LAWS1024 - Lecture Notes PDF

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LAWS1024 – Legal Research Need to use course material + textbook – one listed in unit outline Primary Courses: - Cases - Authoritative records of law made by - International law/treaties are only primary if they have been ratified in domestic law - Examples: o Acts o Delegated Legislation Secondary: - Publications that refer and relate to the law while not being primary sources - Examples: o Books o Journal articles o Dictionaries Citing Cases: - If case is reported, then use ( ) for the date: o CLR = Commonwealth Law Reports (series that has been authorised for decisions of HCA) § Swain v Waverely (2005) 220 CLR 517 o If no authorised version, a report from any other series § Swain v Waverely (2005) 213 ALR 249 - If case has not been reported at all (or will be but not published yet), medium-neutral citation used: § Swain v Waverely [2005] HCA 4

Authority in Law: - Need most authoritative materials. - Primary sources: o Legislation more authoritative than secondary as they state what the law is and not merely making an opinion or summary of law o Some primary decisions may be more authoritative: § One decision may be binding precedent set by a HCA, another may be persuasive but non-binding decision of a different court, etc. - Uses: o Cases from authorised report series o Legislation from official websites – www.legislation.gov.au NOTE – AustLII: - Don’t give you best authorised versions of cases or legislations - Has less info than databases such as LexisNexis and Westlaw - Some cases are not there at all.

Module 1 – Secondary Source of Law:

What is Secondary Source of Law: - They explain, interpret and analyse primary sources of law Examples of Secondary Sources: - Legal encyclopedias o an ideal starting point for researching a new area of law. They give an overview of most areas of law within a particular jurisdiction, usually nationally. § Discuss law at both state and federal level § Often cite further reading texts o 2 major titles: (important to consult both) § Halsbury’s Laws of Australia • Can search terms or use the index for key terms § The Laws Of Australia • Search using via Westlaw o Citing: § Format: Publisher, Title of Encyclopedia, (online at Date of Retrieval) Title Number Name of Title, 'Chapter Number Name of Chapter' [Paragraph]. § E.g. LexisNexis, Halsbury’s Laws of Australia, (online at 26 October 2021) 5 Aboriginals and Torres Strait Islanders, ‘3 Holding and Managing Native Title’ [5-5380] - Books – e.g. textbooks o provide in-depth overview and discussion of an area of law. o Citing Books: § Format: Author, Title (Publication Details) Pinpoint § Pinpoint refers to one or more particular pages of a piece – used when to § E.G. Elliott Johnston, Daryle Rigney and Martin Hinton, Indigenous Australians and the Law (Routledge-Cavendish, 2nd ed, 2008) 45 - Journal articles: o provide more detailed analysis and will focus on specific topics, or aspects of a legal issue. o Peer reviewed Articles: à in show only, click peer reviewed. § Peer review is the process by which journal articles are anonymously reviewed by other academic before publication = gives feedback to authors and improves the final article as well as quality of published articles. § Articles not peer reviewed are newsletters and bulletins that are aimed at practitioners who need to understand new developments quickly. o Citing: § Format: Author, 'Article title' (Year) Volume and Issue Journal title Page, Pinpoint § E.g. Harry Hobbs and George Williams, 'The Noongar Settlement: Australia's First Treaty' (2018) 40(1) Sydney Law Review 1, 12 § NOTE: if no volume or issue number (i..e the year of publication is used instead), the year is placed in square brackets. o AGIS Plus Text: data base that indexes articles from Australian legal journals. § How to Search:

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Infromit Place terms in search bar Apply filters by going through the subject, legislation, areas, etc. and selecting relevant subject areas = highly relevant results.

Online commentary services o contain up-to-date, very detailed and extensive commentary about legal principles. Law reform papers and reports o are discussion papers that are issued and outline the key issues and to engage the legal profession in the reform process, while reports usually contain proposals for reform that governments may act on. § Discussion papers ouline key issues and engage the legal profession in the reform process § Reports: contain proposals for reform that governments may act on o The issues are referred to Law Reform Commissions by the Attorney General o How to Search (use AustLII): § Click on Law Reform § Click on Australian Law Reform Commission Reports and search in top right box for a specific reform. o Citing: § Format: Name of Law Reform Commission, Title, Report/Discussion Paper No Number (Year) Pinpoint. § E.g. Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Final Report No 31 (1986) 34. Legal dictionaries o provide information about terms used in the field of law.

Boolean operators: - AND: o To combine concepts - OR: o To search for similar concepts or synonyms - NOT:

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o To exclude or leave out concepts NOTE: placing “” around words ensures the results returned feature these words as a phrase

NOTE: when citing, ALWAYS cite the primary source – NOT secondary. Footnotes: - Used to: o Provide authoiryty for propoistin o Acknowledge a source that is relevant and indicate how it is relavant o Provide information that enables other to locate cited sources o Provide info that is not appropriate to include in text Bibliographies: - List all sources that were relied on – not just referred to in text or work. - Divided into following sections: o A § Articles/Books/Reports o B § Cases o C § Legislation o D § Treaties o E § Other - In alphabetical order according to: o Surname of first listed author/institution (excluding ‘the’) o If no author, first word of title. MODULE 2 – CASE LAW What is Case Law: - Primary source of law - Developed by judges - Also known as: o common law o judge-made law How is it made? - Through the doctrine of precedent (stare decisis) o Requires lower courts to follow the rationes decidendi (reasons for decision) from past cases decided by higher courts in same hierarchy when considering a case w similar fact o Some decisions of courts from diff hierarchies can be ‘persuasive’ although they are not binding. - Common law systems works to standardise and provide consistent and predictable outcomes when deciding similar cases Case law and Legislation:

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Work in tandem bc courts apply and interpret legislation. Precedents clarifies what provisions means what language of the statute is ambiguous or unclear

Ratio Decidendi: - Reasons that led to judgement - How to find: o Reported cases have a ‘headnote’ which provides a summary of decision incl ratio. - In cases w diff judgements, need to read over judgments to determine points which all judges agreed. Obiter Dicta: - Material said by the way - Not binding BUT still persuasive - HCA obiter has particular weight and should be followed unless no good reason to - Same cases may be all obiter

Knowing if a Case is Authoritative: - A case is ‘good law’ if it has not been overruled and/or been applied - Using case citators:

Reported vs Unreported Cases: Law reporting: - Law reports are publications that ‘report’ decisions of select courts/tribunals, jurisdictions, or practice areas. - Not all decisions are reported o Cases that are reported reflect decisions by the editors about the legal importance of the case o Judgements of superior/appellate courts are more likely to be reported since these decisions are likely to set precedent for courts within a judicial hierarchy. - May apply an established principle in a new area - May define or interpret legislation or legal terms or is especially instructive. Unreported Judgement: - = Cases that have not been published in law reports - Include significant cases that will be reported in time and cases that will never be reported (these are cases from inferior courts and do not add anything to the development of common law) - Judgements may be accessed via Lexis Advance, Westlaw, AustLII and govt websites. NOTE: - A single case may have multiple citations o Each case starts off as an unreported judgement and once a case gets reported, unreported version doesn’t disappear as it is still available. o Leading cases are often reported in several diff law reports.

Authorised vs Unauthorised Law reports: Authorised: - In common law jurisdictions, most courts have an authorised law report series o These are authorised by the Council of Law reporting - Here, the cases have been checked by judge (or their associate) before being published. o E.g. