cases. which are part of the Legal Online Current Awareness Service. Table of Contents. Words and Phrases. that this section of your text refers to a secondary source called the Australian Digest.LAW00051 Topic 9 – Secondary sources – commentary 187 There are four consolidated indexes in separate volumes – Index. We will look at the Australian Digest and the Australian Legal Monthly Digest. For both legal encyclopaedias Keep in mind these points about Halsbury’s Laws of Australia and The Laws of Australia: • • They are both a good starting point for your research. which is being replaced by Halsbury’s Laws of Australia. r Textbook N&C Figure 6. case name or legislation name. All of this indexing is designed to assist your search. the second number to the Subtitle and the third number is the number of the paragraph containing the commentary. Please attempt this activity the next time you visit the library. in Topic 10.) Take note.155]–[6. Information can be located using the consolidated indexes either by general subject. The Laws of Australia follows a three-part numbering system. particular when you are not familiar with the legal subject area.181] The Laws of Australia is available both in hard copy and online. The Laws of Australia – Legal Online (LawBook) Textbook N&C [6. a r Activity Visit the law library or access Halsbury’s Laws of Australian in LexisNexis AU and work through some of the exercises given in this section of your text. Table of Legislation. Figure 6. Table of Cases and Table of Statutes.5 of N&C shows that the hard-copy version of The Laws of Australia is arranged in volumes according to title with each title including the following sections – Index. The first number is related to the title. also. Consolidated Table of Cases and Consolidated Table of Legislation. The titles are cross-referenced to Halsbury’s Laws of England. (Take care if using the hardcopy in Southern Cross University library as it may not be up-to-date. User’s Guide. Reference can also be made to the Australian Commentary to Halsbury’s Law of England.5 – ‘The Structure and Contents of The Laws of Australia’ The numbering system used in the Laws of Australia is useful to allow updating of information using the Australian Digest and the Australian Legal Monthly Digest (ALMD) as we will see. As well as this there are four general indexes – Consolidated Index. Information from Halsbury’s is updated by reference to Australian Current Law (Butterworth’s Current Awareness Service) as we shall see in Topic 10. .

Please attempt this activity the next time you visit the library. work through some of the exercises given in this section of your text.) Citing legal encyclopaedias r a Style Guide Page 18. Citators and annotators A citator is a research tool that is specifically designed to help us locate information about cases. [20–125] Wearing of Collars and Tags. vol 15 (at 18 November 2001) 15 Equity. Online. Information in Halsbury’s Laws of Australia is cross-referenced to and can be updated using Australian Current Law (ACL).3] particularly about citing online legal encyclopaedias. A citator serves two purposes. Activity When you visit the law library. CaseBase (LexisNexis AU). Example: Lawbook Company. and KeyCite (WestLaw). ‘15. Laws of Australia. ‘1 Registration and Other Requirements’. LawCite (AustLII).188 LAW00051 – Legal Research and Writing • The online versions of the encyclopaedias allow you to browse the subjects using a table of contents or keyword search using search fields. The principal citators in Australia are the Australian Case Citator. when researching a particular area of law. Halsbury’s Laws of Australia. Australasian Case Annotator. approved or overruled in a later case. It is essential. (at 27 September 2005) 20 Animals. OR online LexisNexis Butterworths. the Australian and New Zealand Citator to UK Reports. to be sure that the authorities that you have located are still good law. . FirstPoint (Legal Online). CaseBase and FirstPoint. The citators that are generally available are: • • • • • • • • • Australian Case Citator. (See Topic 10. ‘2 Companion Animals. the Australasian Case Law Digest. when only the parties’ names are known. The first and fundamental purpose is to give the citation/s for a particular case. and are the latest authorities on that point. and the Laws of Australia is crossreferenced to and can be updated using the Australian Digest and the Australian Legal Monthly Digest (ALMD). and in particular we will be looking at their use in researching case law. however. We will learn how to use citators in the next topic. More importantly. a citator will inform a researcher if a case has subsequently been judicially considered – followed. Australian Case Law Digest. Australian and New Zealand Citator to UK Reports.5 Fiduciaries’ [37]–[39]. AGLC [6.

Most jurisdictions have annotators to their legislation. taxation and family law. Non-legal periodicals are often of assistance to researchers as well in providing general information. Also. you can find instructions on how to search for journal articles in the Guide to Online Legal Research Publications. such as the Australian Law Journal and many of the university journals. Perhaps you should bookmark the relevant section in the text and the databases as they will be of great value to you.34]–[6. An annotator contains general legislative information. Remember that some of the major legal periodicals. which refers you to a monthly issue of an indexing service. .LAW00051 Topic 9 – Secondary sources – commentary 189 An annotator is a research tool specifically designed to help us locate information about statutes – although just to confuse the issue there is the Australasian Case Annotator. The most common and much easier method of locating journal articles these days is by the use of journal abstracting and/or indexing databases (such as AGIS or the Index to Legal Periodicals). These periodicals cover such areas as business. health. magazines and newspapers. taxation. In legal research we often look for articles published in legal journals to assist us to understand and to locate legal information. accounting. It usually involve looking up a subject index. but in the main it is necessary to consult an index. We learn about using annotators in Topic 12. It includes journals. It is possible to locate journal articles through the use of digests or they may be referred to in texts. You should become acquainted with all of these resources. Further. Most of these are now published both in hard copy and in electronic format. r Textbook N&C [1. repeals of Acts. government and the environment. as well as being an excellent source of historical material. A description of the most common legal journal indexes and databases (and how to use them) is included in your text. Periodicals (journal articles) ‘Periodicals’ is a term used to refer to materials that are published on a regular basis. as well as references to cases where the court has considered particular provisions of the legislation. others discuss the reasons for change in the law. ‘Finding legislation’. have comprehensive indexes and much information can be located through them.100] With the rapid development in the law today.20] and [6. which in turn may provide a brief abstract of the article. and still others publish articles of interest in a particular area of law. such as company law. Locating periodicals using manual research methods can be difficult. which clearly refers to cases. the Law Subject Guide on the Southern Cross University library website provides a list and links to the best databases for locating journal articles. legal periodicals fill a vital niche in providing current discussion and comment on these changes. including details of amendments. Some journals aim to keep their readers up to date. media.

which are available elsewhere. it does not contain the most recent issues of journals. which is an electronic law journal produced by the School of Law at Murdoch University. New Zealand and Pacific legal periodicals. As with LexisNexis it is a large. It does include some Australian materials. This service provides coverage of Australian. but many of the major university law reviews from Australia and other common law jurisdictions are also included. The majority of these originate in the United States. It allows for a keyword global search across all of its libraries. The entries under each subject heading contain the title of the article. Legal and most non-legal periodical articles can also be located by consulting other InfoRMIT publications. it covers major legal articles published in the English language. as well as selected articles from the United Kingdom. it contains the full text of over 1200 journals. Internet sites for locating periodicals AustLII AustLII provides search access to many Australian and New Zealand law journals including eLaw Journal. Although this is a North American publication. APA-FT. sociological. psychological and economic aspect of the family). Most articles are available in full text. comprehensive database that contains the full text of some 20 journals. This is a monthly publication. Legal Online (LawBook) This part of the Thomson/Westlaw publishing group. It contains secondary legal resources including access to Australian and International full text journal articles as well as the Index to Legal Periodicals. LexisNexis AU This large and comprehensive database allows for the effective searching for articles in several ways. HeinOnline HeinOnline is the most important example of a law journal archive. such as the Australian Public Affairs Information Service (APAIS). Canada and the United States. containing a subject and author index. As the authors of N&C say. and includes a table of cases. It is important to note that because it is an historical archive. Index to legal periodicals This is the most comprehensive legal journal index. CINCH and FAMILY The most up-to-date legal index in Australia is the Attorney-General’s Information Service (AGIS). LexisNexis International LexisNexis is a North American online service. author and journal details. CINCH (a criminal law and criminology database) and Australian Family and Society (FAMILY) (which contains legal.190 LAW00051 – Legal Research and Writing Locating periodicals Subscription databases for locating journal articles Informit – AGIS Plus Text. . In many instances there is a link to the full text of an article.

however. Australian Law Reform Commission and other government publications. Locate the relevant title in the Key and Research Guide. Searching is free. for instance. the information is located at the end of each title in the ‘Digest of Laws’ section. you should be aware that references to journal articles can appear in a great many sources that are not specifically geared to that purpose. These may not be your first choice.) IngentaConnect CARL UnCover was developed by the Colorado Alliance of Research Libraries and indexed a great many journals. To locate journal articles using the hardcopy Australian Digest. Other ways of locating citations to journals As well as the specialised databases.93] The Australian Digest (a research tool that is more comprehensively discussed in Topic 10) contains references to articles in a variety of places. as with all ‘googling’ you need to search selectively. Update with the latest ‘General Index’ for ALMD (or the December issue for previous years) by referring to the relevant subject heading and looking under ‘articles’. 5. (The most effective way to find Google Scholar is through the SCU library databases. indexes. You will note that you do not use ‘p’ or ‘pp’ to refer to the page number at which the article commences within the journal nor for a specific page reference within a journal article. Locate the list of articles found immediately after the Table of Contents in the title (white pages). follow these steps: 1.89]–[6. In ALMD. but article delivery is only available for a fee Locating periodical in digests and current awareness services r Textbook N&C [6. 3. AGLC Chap 4. 2. will often include such information. Citing periodicals r Style Guide Page 19. this information is usually located immediately after the table of contents for each title in the main volume. In the main volumes of the third edition.LAW00051 Topic 9 – Secondary sources – commentary 191 Google Scholar Google Scholar allows an easy search for scholarly (academic) materials including articles books and theses. Locate articles listed at the beginning of the supplement (yellow pages). Textbooks. and across many different disciplines. current awareness services and the internet. 4. With the supplements to the third edition. but they are useful resources nevertheless. It is now available through Ingenta. . the information is located at the beginning of the supplement.

au/oz/gov/> Australian Government publications page <http://www. Government and parliamentary publications There is a broad range of government publications. the relevant government website or by contacting the government publisher. as opposed to statutes and subordinate legislation.publications. but this service is not usually available to individuals. This general government information is a secondary source of law.nla. such as in a library catalogue. most of the government publishers provide a free call service for country residents.gov. statistics. These numbers are in your phone book. or may be referred to in the current awareness services – Australian Current Law or ALMD.nsw. To remedy this. Here are a couple to get you started: • • NSW Government publications <http://www.austlii. directories.edu. and reports of Royal Commissions and Boards of Inquiry.qld.au/home.publications. Most of the government publishers provide a monthly catalogue to their current subscribers.au/> Qld Government Bookshop <https://www.aspx> a Online activity Visit any or all of the websites listed above and explore them! See what government information you can locate using their search engines.192 LAW00051 – Legal Research and Writing For example: D Lanham. etc. which are primary sources of law. The following are some websites that you could start your searching for government publications: • • • National Library’s government entry point at <http://www.gov. New publications may be included in AGIS and APAIS. government gazettes containing notices. . yearbooks.au/> For the States and Territories try starting at the relevant government website.gov. which contain vital information relevant to all types of legal research. ‘Wilful Blindness and the Criminal Law’ (1985) 9(1) Crim LJ 261. information handbooks and pamphlets.bookshop. These may be located in a number of ways. Australian Law Reform Commission reports.gov. Most government publications are now also available in the internet. legislative information.au/> AustLII at <http://www. 274. These include: • • • • • • • • departmental reports.

LAW00051 Topic 9 – Secondary sources – commentary 193 Law reform publications r Textbook N&C [6. of course. however. you could. DX (document exchange). One of the best starting points to locate this information for NSW is online at the Law and Justice Foundation.lawfoundation. parliamentary debates (reported in Hansard). votes and proceedings of both houses (which record the day-to-day business of Parliament). They include: • • • • Bills and explanatory memoranda. Not only do these reports describe the current law.1]. The Federal Parliament website is found at <http://www. they also analyse how well the law is working in practise and provide recommendations for changes to the law. or are related to the proceedings of. Example: Australian Law Reform Commission. See the Style Guide for details. These publications are those requested by. <http://www. as they tend to give a comprehensive overview of the area of law that is the subject of the report. . Citing most parliamentary reports and publications is the same as citing a text. aph.au>. We will be looking at these in more depth later on. consult a telephone book.gov.au>. usually annual. a law list will include such information as names of partners of a firm.net.101]–[6. either or both houses of parliament. Parliamentary publications Parliamentary publications are a type of government publication and are available from the federal and state government publishers. facsimile and telex address. Managing Justice: A Review of the Federal Civil Justice System. street and post office address. Report No 89 (2000) Law lists and almanacs A law list is a publication. To locate a legal practitioner in a particular area. Citing government and parliamentary publications r Style Guide Page 21. AGLC [6. and parliamentary papers (which include various reports mentioned above and which have been ordered to be printed). that provides information concerning solicitors and barristers located in a particular area.118] Law reform publications are an excellent source of information for assignments. telephone. Explanatory memoranda and parliamentary debates assist the courts to interpret legislation. This information can be located by using library catalogues or by accessing the parliaments on the internet.

There are also practice books for the High Court. You should also be aware that many courts post the forms appropriate for their jurisdiction on their websites. Online such a directory is available through the Australian Financial Services Directory at <http://www.martindale. As forms and precedents services are generally looseleaf services. Federal Court. which is produced by the Law Council of Australia and DX Mail (who run the DX system in Australia). will save them time and the client money. Most legal practices will retain earlier precedents they have drafted. There are a number of international law lists. State law lists are as follows: • • • • • NSW Law Almanac. findlaw. Finding non-legal information The relevance of non-legal materials to legal research varies according to the purpose for which the research is being undertaken. they are cited in the same manner as any other looseleaf service. or to new documents if they have not drafted in this area before. South Australian Law Calendar. however. such as Kime’s International Law Directory and Martindale-Hubbell Law Directory.com/>. The inferior courts are the local courts.afsd. Although it is always necessary to ensure that any document drafted conforms to the law as it stands on that day. For example the Federal Magistrates Court has a link to the forms it requires at <http://www. Law Calendar (Vic).gov. independent of Australia Post. Supreme Courts of most jurisdictions and some of the inferior courts. Although it is the same word. .au> or through FindLaw Australia at <http://www. Academic research very often looks beyond legal texts and sources to analyse critically the working of the law and the legal system. a legal practitioner will often need to consult non-legal materials for background information or to better understand the requirements of his/her client. There are two general works on forms and precedents: the Australian Encyclopaedia of Forms and Precedents and Practical Forms and Precedents.fmc.194 LAW00051 – Legal Research and Writing The national law list in Australia is the Australian Legal Directory.au/>.com. you should not confuse precedents of documents with the ‘precedent’ which is to be found in case.au/>. it is of considerable assistance to a legal practitioner to be able to refer to similar documents that have been used before. International Lawyers at <http:// www. magistrate courts and district courts. family law and computing. which contain the forms required by those courts. Looseleaf services often contain precedents for the forms and documents commonly used in the practice of the legal area to which the looseleaf service relates. which is used mainly by legal practitioners. These similar documents are often referred to as ‘precedents’. There are also a number of specialised services containing forms and precedents in the areas of wills. and Western Australian Law Calendar.com. For instance. The DX is a mail system. Forms and precedents services A number of publications contain forms and precedents for assistance to the legal practitioner. recourse to other similar documents. Queensland Law Calendar.

LAW00051 Topic 9 – Secondary sources – commentary 195 Some of the most useful non-legal materials include: • • • • • • • • • • • • newspapers and magazines. you remain detached in the process. and your report accurately reflects the circumstances under investigation. statistical information and much. often you are dealing with human behaviour and thoughts about which factual evidence is difficult to obtain. Let’s focus on the last of these. credit information. historical and biographical information. has prepared the following information to guide you when you are looking for and using non-legal information. One of the best places to start is of course the Southern Cross University Library. newspapers. scientific. to help us to explain some key features of finding and using non-legal materials appropriately. searching in the catalogue and relevant journal abstracting databases. The Southern Cross University Library’s Online Resources site provides links to useful websites that will be of great assistance here. and quotations and proverbs. industrial and other specialist textbooks. but you. designs and motifs can be used. questionnaires. Brian Gaffney. scientific. Let’s assume that you are asked to investigate the protection of Indigenous Australian designs and other artworks in the clothing industry. for example. Let’s look at an example for a moment. including access to newspapers. much more. medical. for you to prepare a report based on material gathered solely from popular magazines or the tabloid press. medical. and the opinions of those in the clothing industry about the protection of Indigenous Australian artworks. magazines and other media reports. the researcher. There is no hard and fast rule here. company information from the Australian Securities Commission statistics. in order to prepare a report to recommend changes to the law. a former employee of Southern Cross University. You can access all of these from the Library website. current practices in the clothing industry relating to the use of Indigenous Australian artworks. the opinions of Indigenous Australian artists and community members about the appropriate ways of protecting their artworks. The last three require non-legal materials. The type of information that you may be looking for could include: • • • • the Indigenous Australian laws that define the way in which artworks. For this reason. conference and seminar proceedings. Looking for and using non-legal information When you are looking for non-legal material in your research. must accept responsibility for the accuracy of your . geographical and survey information. it is essential that care is taken to ensure that: • • • you carefully evaluate the creditability of your source before you accept the accuracy of the data or thesis it is presenting. surveys and interviews. industrial and other specialist journals. It would be most unusual.

This not only ensures that the data you obtain is more accurate. most commonly. you must interview people who can provide the information you need. The results may be analysed either by descriptive statistics or inferential statistics. it will not be possible to interview all of those involved in the clothing industry. The interview Generally. Briefly. in our example. 4. This will involve qualitative research by undertaking personal interviews to collect the necessary data. then you need to adopt a ‘random sampling procedure’ that will select a small number from that ‘population’ and which statistically might be expected to reflect accurately the attitudes of that ‘population’. First. . Another common way of obtaining data from people is through surveys. your questions should not suggest the answer desired and/or you should not lead the person being interviewed to the result you want to obtain. 3. it is important to prepare the questions asked in a detached manner – that is. you will need to interview retailers and others involved in the clothing industry in order to discover their attitudes towards the use and protection of Indigenous Australian artworks in the industry. and allow the person being interviewed or surveyed to define their own response. To help with this planning. At this stage you need to decide how the data will be analysed and presented. but also protects you (in part) from criticism by those who disagree with your conclusions. on the other hand. establish the exact purpose of your research and list the objectives that must be reached in order to serve that purpose. If this is so. In our example. Then the data can be compiled to analyse how often certain responses have been selected. The data will be compiled to provide a representation of the range of responses obtained and is not necessarily assessed purely by a numerical or statistical method. this type of research needs careful planning. Next you need to identify just who should be interviewed. interviews enable you to obtain both quantitative and qualitative data. which are then used to generate a statistical profile of opinions or behaviour. This is necessary to ensure that your final report is meaningful. Research design The success or otherwise of your research depends on how well planned it is. as well as the level of awareness within the industry of Indigenous Australian values and laws that apply to artworks. Then you need to prepare the questions that will elicit the information you need to achieve these objectives. In our example. However. it is often the case that the data you need is not available from these published sources and you have to collect your own. Contrary to what you might think however. To do so. you might consider the following guidelines: 1. For instance. In either case. 2.196 LAW00051 – Legal Research and Writing findings. many of you questions will be designed to determine attitudes to Indigenous Australian art. Qualitative data. Identify which of these can be achieved in your interview. quantitative data is obtained where your questioning asks the person being interviewed or surveyed to select from a range of pre-determined responses. is obtained when the interview or survey questions are open-ended. Many of the questions will be open-ended so that a full range of attitudes can be established.

LAW00051 Topic 9 – Secondary sources – commentary 197 5. a chapter by Eleanor Bourke in a book that was edited by Colin Bourke. general cases concerning negligence of the owners of wild animals. the courts and mediation – a warning. This is when you carefully prepare your report. their title/position (Where they are located (if relevant) or form of interview. of course. an article in the Sydney Morning Herald 25/2/93 on page 4 called ‘Trust to manage the Hawkesbury river. Eleanor and Bill Edwards in 1994. Images and Realities. Their book is called Aboriginal Australia. Manager of General Law Section. date of interview). 1986. report number 31. non-legal textbooks are cited in exactly the same way as legal textbooks. a detailed explanation of the term ‘mononucleosis’. using the results of your interviews to support your conclusions and any recommendations for change. Very often. which was published in 2010. Sydney. and the layout of an affidavit. the DX of a solicitor in Wagga Wagga. the meaning of ‘epistle’. such as the interview. Legal Aid Commission of NSW (Telephone interview. 23 January 1995) Activity Turn to the Workbook. Australian Law Reform Commission. AGLC Chap 6. the meaning of ‘overdue’ as considered by the courts. page 20 of the sixth edition of understanding the Australian legal system by John Carvan. comes after your data is analysed. an article by Sir Laurence Street published in 1987 in volume 67 of the Australian Law Journal at p 492. an article by Sarmas in the Melbourne University Law Review. The final stage. the non-legal information you refer to is unpublished. a detailed discussion of contempt of court. For instance. Citing non-legal information Most non-legal materials can be cited in the same way as most of the legal resources to which we have referred. r a a Style Guide Pages 20–21. the names of the partners of a law firm in Amsterdam. For example: Interview with Ben Slade. Revision activity (a) Why do we use secondary sources of law? (b) In which type of secondary material would you look for the following? • • • • • • • • • • • • • • • • the meaning of ‘de jure’. Complete the exercises set for Topic 9. The Recognition of Aboriginal Customary Laws. (c) Cite correctly the following: . Interviews should be cited as follows: Interview with name of person interviewed. ‘Problems in evidence law’ by S Mason and from page 68 of Legal consequences of new technology. published in 1991.

Department of Prime Minister and Cabinet.1994). and the 82nd report published in 1996. • • • f Feedback to revision activity (a) We use secondary sources of law to locate primary sources. E Bourke. 25 February 1993. (c) The correct citations are: • . L Street. The Process of Law in Australia (Butterworths. in this case. Understanding the Australian Legal System (Thomson Reuters. J Carvan. ‘Crime Statistics’ in G Bird. H Watchirs. 4. in the 17th volume. published in 1992. textbook or digest a standard dictionary a Judicial dictionary an international law list a textbook a technical dictionary. Sydney Morning Herald (Sydney). an article in a book by Greta Bird called The Process of Law in Australia. ‘The Courts and Mediation – a Warning’ (1987) 67 Australian Law Journal 492. Aboriginal Australia (University of Queensland Press. Aboriginal Customary Laws: Report on the Commonwealth Implementation of the Australian Law Reform Commission’s Recommendations (1994). ‘Images and Realities’ in C Bourke. the index to that journal if available. 1994). (b) You would look in the following: • • • • • • • • • • • • • • • • • • • a legal dictionary (means ‘by right’) a law list or almanac a legal encyclopaedia. a medical dictionary (means glandular fever) as you know the journal. Australian Law Reform Commission (or ALRC). or to locate background information to assist in our legal research or to understand the requirements of our client. published in 1994. It is called Aboriginal customary laws: report on the Commonwealth implementation of the Australian Law Reform Commission’s recommendations. by the Australian Law Reform Commission entitled ‘Integrity: but not by trust alone’.198 LAW00051 – Legal Research and Writing • an article which begins on page 23 of the Alternative Law Journal called Sex and HIV: sleeping with the enemy?. S Mason. ‘Sex and HIV: sleeping with the enemy?’ (1992) 17(1) Alternative Law Journal 23. Report No 31 (1986). P O’Malley. (eds). Report No 82 (1996). ‘Trust to Manage the Hawkesbury River’. ‘Problems in Evidence Law’ in Legal Consequences of New Technology (1991) 68. Integrity: but Not by Trust Alone. E Bourke and B Edwards. otherwise consult a general index to periodicals. 2010) 20. a report by the Office of Indigenous Affairs. Australian Law Reform Commission. issue number 1. an encyclopaedia of forms and precedents. by Helen Watchirs. Dept of the Prime Minister and Cabinet in 1994. Office of Indigenous Affairs. The Recognition of Aboriginal Customary Law. The article is by Pat O’Malley and is called ‘Crime statistics’. 6th ed.

LAW00051 Topic 9 – Secondary sources – commentary 199

Online support
You will find that some databases provide guides and tutorials that will help you learn what is available on the database and how to conduct searches: • • Legal Online (LawBook) – select ‘Help’ and browse the many guides and online tutorials available LexisNexis AU – select ‘General’ from the top tool bar and browse the list under the heading ‘View Tutorials’. Also note the ‘How do I … ?’ list on the left of the screen in the Cases, Legislation, Commentary and Journals folders. You will also find that the ‘Help’ menu provides very useful information.

Further reading
Campbell, E, Poh-York, L and Tooher, J, Legal Research Materials & Methods (LawBook, 4th ed,1996) 10–14 Hutchinson T, Researching and Writing in Law (LawBook, 2nd ed, 2006) Kerr, P, Hoyle, A and Gilchrist, J, An Introduction to Legal Resources on the Internet (Crucial Briefs Legal Research Services, 2000) Milne, S and Tucker, K, A Practical Guide to Legal Research (Thomson Reuters, 2nd ed, 2010) Watt, R and John, F, Concise Legal Research (Federation Press, 6th ed, 2009)

200 LAW00051 – Legal Research and Writing

Topic 10
Secondary sources – updating
What we’ll do in this topic
In this topic we will be looking at secondary sources again, but the purpose is to look at how information can be brought up to date. To provide a mental diagram, in the previous topic we looked at how to find a breadth of knowledge, in this topic we look at depth and how to ensure currency. Accordingly we will look particularly at how to use digests and the accompanying current awareness services. And because both of these research tools are ‘related to’ the Legal Encyclopaedias, we will review our knowledge of them as well. Together with digests and the current awareness services, legal encyclopaedias form an integrated research system. We will also look at how to cite these secondary sources.

Objectives
At the completion of this topic you should be able to: • • • • understand the value of using secondary sources, particularly digests and current awareness services, to locate primary sources of law; understand the importance of ensuring the currency of all legal information; understand that digests and current awareness services are research tools that allow you to update your legal information and know how to use them; and cite digests and current awareness services correctly.

The importance of updating
All law needs to be up-to-date. It is simply not good enough to rely on primary or secondary sources of law that could be out of date. Old law is not necessarily good law! In fact, it may no longer be law! Parliaments have a habit of passing new legislation (or amending or repealing the old) and courts consider important cases in later proceedings – all of which can lead to significant change in the law. Commentary (in a journal or text for instance) that relates to the old act or overruled case may or may not be relevant. Textbooks and other hard-copy materials are subject to publishing lag. Even electronic databases are only as good as the last date on which they have been updated. So, no matter what your source of information, whether it is hard copy or electronic, check the currency. AustLII, for instance, provides this information at the beginning of each database. LawOne (TimeBase) and LexisNexis AU has a tab entitled ‘Currency’. Look for the currency information – always.

201

202 LAW00051 – Legal Research and Writing

Legal encyclopaedias

r

Textbook
Look again at N&C: [6.126]–[6.154] – Halsbury’s Laws of Australia [6.155]–[6.181] – The Laws of Australia

As we learned in our earlier topic, a legal encyclopaedia differs from a digest in that it gives a discussion of a topic of law, with a brief reference to the most relevant cases and/or legislation. A legal encyclopaedia may not always provide the most current relevant authority for a particular point of law or a legal principle. For that reason, for both Halsbury’s and The Laws of Australia, it is essential that you check the currency of the information being provided. For instance, if the information being provided is only current to 1988, it is essential that you look for more recent developments. As we noted earlier, information in: • Halsbury’s Laws of Australia is cross-referenced to and can be updated using Australian Current Law (ACL – Reporter and Legislation). Halsbury’s is updated by reference to the ‘Cumulative Halsbury’s Updating Table’ in the latest issue of Australian Current Law. The Laws of Australia is cross-referenced to and can be updated using the Australian Digest and the Australian Legal Monthly Digest (ALMD). The Laws of Australia has been designed so that you can trace information from it back to the Australian Digest and the Australian Legal Monthly Digest (ALMD), and vice versa – using the index called ‘Noter Up’. This is useful to assist in gaining more detailed information and also to up date the information in the encyclopaedia.

Digests
A digest of law is a collection of summarised cases, which are collated according to specific subject categories. In this sense it differs from a legal encyclopaedia which gives a broad and general discussion on a particular area of law, with reference to relevant authorities. The digests are the primary research tools in finding case law. Generally speaking, digests summarise or digest (or abstract) the important elements of individual decisions of the courts, with brief subject headings. These case summaries are slotted into broad subject headings or catchwords, which are then broken down into smaller subject categories. The two Australian digests of law (available in hard copy or online) are: 1. 2. The Australian Digest (accompanied by the Australian Legal Monthly Digest (ALMD)), and Australian Current Law (ACL) (which is available in two volumes – the Reporter and Legislation). This digest is both a digest and a current awareness service. We will look at Australian Current Law under the section ‘Current awareness services’.

The Australian Digest (‘the Digest’) covers Australian law right back to 1825. Generally speaking, this Digest should be used when researching long established areas of law, such as contracts for sale of goods. On the other hand, if you are

As well as the complete ‘green-band’ set of main text volumes. . it digests cases from Scotland. rather than merely relying on the description of these sources provided in the digest itself. and so we will not be dealing with them. This is because they are mainly used as finding tools – to help us locate the citation of primary source material – rather than being themselves the source of information. the Consolidated Index. The information in the Digest is categorised according to broad subject headings.23]–[8. which is published monthly. The Continuation Volumes cover cases and supplementary materials from 1971 to 1985 and 1986 to 1990. The hard-copy version is published in a looseleaf format. which before 1982 was entitled The English and Empire Digest. they can be cited in the same way as legal encyclopaedias. statutes. a key and research guide. Australian Digest – hard copy Hard copy The Australian Digest (‘the Digest’) is currently in its third edition. and the table of cases. which is a fortnightly newsletter. a consolidated index. the Annual Cumulative Supplement and two Continuation Volumes. The cases contained in each title are further organised into more specific areas. This is a comprehensive service that purports to summarise all cases from the earliest days of English legal history. The Cumulative Supplement keeps the main volumes up-to-date by extending the Consolidated Tables and by indicating where the text of the main volumes has been changed by subsequent developments in the law. often it is not necessary to cite the information you locate from a legal digest. known as titles. you are able to find summaries of some Australian decisions. and each of these areas is given a number in square brackets. and secondary sources located using a digest. However. Please note that when we refer to the Digest. the ALMD and Australian Current Law are more appropriate. The Digest was first published in 1919 and the edition is known as the ‘green-band’ edition. there are the Consolidated Tables of cases and legislation. The first and second editions have been superseded. As well. ‘the Greenhouse Effect’) the current awareness services. [ ]. The Australian Digest r Textbook N&C [8. and the ALMD Advance. Citing digests As digests tend to be published in a format similar to legal encyclopaedias. we are using a shorthand description of the Australian Digest.30]. The Digest It is necessary to briefly mention the English publication called The Digest. The Digest is made up of several parts: the volumes of the third edition. and are not referring to the English and Empire Digest.LAW00051 Topic 10 – Secondary sources – updating 203 looking for recent cases. The Australian Digest is kept up to date by the ALMD. As a result. Ireland and the former British Empire which have relevance to English law. or the topic is recent (for example. which are listed in the Key and Research Guide. It is always good practice to locate the original versions of the cases. with updating supplements (the yellow pages) filed at the end of each subject category.

such as ALMD or Australian Current Law. the Australian Digest system – which adds the Australian Legal Monthly Digest and the ALMD Advance. the Reporter. the ALMD and the Australian Case Citator.195]. In that case. Australian Current Law – Legislation and Reporter r Textbook N&C [6. We will look at FirstPoint under ‘Current awareness services’. ACL electronic. Subject Index to each title – this is located at the end of each title. which is published fortnightly. This tells you the date up to which cases have been included. which is described as a comprehensive case law online research tool. Each title of the third edition contains a currency date. The Reporter summarises reported and unreported cases. and Contents page of each title – if you know which title is relevant. Australian Current Law (ACL) comes in two parts.212]. The currency date can be a time-saver when researching a particular topic. Current awareness services r Textbook N&C [6.184]–[6.183] As you have read in N&C. They are not individual online products. depending on what you are looking for. which is published monthly. which is further broken down by jurisdiction and a running number allocated to each . as your general knowledge may tell you that a particular topic didn’t exist when the volume was printed. and Legislation. Consolidated Index – a comprehensive subject index. You will need to become familiar with the main current awareness services which are: • • the Australian Current Law system (Legislation and Reporter) – available in hard copy and electronically. There are a number of methods of accessing the information stored in the Digest. [6. you would be better starting your research with a more recent publication.196]–[6. Electronic Online searching for the Digest and the ALMD is quite different from searching the hardcopy.204 LAW00051 – Legal Research and Writing The title and square bracket number remain the same for all cases on a particular topic. current awareness services are the research tools used to bring our research up to date. It combines the Digest. We will go into this in more depth in later Topics but generally you can access the Digest using the: • • • • Key and Research Guide – a combined contents and abbreviated subject index. For example. These cases are slotted into a list of subject headings.182]–[6. and are your guide to updating the Digest through the supplements and the ALMD. The online version is called FirstPoint which also includes the Australian Case Citator. ACL hard copy. The Digest and ALMD are part of FirstPoint. there would be little use researching AIDS in a volume published 20 years ago.

Follow the exercise at [6. This index is updated quarterly. in New South Wales and case number 3 for that topic and jurisdiction. however. FirstPoint ALMD is a monthly publication for updating cases and legislation. although some titles may include unreported cases and there may also be some English cases which are considered relevant to Australian law.195] (using the ACL Reporter hard copy). that the ACL is only available in hard copy up to 1996 in the SCU library. and in later topics we will look at them again to learn more ways to use them in our research. proclamation. Australian Current Law is available electronically. using the same titles and square bracket numbers used in the Digest. through LexisNexis AU. reprinting and repeal of Acts. we will look generally at these services. ALMD and [8. generally you will not need to use the older version. You will. tables and the ‘Cumulative Updater’. Please attempt this activity the next time you visit the library. There are bound consolidated indexes for the years 1975–1985. however. which refers to subject heading No 15. electronic) and [6.LAW00051 Topic 10 – Secondary sources – updating 205 case.20]. The cases are summarised in the ‘Digest of Law’ section. As the index is cumulative.210]–[6. For example. be able to work through the exercises at [6. You should note.206]–[6. Australian Legal Monthly Digest (ALMD). so a careful reading of these paragraphs is necessary. You should note however that the ‘Cumulative . It mostly contains reported cases. The Legislation pamphlet provides information on Bills. amendment. To begin with. it is only necessary to refer to the most recent index for that year. 1986–1990 and 1991–1994 but.209] (ACL Reporter. so that it is necessary when using the index to also check for the supplementary index contained in the front of each Reporter. You should note that until 1990 this service was published in a looseleaf format and the methods of use are therefore different. It is FirstPoint that you are most likely to use. electronic). However. as the Australian Current Law is recommended for searching recent cases and topics.214]. and the assent. Current awareness services have a wide range of uses to assist us in our research.213]–[6. for the most part. so it may not be possible to do this exercise at SCU using hard-copy materials. a case may be listed in the index as 15 NSW 3. Australian Current Law is best used for current developments in the law.212] (ACL Legislation. a Activity Work through the exercises towards the end of N&C Ch 6. A separate Consolidated Index and Tables accompanies the Reporter and it contains a cumulative index. Agency. A Cumulative Tables accompanies each monthly part and contains indexes.16]–[8. The Australian Legal Monthly Digest (ALMD which is now part of Legal Online’s (LawBook) FirstPoint database along with the Australian Digest and Australian Case Citator in the one product) is available from the Southern Cross University library website. the ALMD Advance and FirstPoint r Textbook N&C [6.

If you are using the hard-copy version and you already know your title and square bracket number. If you are commencing a new search in ALMD. complete the exercise online). Make a list of the tables contained in each that are relevant to locating information about legislation.18] (subject searching in FirstPoint). locate both the ALMD service and Australian Current Law. (b) Using either FirstPoint or the Australian Digest and updating with the ALMD and ALMD Advance if you are searching using the hard copy. Do the same exercise using Halsbury’s Laws of Australia. so that you only need to refer to the latest index when updating the Digest. locate cases on the following topics: • • • a case which determines who a salvor is. work through the exercise in N&C at [8. Revision activity (a) Using one of the legal encyclopaedias (in hard copy if you have access to a law library and. with the ALMD and the ALMD Advance. locate the citation of a case on the following topics: • • • • promissory estoppel in contract law. Complete the exercises for Topic 10. when that shock is not accompanied by physical injury. a recent case which determines the place where a contract is made. and the defence of self-defence to a charge of murder (the crime of homicide). ALMD in hard copy is not directly ‘translated’ into its electronic equivalent. Repeat this exercise using Australian Current Law. 3. Again repeat the exercise online. and a recent case which discusses nervous shock. . if not. Now update the information using Australian Current Law. It is not possible to update legislation using this product The very useful legislative tables have been left out – deliberately. when acceptance is by fax. Disappointingly. you need only to turn to the relevant titles. If you have access to a law library. Activity Turn to the Workbook. The method of accessing ALMD online is explained above – it is part of FirstPoint. use the ‘Cumulative Index’ in the latest edition of the Cumulative Tables. a a a Activity Using FirstPoint. update the information you have found in the Australian Digest. special measures in anti-discrimination laws. the use of copyright law to protect Indigenous Australian intellectual property rights. Now repeat this exercise online.206 LAW00051 – Legal Research and Writing Updater’ is cumulative for all case references since the publication of the latest supplement for each title. If using The Laws of Australia.

R and John. 17 and 18 Dayal. S. Concise Legal Research (Federation Press. J. Your Guide to Electronic Legal Research (Butterworths. 15. 16. 4th ed.1996) particularly Chs 14. 2000). Legal Research Materials & Methods (LawBook Co. E Poh-York. 2009) Ch 5 . L and Tooher. F. e-law research.LAW00051 Topic 10 – Secondary sources – updating 207 Further reading Campbell. Chs 5 and 7 Watt. 6th ed.

208 LAW00051 – Legal Research and Writing .

You need to read and digest all of it. This case was reported not only in the Commonwealth Law Reports (CLR) but also in the Intellectual Property Reports (IPR). you should be able to: • • • • • • identify the content and use of the major research tools used to locate case law. An example of this is: Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88. find cases in which an earlier decision has been considered to update cases.Topic 11 Finding and noting up cases What we will do in this topic In this topic. There are a number of approaches we can use to do so. As a preliminary matter you should refer to Topic 5 to refresh your memory about case law. 209 . Citing cases r Style Guide Pages 15–16. AGLC Chap 2. find cases by subject. Case law and how to find it As you will remember from Topic 5. find cases that have considered the meaning of words and phrases. as well as the secondary sources that assist us to locate cases. case law is a primary source of law in Australia and it is recorded in texts known as case reports. and find casenotes and articles to help understand cases. find cases by name. we will learn the techniques used to locate cases. Thus one report series follows the court and the other the topic. Cases may also be reported in different report series that are produced for a particular court or about a particular topic. Even though it is long. Objectives On completion of this topic. 18 IPR 443. which we will look at. it contains invaluable information about how to find case law. You should also note that the relevant N&C chapter here is Chapter 8.

importantly we should add two very valuable online resources to this list: • • CaseBase – through LexisNexis AU. • • • Many of these are available in both hard copy and electronic format. You will need to be able to understand these in order to locate cases in hard copy. such as Australian Legal Words and Phrases. the Australian Case Citator.5] There are several different approaches to finding case law. but. take particular notice of the abbreviations used for the various law reports given in Reading 11. The Laws of Australia and Halsbury’s Laws of Australia. For example. ALMD and ALMD Advance and Australian Current Law. Those relevant to researching case law are: • • • the digests and current awareness services. and KeyCite – through WestLaw Finding case law generally r Textbook N&C [8. If you know the name of the case. it is a fairly simple method. tends to be finding a case by subject.1 A Stuhmcke.the Australian Digest. In this instance. Legal Referencing (LexisNexis Butterworths. 1990–1994 annotators. Two other citators are also available: • • LawCite – through AustLII. the Australasian Case Law Digest. It is more common to find case law through the use of secondary materials. 3rd ed. The one you should use will depend on how much you already know about the case. and/or your reason for trying to locate it. . however. you would look for relevant cases under the subject headings of ‘Animals’ and ‘Negligence’. however this method is fairly limited. and looseleaf services. the legal encyclopaedias.210 LAW00051 – Legal Research and Writing r Reading 11. as well as to understand the information that you locate using secondary finding tools. the citators. The more common method. digest and current awareness services and as such will probably be your first port of call when researching case law.1.1]–[8. and FirstPoint – through Legal Online (LawBook) Both of these databases are a combination of citator. and the Australian and New Zealand Citator to UK Reports. you may wish to locate a case that discusses the liability of an owner of animals who have escaped from their paddock due to the negligence of the owner. 2005) Appendices 2 and 3 When reading this material. Australian Current Law. The conventions adopted by our Law School are summarised in the Style Guide. judicial dictionaries. Secondary sources and finding tools It is possible to find case law through the use of the indexes to the law reports themselves.

by finding out whether or not it has been judicially considered by a court later in time. You may wish to locate cases by finding words and phrases judicially considered. you will locate every occurrence of that case. including those when the decision has been considered by another court. but unless you limit your search terms to the case name field. you would need to consult a hardcopy citator by looking up the name of the first party in the alphabetical listing. as well as finding casenotes that provide a discussion of the case. the parties. Questions may have been raised about a document a client has executed under seal. Finding cases by name/citation r Textbook N&C [8. you can simply go to the relevant volume of the appropriate law report. however. The most comprehensive citator is the Australian Case Citator and is therefore the best place to start. A further approach is to locate cases by finding an earlier decision judicially considered. that is. In these circumstances. In that case. and select the correct volume. You may also need to find any unreported decisions that are relevant to the topic. You might then need to locate any decisions where the courts have considered the meaning of ‘under seal’. This approach is used where you have identified a case (authority) that states the proposition relevant to your research inquiry.LAW00051 Topic 11 – Finding and noting up cases 211 Another approach is to locate a case by finding legislation judicially considered. . Sometimes. Now we’ll look at each of the above approaches in turn. you may need to locate a case that discusses the requirement that an express trust. you may know the name of the case. For example. Hard-copy methods If you know the name and correct citation of a case. the best place to start is in CaseBase or FirstPoint (which incorporates the Australian Case Citator) or one of the other citators mentioned above. but not the remainder of the citation of the case. turn to the page. and you will locate the case. Remember that this publication comes in a number of bound volumes and a looseleaf volume. A catalogue search would enable you to locate the law report series on the library shelves. If you are unsure of the date.55] Computerised methods Without doubt. What you need to find out is whether or not that case is still good law. For each. it is wise to start looking in the most current volume and work backwards. We will look at how to locate cases that judicially consider legislation in the next topic. You can search for the parties’ names in any relevant case law database. how that court treated that case. you would look for cases in which the courts have considered the meaning of the Conveyancing Act 1919 (NSW) s 23C. must be in writing. we will describe the method using electronic sources first. and if so. and then the hard copy method. which disposes of an interest in land.

You will remember these from Topic 8. if you are sure of the jurisdiction. may locate only five cases. Remember that computers only perform literal searches of your search terms.10]–[8. we locate relevant case law by searching by subject. Start with proximity of about 15 words apart. you may be using either full text databases or the electronic versions of a digest or encyclopaedia.15]. FirstPoint. say nine words of each other.212 LAW00051 – Legal Research and Writing Apart from the citators. (Note the list given in N&C [8. In a full text database. Remember to select the relevant database or field if you wish to limit your search to a particular jurisdiction. and then adjust your proximity connector accordingly.11]–[8. as each digest of a case is considered a complete record.79] Most commonly. Computerised methods When searching for cases by subject.55]) Finding cases by subject r Textbook N&C [8. proximity connectors are not as important. [8.61]–[8. Using an ‘and’ connector may find you hundreds or even thousands of cases which match your search terms. digest or current awareness service.20] Searching full text electronic case law databases including AustLII [8. . as you do not have to read through hundreds of results to find relevant cases. it is important to use proximity connectors to increase the relevance of the information you find. check the cases you locate for relevance. [8. There is no hard and fast rule when using proximity connectors – it is usually a matter of trial and error. all of which are relevant. but do not narrow it so much that your search misses possible relevant cases. or in the specialist law reports. whereas refining your search by using a proximity connector to place your search terms within. and AustLII. you can also look in the consolidated indexes to the jurisdictional law reports. Westlaw.16]–[8. it is essential that you think of all the possible search terms and how to best truncate them before you commence your research.21]. When searching on a database. You could also try a legal encyclopaedia. Narrower proximity usually means greater relevance. CaseBase. if you are sure of the topic. Legal Online (LawBook). Searching more carefully saves time. Full-text databases are contained in: • • • • LexisNexis AU and International. such as the digests. In databases that do not contain the full-text of decisions.

72] – for locating Australian case law using Lexis. the Australian Digest. com. . Activity Work through the exercises in N&C at [8. Of course.the ALMD and ALMD Advance. It is possible to search by subject as well as by case name or citation.17] – Conducting a simple search and at [8. Westlaw Australia Textbook N&C [8. LexisNexis International (lexis. including full-text case law.18] subject searching.LAW00051 Topic 11 – Finding and noting up cases 213 Relevant databases LexisNexis AU This comprehensive database allows you to subject search within Australian Current Law – Reporter or CaseBase. If you are searching for Australian case law it is best to use LexisNexis AU for all the obvious reasons. the strength of your search depends upon what search strategy you employ. According to the publisher. ACL – Reporter or the Australian and New Zealand Citator to UK Reports. LexisNexis AU provides the full text of many of the cases that you might find. Activity Work through the steps in N&C at [8. FirstPoint now contains the Australian Case Citator. (Remember you must access this database from the SCU library database page. FirstPoint. Starting at the homepage you will note that there are various ‘tabs’.72] This is a large international service with an emphasis on materials from the USA. but if you are searching for international materials this is an excellent and comprehensive resource.com) Textbook N&C [8. Activity Work through the exercises in N&C at [8.75] – Using Westlaw Australia to find cases on defamation in the media.14] – Conducting a simple subject search in CaseBase. both in FirstPoint. If you click on the Case tab you can then search across Casebase. You can also refer to various indexes and tables or even find international cases. a r a a r a Activity Work through the exercise in N&C at [8.74] and [8.73] This full-text database contains case reports (and unreported cases) from all Australian jurisdictions.) Legal Online (LawBook) Legal Online has incorporated a number of case research products into its citator. including ‘Cases’.

In 2009 AustLII released the first public citator. Apart from the Digest. LawCite is automatically maintained. It is also possible to scan the table of contents at the beginning of each title to find your square bracket number. such as ‘Taxation’. As a fully automatic system. Remember to note the title and square bracket number. such as ‘Time’. particularly for very recent decisions. It is suggested that this should only be considered for titles that cover small areas of law. such as ‘Administrative Law’. It is possible to search the Digest in either hard copy or electronic format. Although the citator is still under development it is an excellent resource which already contains more than 3 million case records. Once you have chosen the volume.78] This database contains full text ‘medium neutral’ judgments for all Australian jurisdictions. It simply records the citation of all decisions and journal articles that have considered an earlier case. law reports indexes or looseleaf services. that is. the legal encyclopaedias. The index will refer you to the volume and the paragraph number in that volume. you may also wish to look in the other digests. although do not underestimate your own knowledge or ideas about where to start.214 LAW00051 – Legal Research and Writing AustLII r Textbook N&C [8. However. which digests all major case law since 1825. LawCite.23]–[8. Remember that the electronic versions of the Digest can be used in much the same way as the hard-copy version by searching through the ‘Table of Contents’.30] The primary starting place is the Australian Digest. visit AustLII and browse LawCite Hard-copy methods Textbook N&C [8.78] – Searching for cases on negligent driving in AustLII. The Australian Digest The starting place for research is either the Key and Research Guide or the Consolidated Index. Also. LawCite does not provide information about how cases have been subsequently treated. but not for titles that cover large areas of law. If a title suggests itself to you.77]–[8. a r Activity Work through the exercise in N&C at [8. The titles are printed clearly on the spine of the volumes. there are no editors. It is a very valuable resource but you should be aware that reported cases are preferred over medium neutral ones.76]–[8. . unlike the other citators. go directly to the volume on that subject. as the inclusion of ‘See References’ assists in locating the appropriate Title within the Digest. Some people prefer the hard copy version. turn to the index at the back of the required title in the third edition volume and look for your keywords.

Turn to the paragraph number and check the case for relevance as above. in its looseleaf format. the main work is updated by a supplement. Therefore the steps that you follow to access and update information using the Digest are: 1. Please remember that the index is cumulative for that year and it is only necessary to consult the latest index for that year. 2.LAW00051 Topic 11 – Finding and noting up cases 215 The Key and Research Guide contains an alphabetical list of all titles used in the Digest. Updating the digest in hard copy sounds complex. check the Title and square bracket number in the ALMD by referring to the ‘Updater’ of the latest Cumulative Tables. locate your main title(s) and square bracket numbers using the Key or Consolidated Index. which contains comprehensive cross-references and which will refer you to the title and paragraph number. printed on yellow paper. is relatively simple. Update these volumes by referring to the yellow supplement at the back of the Title and then check your Title and square bracket number in the ‘Updater’ in the Consolidated Tables of ALMD. and then note any relevant cases. check this information in the main volume(s) of the Digest. consult the General Index of ALMD. In the supplement. Updating the Digest in hard copy Updating the third edition of the Digest. However. usually once a year. . These supplements are cumulative and are replaced when necessary. which will direct you to a particular monthly issue. this will refer you to specific years and monthly issues of the ALMD. From there. In this edition. look for the square bracket number you located in the main Title. 5. Once you have found your Title and square bracket number. 3. and check ALMD Advance for any recent cases in the last few months. 4. a key to the works. It should be remembered. The Key contains a table of contents for each title in the third edition and refers you to the volume and page number. it will be necessary to consult the ‘Consolidated Index’. check the square bracket number in the yellow supplement at the end of the Title. and in most instances. that the Key is simply that. Australian Legal Monthly Digest If you are searching for very recent decisions. which is located at the back of the main title. Do not be concerned if you are confused after reading these instructions. go to the relevant volume and check the cases there for relevance. Finally you turn to the ALMD Advance. Finding your title and square bracket number is the most important part of using the Digest to find cases by subject. They also have a currency date on their title page. The index will refer you to the paragraph number. which contains recent cases using the same Titles (although not the square bracket numbers) as the Digest. The paragraph numbers are clearly indicated on the cover or spine of the issue. however. you go to the latest issue of ALMD and look up your title and square bracket number in the ‘Cumulative Updater’ in the latest issue. You should be prepared to spend considerable time checking all cross-references and using your own powers of lateral thinking to ensure that you have located the correct Title or Titles and square bracket numbers. which edition to use and cross references to other titles. if you follow the steps when you visit a law library you will find it is actually quite easy.

25] and [8. and which will refer you to the issue number of the Reporter. You will find that the subject indexes in these volumes are often very comprehensive. ACL hard copy. Looseleaf services If there is a looseleaf service relevant to your particular area of law. check the subject index in the consolidated index for the series. which will refer you to a volume and page number.39] Computerised methods The Australian Legal Words and Phrases is available online through LexisNexis AU – click on the ‘Dictionaries’ tab. ACL electronic Refer to the Consolidated Index which contains cross-references. Australian Current Law Textbook N&C [6. Legal encyclopaedias Both of the Australian legal encyclopaedias have a Consolidated Index that will refer you to a title or subtitle. Law reports If there is a series of specialist law reports on the topic you are researching.29] the next time you visit the law library. CaseBase is another appropriate tool. These indexes are published at regular intervals but may not always include all titles published. In the field box ‘Words and Phrases’ enter your search. Check the cases for relevance. as well as the case reference.184]–[6. Having read the discussion of the particular area of law. Finding cases that have considered the meaning of words and phrases r Textbook N&C [8. which will refer you to a page number. If a title has suggested itself.195]. . check the general index in the main work. These will refer you to a paragraph number.209]. note the cases and check them for relevance. and paragraph number.216 LAW00051 – Legal Research and Writing a r Activity Follow the steps in N&C at [8. Check cases for relevance. refer to the index located with that title.196]–[6. Please attempt this activity the next time you visit the library. or the subject index if the work has an accompanying ‘Cases’ volume or part. Then check the subject index in any volumes published since the consolidated index. [6. Remember that it is necessary to check the supplementary index in the latest issue of the Reporter.

Its use is the same as for Australian Legal Words & Phrases. Legal encyclopaedias Both The Laws of Australia and Halsbury’s Laws of Australia list words and phrases in their index volumes. The Australian Digest Refer to the list of ‘Words. This will refer you to a year or issue number and the case reference. and will list the case name and citations. Don’t forget to check the accompanying supplement. Phrases and Maxims’. Click on the ‘Show more fields’ button to reveal the appropriate box and then enter the search term. Australasian Case Law Digest Consult the section of words and phrases judicially considered. . Law reports The subject index of a series of law reports may include words and phrases judicially considered under the heading ‘Words’. Phrases and Maxims’ in the Master Volumes 1960–1980. under the heading ‘Words’. Check the summary and the case for relevance. Words and Phrases Legally Defined This is a UK publication. Australian Current Law A list of words and phrases judicially considered is contained in the Consolidated Index. Check the cases for relevance. Check the summary for relevance. which will refer you back to the case summaries. and if the case is worth noting. and finally the Key and Research Guide for 1987 onwards. check the case for relevance. which will refer you to a paragraph number. In The Laws of Australia. Hard-copy methods Australian Legal Words and Phrases 1900–1994 This work contains an alphabetical list of words and phrases judicially considered. Check the summaries and then the case for relevance. Australian Legal Monthly Digest The Cumulative Tables of ALMD contain a table of ‘Words. then the 1986 Annual Supplement for the period 1981–1986. the ‘Words and Phrases’ section is alphabetically listed in the Consolidated Index and in Halsbury’s there is a ‘Words and Phrases Index’ contained separately in the Index volume.LAW00051 Topic 11 – Finding and noting up cases 217 FirstPoint allows for a search of ‘Words and Phrases judicially considered’. yet it does include a section on Australia. Caution should be used with these however as they only have limited coverage of words and phrases contained within the volumes that have been published.

) Once the relevant case has been found click on the case name. these are: • • • • FirstPoint which incorporates the Australian Case Citator. But there are other ways too which are equally as effective. For this reason.48] As we mentioned earlier.218 LAW00051 – Legal Research and Writing Finding cases in which an earlier decision has been judicially considered (Noting up cases) r Textbook N&C [8. At the homepage for LexisNexis there is a ‘Quick Find’ search frame where you are invited to enter the name or citation to search either in CaseBase or All case sources.48] here.44]–[8. As the authors of N&C indicate. . KeyCite. Firstpoint On the homepage click on the word ‘Cases’ under Search. noting up is one of the major functions of citators and case annotators and the most effective way to do it is electronically. To note up the case you need to refer to the ‘cases citing’. CaseBase. An essential part of legal research is being able to locate the appropriate precedents that together describe the common law. Nothing could be simpler. As we have already mentioned.48]) Once you have conducted your search select the relevant case by clicking on the case name. we must be able to locate cases in which a later court has judicially interpreted an earlier decision. Again you want to see what has happened to your case so you need the later cases – ie ‘Cases referring to this case’. Hard-copy methods The most appropriate place to start when searching for cases that have considered earlier decisions of the courts is with a citator. (See the exercise in N&C at [8. Details about that case will be listed in a digest. follow the exercise in N&C at [8. and LawCite. Details about the case will appear in a digest and will include ‘Cases referring to this case’ and ‘Cases considered by this case’. including ‘cases citing’ and ‘cases cited’. (Once again. You can search for any word or words here but you do not need to type in ‘and’ because it is the default connector. Computerised methods Citators are the research tool specifically designed to locate this information. Enter the case name in the Case Name search box. CaseBase CaseBase is very user-friendly. the way cases ‘fit together’ is governed by the doctrine of precedent.

LAW00051 Topic 11 – Finding and noting up cases 219 Australian Case Citator Consult the latest volume of the Citator and then work backwards through the previous volumes. These will give you the case names and citations of previous decisions where the courts have considered the case you are researching. Finding unreported cases Unreported decisions can be difficult to locate in hard copy. Westlaw and Legal Online (LawBook) all have ‘unreported judgments’ databases. Digests When using Australian Current Law. r Textbook N&C [8. remembering to check the subsequent table in the latest issue. sometimes even the subsequent decisions are hard to understand! In those situations. Check the cases for relevance. which will refer you to the year and case reference. Nonetheless. Australian and New Zealand Citator to UK Reports You would use this citator if you were looking for judicial consideration of UK case law. Australasian Case Law Digest Consult the section of cases judicially considered. Check cases for relevance. Simply look up the name of the case in the alphabetical listing. check the ‘Table of Cases Judicially Considered’ in the Consolidated Index. try locating a casenote or article about a case. which will explain the principles of law expounded in the decision. These will refer you to the issue number and case reference. consult the ‘Table of Cases Judicially Considered’ in the consolidated indexes. It is worth noting that judgments on AustLII are not considered to be ‘reported’. locate the case and check for relevance. which will refer you back to the case summaries. Check the summaries and then the case for relevance. because they can be a very valuable source of current information. including Australia. Australasian courts. For the current year. . for past years.43] Finding casenotes and articles about cases Although locating cases which have considered earlier decisions of the courts can assist you in understanding those decisions. The ALMD also has a ‘Table of Cases Judicially Considered’. Most of them are only accessible through electronic sources.40]–[8. They are classed as ‘medium neutral’ and in many cases they are not reported elsewhere. it is important to know how to locate unreported decisions. Update the Citator by reference to Australian Current Law or the ALMD and the ALMD Advance. LexisNexis AU.

49]–[8. Hard-copy methods Australian Case Citator The Australian Case Citator lists some articles in the alphabetical listing of cases. remember to limit your search terms. CaseBase Enter the name of the case in the appropriate box. so look in the alphabetical listing in the table. to the relevant field. r Textbook N&C [8. You may prepare it for study purposes and to understand and remember the ratio decidendi of a case. which will refer you to the Title and paragraph number. any relevant articles/case notes will be listed below. the decision. and shortly after.220 LAW00051 – Legal Research and Writing A casenote is a summary of the decision made in a case. Most indexes have a table of cases. . the name of the case. Look up the name of the case in the ‘Consolidated Table of Cases’. FirstPoint Enter the name or citation in the relevant search box and when the record appears. Certainly it sums up the principal findings of that case. Law journal indexes Go to the indexes of any law journal at the time of. although you should note that the Southern Cross University library does not subscribe to the full Westlaw service. and when you have performed your search. so you should remember to search in the same period as the decision. AGIS and index to legal periodicals LexisNexis and Westlaw Both have a collection of Australian journals in full text. Australian Digest The abstract of a case in the Australian Digest could be described as a casenote. that is. Most casenotes and articles about cases are written within a short time of the decision being handed down. click on the case name and then the link to ‘Noted in Journals’ Journal indexes including. In these databases.54] Computerised methods It is easier to locate casenotes and journal articles by using the appropriate databases. Many casenotes appear in law journals and take on a further function of interpreting and analysing a case.

LAW00051 Topic 11 – Finding and noting up cases 221 Using electronic sources and browsing online services to search for cases and information about cases r a a Reading To round off the information in this topic. You would then update this by consulting the index and tables for subsequent volumes of those law reports. and how would you use it? (b) What is a casenote? What is it used for? (c) Why would you refer to a journal article to locate information about cases? (d) Access a law library or visit the Southern Cross University online library and see if you can locate the following information. This section of the text discusses in some detail tips for using electronic sources to locate cases effectively and how to browse some online services for the latest case developments. We will be discussing these exercises in tutorials and in the MySCU discussion forum. They can also be useful to help us to keep us with changes in the law. (b) A casenote is a summary of the decision made in a case. Complete the exercises for Topic 11. read N&C [8. Activity Turn to the Workbook. if available. They are used to help us understand cases. . Often casenotes are published in journals to discuss significant and new precedents. To find a case. or more commonly. identify the secondary sources that you would use to locate the following information. you would consult the subject index in the consolidated tables and index. (i) Locate the case citation for the following cases: McHale v Watson Lowe v R Onus v Alcoa of Australia Ltd (ii) Locate cases on the following subjects: discrimination in employment contracts that have been frustrated negligence by a doctor (iii) Locate the latest authority considering the following cases: McHale v Watson Lowe v R Onus v Alcoa of Australia Ltd (iv) Locate journal articles on the following cases: Mabo v The State of Queensland (No 2) Walton Stores v Maher Rylands v Fletcher f Feedback to revision activity (a) You would use a series of law reports if you were sure of the jurisdiction of the case. in particular to understand the precedent – or legal principle – established by a case. Prior to attempting this exercise. if there was a series of specialised law reports on the topic you are researching.56]–[8. Revision activity (a) When would you use a series of law reports to find a case.60].

222 LAW00051 – Legal Research and Writing (c) Journal articles are often prepared by specialists and experts in a particular area. 1996) 10–14. Researching and Writing in Law (LawBook. 2000) Milne. F. Further reading Campbell. (d) If you had difficulty with these exercises use the Discussion Board to ‘discuss’ your problems or contact your lecturer or the resident tutor. Concise Legal Research (Federation Press. Hutchinson. 2nd ed. S and Tucker. L and Tooher. 4th ed. 2009) . K. Poh-York. R and John. An Introduction to Legal Resources on the Internet (Crucial Briefs Legal Research Services. P. A and Gilchrist. They discuss many different aspects of the law. T. 2006) Kerr. J. They can be used to help us to understand case law. 2010) Watt. A Practical Guide to Legal Research (Thomson Reuters. 6th ed. 2nd ed. Hoyle. J. E. Legal Research Materials & Methods (LawBook.

as well as finding statute notes. we will focus on the parts of your text that discuss researching techniques for commonwealth legislation. and locate statute notes. Legislation and how to find it You may recall our previous discussion about legislation and the way in which legislation is made and changed by Parliament. locate extrinsic materials. locate the most recent amendments and trace the history of an Act. Although a range of secondary sources can assist us to understand legislation by giving us an overview of it. Objectives At the completion of this topic. if you are unsure you should look back over Topic 6 – Understanding legislation. apply basic research techniques as they relate to legislation. as well as extrinsic materials that can be used according to the rules of statutory interpretation (discussed in Topic 6). The general principles used for commonwealth legislation are similar to those used in the state and territory jurisdictions. at this point.Topic 12 Finding and updating legislation What we will do in this topic In this topic we will look at locating materials that will assist us in understanding legislation. An understanding of parliamentary processes is necessary if you are going to learn to locate legislation. you should be able to: • • • • • • • identify the content and use of research tools in finding legislation. find bills and statutes and their subsequent development. We will also look at finding cases where the courts have considered the meaning of legislation. the relevant N&C chapter here (Chapter 7) needs to be read and digested in its entirety. It is essential that you know how to find it and update it. In this topic. primarily we turn to the decisions of the courts. Like cases.1] 223 . legislation is a primary source of our law and legislatures throughout Australia pass more and more of it. r Textbook N&C [7. so. As with Topic 5 on understanding cases. and as with N&C. locate cases in which the courts have considered the meaning of legislation.

we will look at the techniques used in each of these steps. and also information concerning the judicial consideration of legislation. Update the Act. at this point you may wish to refresh your memory about manual and computerised research methods. Information about the development of legislation in these states can be found in the volumes of legislation.34]–[8. other government publications. the parliamentary websites for each jurisdiction (eg South Australia has a legislation website at <http://www. in the main. LawOne (TimeBase) and LawNow (LexisNexis AU). Secondary sources and finding tools We have looked generally at different types of secondary sources in our previous topics. These steps are as follows: 1. First.38] of N&C. Subject indexes It is often necessary to do some lateral thinking to locate relevant legislation.legislation. Shortly. Subject indexes that do exist appear in the following table. not nearly as comprehensive as the information concerning Acts of Parliament. Some annotators also contain information about delegated legislation.au>) or the databases designed to track legislation.sa. A good starting point is a subject index to legislation. we will examine the main ‘finding tools’ used to locate legislation. either under the name of the parent Act. Now we are going to look at them in more detail. The information concerning delegated legislation is. 6. Determine if the Act has commenced operation.gov.224 LAW00051 – Legal Research and Writing The steps that we need to follow when researching legislation – to ensure that we have located all the information we need about an Act – are related to the way legislation is made and amended. 3. Find the most up to date copy of the Act. . journal articles. the Australian Capital Territory and the Northern Territory have no specific annotators. Locate any extrinsic materials that will assist you to interpret the Act. 2. such as. Annotators Annotators are publications that contain the legislative development of an Act. South Australia. 7. Tasmania. 5. Locate any other secondary sources that will assist you to understand the Act (statute notes. However. Western Australia. Determine if any cases have interpreted the Act (finding cases that judicially consider the Act). 4. as we turn to the task of locating legislation and related information. The annotators for most jurisdictions are set out in paragraphs [8. Again. Identify the name of the Act relevant to your research topic (locate by name or subject). etc). not all jurisdictions have subject indexes to their legislation: some information is contained in other publications. or listed separately at the back of the annotator. and about secondary sources.

Australian Legal Monthly Digest We know we have already spent a bit of time looking at the Australian Legal Monthly Digest (ALMD). . which is contained within the looseleaf service New South Wales Statutes Annotations and References. A link to a list of Australian governments websites can be found at <http://www.au/library/intguide/law/auslaw. published annually. it also contains much information about legislation. Although ALMD primarily digests reported cases.sa.htm#legislation> Such online information is more readily accessible and in some instances supersedes the printed products. australia. You could also look at the Australian Parliamentary Library’s useful page of resources at <http://www. Statutes of Western Australia Index. even more importantly. Subject Index to South Australian Legislation available at <http://www.gov. com. All jurisdictions produce bound volumes of legislation on an annual basis.au/leg/5_2>-index/shtm>. We will have a look at some of these now. published annually. published annually. Laws of ACT: Tables Northern Territory Subject Index to Legislation Queensland Victoria Tasmania Western Australia South Australia ACT NT For all you online users (which is most of us) there is also a Subject Index of Principal Australian Legislation available through Lawlex at <http://research.aph.lawlex. Government publications and websites are a good starting point. Again this information can be located by other means – but you need to know what other means are available to you. Acts and delegated legislation. Index to Subject Matter of Victorian Legislation published annually.1 Commonwealth New South Wales Wicks Subject Index to Commonwealth Legislation. Indexes to the Legislation of Tasmania. each government provides legislative information online – about Bills.gov. Subject Index to the Acts and Regulations of New South Wales. Government publications and websites The government publishers for all jurisdictions produce various printed publications (including Acts Tables. However. Bills Tables and Statutory Rules Tables) that are of assistance when researching legislative material. Queensland Statutes Annotations has a subject index at the end of the service. but we need to examine it again with a view to finding specific information about legislation.au/> which is most convenient given that it covers all jurisdictions.gov.au>.LAW00051 Topic 12 – Finding and updating legislation 225 Table 12.

ALMD also has a Chronological Table of Statutes Passed and a Table of Reprinted Legislation. as the publishers have chosen to produce numerous tables. rather than by removing the Bill from the table. rather than one comprehensive one. Importantly. Table of Reprinted Acts. we have the looseleaf services which we briefly outlined earlier. The Table of Bills lists the bills for each jurisdiction. the entry is removed from the list and the information is included in the ‘Alphabetical Table’. The tables refer you to the monthly issue and the relevant subject number. Australian Current Law – Legislation Australian Current Law (ACL) provides information about statutes and delegated legislation. Table of Regulations/Rules Made and Amended. Please note that they are cumulative for that year only and it is necessary to consult the latest part for each year. Table of Miscellaneous Orders/Notices. Sadly. Each of the tables listed below is to be found in the cumulative index and tables accompanying the monthly part. Table of Reprinted Regulations. and particularly those published by CCH Australia Ltd. it is often difficult and time-consuming to use. these important tables were not incorporated into FirstPoint. and Table of Parliamentary Bills. Also the Table of Bills indicates by the use of an asterisk (*) when a Bill has been enacted. provide comprehensive legislative history of the legislation contained in those services. Many looseleaf services. Although ALMD does not have a specific table of delegated legislation. ACL-Legislation is available online at LexisNexis AU. Table of Amended Acts. The Alphabetical Table of Acts Passed. However. . it is possible to locate some delegated legislation through this index. Repealed or Proclaimed to Commence lists this information for all jurisdictions and refers you to the appropriate monthly issue. Table of Proclaimed Legislation. Once the bill has been enacted. Looseleaf services And last but not least in this ‘toolkit’. The Legislation Index is also a useful way of locating Acts and the index includes cross-references. The tables are as follows: • • • • • • • • Table of Acts Passed. which is a great pity because it diminishes the use of an otherwise successful product. Please note that there is no subject index. Amended.226 LAW00051 – Legal Research and Writing ALMD has a number of methods of locating legislation.

. Go to the website mentioned above at <http://www.17]. or the ALMD. which indicates the electronic databases that provide access to legislation in each jurisdiction. Government tables exist in a number of jurisdictions and Queensland provides this information in the Queensland Legislation Update. Hard-copy methods Although looseleaf services and encyclopaedias may provide you with this information.18] Locating legislation by name. you can scan the lists of Bills in either ALMD or ACL or the government tables if they exist for that jurisdiction. Alternatively. and so we must take steps to identify the name of the Act.2]–[7. But the easiest way to find bills is to search the website of the appropriate parliament. the process is very straightforward. Another place to search online for Bills is LawOne (TimeBase). to see the original version of an Act as it was presented to parliament.LAW00051 Topic 12 – Finding and updating legislation 227 Finding Bills Often we need to locate a Bill before it becomes legislation to see how it may amend existing laws. Consult either ALMD. If you know the name of the Act. This subscriber service is available through the Southern Cross University Library databases. as well as locating the details of their passage through the houses of parliaments. we should double check whether any other legislation exists in that area of law that may also have relevance to our research. Finding legislation When you commence your search for legislation.nla.11]–[7. [7. ACL or the government publications for that jurisdiction. r Textbook N&C [7. Also.3] Finding Bills in hard copy can be difficult given that there are no subject indexes to Bills of any jurisdiction. Once you have located the Bill. But often we do not know the name of the relevant Act in the area of law that we are researching.45] Locating legislation by subject. even if we do know the name of the Act. or we may wish to locate a Bill that was passed by parliament.au/oz/gov/> to find the relevant URL. A further feature of this database is the daily alert service which informs a user by email of any changes to the status of a bill (or amendments to legislation) in nominated subject areas. This database tracks both legislation and bills providing up to date information for all Australian jurisdictions.41]–[7. you may or may not know which particular Act you are looking for. the explanatory memorandum and the second reading speeches. You can search for bills (and legislation) by subject or title and as it is a full text database access the full text of a bill. However there are a number of methods of locating Bills. Finding legislation by name or subject r Reading N&C [7. it is necessary to see if it has been enacted.gov. Note also the table provided at [7. the best place to look is in the subject indexes to legislation.

Enter your search term. Computerised methods There are a number of different databases in which you can search for legislation on a specific subject. Tasmanian and Western Australian Acts. ComLaw <http://www. the new interface makes it easy to use. For Queensland.au> Select All legislation databases or the database for your jurisdiction. 1 Legislative Instruments Act 2003 (Cth) s 5.228 LAW00051 – Legal Research and Writing For Commonwealth. determinations. Queensland. consult the ‘Legislation Index’ in the Cumulative Tables. for example: Commonwealth Consolidated Acts. And. of course.au> Lawlex provides primary legislation from all Australian jurisdictions by name and subject. For a full list of documents categorised as legislative instruments visit the FRLI on the ComLaw website.austlii. don’t forget the other government sites. You have now completed step 1 in researching legislation. standards.edu. New South Wales.1 It includes the delegated legislation that we discussed in Topic 7 as well as other materials such as directives. as well as a list of Commonwealth Acts that affect the Northern Territory. proclamations. Each bound annual volume of the South Australian Statutes has a subject index for that year.com. AustLII <http://www. . Victorian. Lawlex <http://research. and in Australian Current Law. for example: discrimin*.gov. This search will display a list of Acts and each individual section that contains your keyword. This is done by selecting the appropriate database and entering your chosen keywords. consult the subject indexes listed in Table 12. A legislative instrument is any document made in the exercise of a power delegated by the Parliament.comlaw.au> This site contains: • • Commonwealth primary legislation: and the Federal Register of Legislative Instruments (FRLI). which makes it a useful and valuable resource. Furthermore. notices. LawOne (TimeBase) As mentioned above. consult Queensland Legislation Annotations. this subscriber database covers legislation (and bills) from all Australian jurisdictions.1 above. consult the index to the Legislation booklet.lawlex. order etc. In ALMD. Note that the Commonwealth subject Index also contains information about Australian Capital Territory legislation.

LawOne – go to the Table of Acts under History. ALMD – see the ‘Table of Acts Passed. If the information is not there. you find any amendments to the Act you have located.LAW00051 Topic 12 – Finding and updating legislation 229 Has the Act become law? r Textbook N&C [7. or ACL – see the ‘Table of Proclaimed Legislation’ in the Consolidated Tables. You have now completed step 2 in researching legislation. government publications. Once you have located the Act. you should check in an annotator. Repealed or Proclaimed to Commence’ in the Cumulative Tables. If. Have you got the most up-to-date copy of the Act? r Textbook N&C [7. and ComLaw – once again go to the Notes section of your Act.24] Once parliament has passed legislation. there are still two things that must happen before it has lawful authority: 1. It must have commenced operation (this may also be referred to as proclaiming an Act).37] Updating Having found the principal Act that is relevant to your research. you must make sure that is has commenced. If you are using computerised research methods use: • • • • • the appropriate online annotator.25]. . government website. remember that you also need to check whether the amendments have commenced or not by reference to these tools. It is essential that you check that both of these two things have happened when you are researching legislation. as pointed out by N&C at [7. To find out if an Act has received Royal Assent.25]–[7. and you are working with hardcopy consult: • • • • annotators. the ALMD. this is a little more difficult as the Act may amend a number of principal Acts and thus the commencement provisions may vary depending on the principal Act. ACL. 2. AustLII – click on the NOTES icon to check the commencement provisions. The commencement provisions are usually contained in s 2.21]–[7. the relevant government publications or website or LawOne. it is worth checking first – to save yourself time – if the Act has been repealed. It must receive Royal Assent. after updating your statutes. Check the Act first. Amended. For amending Acts.

As a shortcut. Under ‘Acts’ take the link to Compilations – Current. print copies of reprints are usually located on the library shelf near the annual volumes of the statues. you must first identify the name of the principal Act. As indicated. For legislation in electronic form you can only obtain the official or authorised version of legislation from ComLaw (for commonwealth legislation) and the state Parliamentary Counsel Office websites (for state Acts).1 What does it mean if an Act has been repealed? The following publications contain this information: • • • • • • ALMD – see the Table of Acts Passed.230 LAW00051 – Legal Research and Writing a Activity 12. government publications. rather than the current legislation. Repealed …. to locate the reprint. in which case you must locate all relevant amendments. then you should locate the reprint. but you should always check the sources mentioned to ensure that you have the latest reprint. The principal Act may have been amended many times since it was enacted. An earlier reprint can be a simple way of performing this otherwise difficult task. which is the step described in the previous section. To see whether an Act has been reprinted. There are occasions when it will be necessary to locate an Act at a particular time in the past. The consolidated legislation found in all other databases can be relied on as an accurate record of the legislation. check the currency of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). Repeat the exercise using TimeBase. it is useful to check whether an Act has been reprinted. and a good practice (which shortcuts usually are not!!). Reprints are placed on the shelves alphabetically. As noted at [7. Just as when you are looking for any legislation. Butterworths Statutes Annotations Repealed Legislation for the Commonwealth and New South Wales. and ComLaw. The reprint will tell you up to what date it is current. a Activity Using ComLaw. as you can limit your search to the date after the Act was reprinted. If an Act has been reprinted. This will reduce the time and effort that you will need to put in to check whether the Act has been amended. TimeBase. . You will recall from Topic 6 that a reprint is the official reprinting of an Act by the Government printery which incorporates all amendments up to a certain date.26] of your text. the ALMD or ACL. If your Act is not there it has been repealed. however. New South Wales Legislation in Force. you should consult the annotators. Amended. it is good practice to look for a reprint rather than trying to locate the original version of the principal Act. which contains a list of all Acts repealed in New South Wales since 1986. Having checked to see whether the Act has been repealed – and determined that it has not been – the next step is to check for amendments. Acts tables published by the government printers for the the various jurisdictions. only the authorised version can be printed and relied on in court.

26] about checking that you are not using the Repealed Legislation Volume. Amended … ’ in the Cumulative Tables. Both TimeBase and ComLaw provide currency information and are reliably upto-date. You should also take care that you are not looking in the Delegated Legislation (Regulations) volume. you should use it. consult the following: • • • • annotators. If so. update using the publications listed above. Computerised methods When you use computerised legislation located online. but . see the ‘Cumulative Table of Amended Acts’ in the Consolidated Tables.37] It is essential that you ensure that the legislation you have located is completely up to date. and ACL. In other words.25]–[7. you should always check the currency date. and ensure that you follow all of the steps listed above to be sure that you have the most current information on the legislation you locate. you should also check to see if the legislation you are using has been reprinted or if the reprint you have found is the latest version. has the Act been amended recently? Have those amendments commenced? Are there amendments pending? As discussed in the previous section. Remember however that the sheet itself may be out of date – the currency date is printed at the top of the sheet. Finding amendments – updating legislation r Textbook N&C [7. If there is an online annotator for the jurisdiction that you are searching in. you can also consult the blue update sheet that should be filed in front of the Act. and to locate previous versions of the legislation prior to amendments. Bear in mind. Alternatively you could search within the online ACL-Legislation. and [7. We will not be looking at the process of going backwards. Hard-copy methods To check if an Act has been reprinted or amended.LAW00051 Topic 12 – Finding and updating legislation 231 Regardless of where you access legislation online. Take especial note of the handy hint at [7. Historical searches Sometimes it is necessary to trace the history of the changes made to an Act (called ‘point-in-time’ searching). you are able to check how up to date the Act you have located is by clicking on the NOTES icon after you have displayed the Act. When locating legislation through AustLII. that even online databases do not claim to be absolutely complete or free from error.20]. you often do not have to update because the version of the Act you locate is usually the latest. ALMD – see the ‘Alphabetical Table of Acts Passed. You have now completed step 3 in researching legislation. In New South Wales. government publications.

au>. such as New South Wales and Victoria.4]–[7. Make sure that you locate all three readings speeches. Then you need to go to the volumes of Hansard for that period and look up the Bill in the index to that volume. You have now completed step 4 in researching legislation. Keep in mind that government reports. including law reform reports (described in N&C Chapter 6). and other parliamentary publications may be located in a number of ways. such as reports of Royal Commissions. which print the date of the second reading speech at the back of the Act. APAIS. See paragraph [7. Boards of Inquiry and the various Law Reform Commissions. Parliamentary Library and an Index to Parliamentary Information. as there is no cumulative index to Hansard. This task is not as difficult in some jurisdictions. We will concentrate on the methods used to locate both of these. as these may run over a long period. in LawOne you can locate the second reading speeches and explanatory memoranda for all Australian jurisdictions. Computerised methods It is possible to locate Commonwealth Hansard from the Commonwealth Parliament site at <http://www. facilitate such a search. or may be referred to in ACL or ALMD. the House of Representatives.38]–[7. Some databases.gov. Most of these can be located through a catalogue search and by using some electronic databases. Finding the second reading speech (Hansard) Hard copy methods This is not always an easy task.40] of the text will guide you if you ever need to do so in your research. and certain databases within AustLII (eg NSW Acts (Point-in-Time)). If you cannot locate a copy of the Bill. the Senate. and reports of parliamentary committees can be used to interpret legislation. which is usually located on the front of the Bill. New publications may be included in AGIS. . start in Hansard for the year that the Bill became an Act and then work backwards. which provides access to Hansard.5] of N&C. and especially the second reading speech. either in the ‘Notes’ or simply at the very end of the printed Act. the most important extrinsic materials used to understand legislation are Hansard (parliamentary debates) and explanatory memoranda that accompany the Bills as they progress through Parliament.232 LAW00051 – Legal Research and Writing paragraphs [7. However. In most instances it is necessary to locate the date the original Bill was introduced. As noted earlier. Finding extrinsic materials r Textbook N&C [7. such as a library catalogue or by contacting the government publisher.aph.10] Much extrinsic material. such as LawOne (TimeBase).

LAW00051 Topic 12 – Finding and updating legislation 233

Finding the explanatory memorandum (or note) to a Bill
The explanatory memorandum (or note) is frequently created at the time of (and attached to) the first reading of a Bill and provides an explanation about the purpose of the Bill. It is in only the last 20 years or so that the parliaments have issued explanatory memoranda for their Bills, and not all libraries retained them due to storage difficulties. However since the amendments to the Interpretation Acts allowing the use of extrinsic materials, the explanatory memoranda have more commonly been retained. Explanatory memoranda are usually simply filed near the Bills or interfiled with the Bills. Computerised method: Again, you should consult the website of the appropriate parliament and LawOne. You have now completed step 5 in researching legislation.

Finding cases which interpret (judicially consider) legislation
We will take a brief look at both the hard copy and computerised methods to locate cases in which legislation has been judicially considered – starting with electronic searching – given that this is by far the easiest method.

r

Textbook
N&C [6.209] Searching for judicial consideration of a specific Act, [8.31]–[8.38] Locating Cases by Legislative Reference, [7.46]–[7.51] Commentaries Subsequent to Enactment: Cases

Computerised methods
Generally when using computerised methods to locate cases in which legislation is judicially considered, you can simply enter the name of the Act as one of your keywords in a case law database. Care should be taken using the term ‘Act’, however, as it occurs very frequently. Difficulties can also arise when searching for specific section of an Act as not all databases use the same format. There was a trend in legal databases that all sections of Acts were written as ‘s’ and number with no space between the two, for example, ‘s 74’. This trend unfortunately did not continue and there is now no way of being sure that the section is written as ‘s’, ‘sec’, ‘sect’, ‘section’, and so on. It is possible to simply write the number of the section, however that number could relate to any number, such as a page number of a case citation. The most reliable method is therefore to search for the name of the Act and the number of the section in close proximity to one another. For example: conveyancing w/3 12 or ‘family law w/5 72’. Alternatively, you could search by the name of the Act and a description of the relevant section. For example: ‘family law w/5 (spouse and maintenance) w/2 right.

234 LAW00051 – Legal Research and Writing

The easiest and most reliable methods to locate cases in which legislation is judicially considered are as follows: • In LexisNexis AU – Using the ‘Cases’ tab, scroll down to the ‘Legislation judicially considered’ search box. Enter the name of the Act and the section (eg family law act w/p ‘75 (2) (a)’) – Using CaseBase, see above, and note that you can also find journal articles about the Act and section. – In ACL – Reporter scroll down to ‘Legislation judicially considered’ search box and enter your search as above. In Legal Online (Lawbook), select Cases and using FirstPoint, press the red arrow icon to show more search options. Go to the ‘Legislation judicially considered’ box and enter your terms (eg family law act 75(2)) Note that you can not search for anything more specific than a section and subsection in this database – ie only 75(2), not 75(2)(a). The results listed are cases that have referred to s 75(2). If you are using AustLII, locate the Family Law Act 1975 (Cth) and select s 75 by clicking on the hyperlink number. Click on the NOTEUP icon, displayed at the top of the section: cases which have judicially considered that section will be displayed. Unlike the previous database you cannot note-up the subsection and so some results will not be relevant to s 75(2). However, this is still one of the best features of AustLII and you should use it. You will find that there are many more results in this database and this is because all documents on all of the AustLII databases are searched and any document including journal articles and government publications are listed. Although not as comprehensive, LawOne (TimeBase) also provides a link to cases that have discussed legislation. Locate the Family Law Act 1975 (Cth) by selecting Commonwealth jurisdiction then Current Acts and click on ‘fa’. Click on the relevant Act and then Case Link. A table of sections which have cases linked will be displayed. Select the relevant section. Cases that have considered this section will be displayed.

Hard-copy methods
To find cases where the courts have considered the meaning of legislation, consult the following: • • • ACL – refer to the Table of Statutes Judicially Considered in the Consolidated Tables, which will refer you to the year and case reference; ALMD – refer to the Table of Legislation Judicially Considered in the Cumulative Tables; Australian Digest – see the Consolidated Table of Statutes contained in the Consolidated Index and Tables, which lists legislation judicially considered in the titles contained in the third edition. The table will refer you to the title and paragraph number. annotators – see, under each section of the Act, a list of the case names and citations where legislation has been judicially considered. (Please note that none of the annotators cover all legislation judicially considered and that they should be updated by using ACL , or ALMD and the ALMD Advance.) Australasian Case Law Digest – see the section of legislation judicially considered, which will refer you back to the case summaries;

LAW00051 Topic 12 – Finding and updating legislation 235

law reports. If there is a series of law reports on the topic you are researching, check the table of legislation judicially considered in the consolidated index for the series, which will refer you to a volume and page number. Then check the table in subsequent volumes, which will refer you to a page number. looseleaf services. If there is a looseleaf service on your particular area of law, check the Section Finding List in the main work, or, if the work has an accompanying Cases volume, the list in that volume. These will refer you to a paragraph number.

You have now completed step 6 in researching legislation.

Finding statute notes and articles about Acts

r

Textbook
N&C [7.52]–[7.55]

As with casenotes (discussed in Topic 11), statute notes are usually published in law journals. You should check in the annotators, which may contain some articles about the Act concerned or alternatively, search on a database for journal articles. Finding statute notes is the same as locating any journal articles, but for the most relevant results, you should limit your search term to the appropriate field. You may wish to refer back to Chapter 6 of N&C, covered in Topic 9, which looks at using indexes to Australian law journal articles. You may also remember how to use CaseBase to find both cases and articles about legislation (see above in step 6) and, as noted above, the AustLII note-up function retrieves both cases and journal articles. You have now completed step 7 in researching legislation. As with researching case law, it is essential that you consult more than one source when researching legislation. The government publications are usually the most reliable source of information, as the government publishers are responsible for the publishing of the legislation itself. However, they can still be incorrect, so double – and triple – check your research.

Delegated legislation

r a

Textbook
N&C [7.56]–[7.64]

We have not specifically addressed the method of locating delegated legislation, mainly because we have plenty in this unit already. Please don’t take this as meaning that it is not important or useful to locate delegated legislation. However, we feel confident that we can leave it to you to develop these skills.

Activity
Turn to the Workbook. Complete the exercises for Topic 12.

236 LAW00051 – Legal Research and Writing

a

Revision activity
(a) (i) Locate legislation on the following subjects, and take note of the full citation of those Acts: – – – – – a commonwealth act on psychotropic drugs; a NSW Act on the censorship of publications; and a Commonwealth Act on the prohibition of tobacco advertising. Have they been reprinted? Have they been repealed?

(ii) Locate the most up-to-date copy of these Acts:

(iii) Have these Acts commenced operation (and received Royal Assent)? If so, when? (iv) Have these Acts been amended? List some of the amendments (if any). (v) Locate the Second Reading speech for each of these Acts. (vi) Locate cases that have judicially considered these Acts, and record their citations. (b) Locate journal articles that discuss the following Acts, and record their citations: • • • Racial Discrimination Act 1975 (Cth); Trade Practices Act 1974 (Cth); and an Act dealing with the sale of goods. If you have any difficulties with this activity, please contact the unit assessor.

f

Feedback to 12.1
If an Act has been repealed, it means that Parliament has decided to delete it, and therefore remove its legal authority. Parliament must pass an Act in order to repeal an earlier Act. Repealed legislation has no legal operation. However, it may be of historical interest or may assist us in interpreting later legislation on the same subject.

Further reading
Campbell, E, Poh-York, L and Tooher, J, Legal Research Materials & Methods (LawBook, 4th ed, 1996) 10–14. Hutchinson, T, Researching and Writing in Law (LawBook, 2nd ed, 2006) Kerr, P, Hoyle, A and Gilchrist, J, An Introduction to Legal Resources on the Internet (Crucial Briefs Legal Research Services, 2000) Milne, S and Tucker, K, A Practical Guide to Legal Research (Thomson Reuters, 2nd ed, 2010) Watt, R and John, F, Concise Legal Research (Federation Press, 6th ed, 2009)

Unit summary
Well, you’ve done it! You’ve completed the activities and readings in this unit. You should now feel more confident about reading and understanding cases and legislation, legal writing styles and the way to write about legal information effectively, doing legal problems, and researching legal information. Again, these are skills that you will improve the more you practice them, and as you progress through your studies. Make sure you take the plain legal language principles away with you, or our work will be for nothing! If you have been convinced that plain legal language is more effective, when you get out into the ‘real world’, it’s your job to convince other legal professionals of the same. Good luck!

LAW00051 Topic 12 – Finding and updating legislation 237 Of course. Good luck with your remaining studies. and that the skills you have developed in legal research and in legal writing continue to improve. we know it’s not quite over. to the benefit of your studies and your future work as a legal professional. as now you need to finish the research assignment! But the end is in sight. The Legal Research and Writing team . and holidays from studies are on the way! We hope that you have found this unit useful and interesting.

238 LAW00051 – Legal Research and Writing .

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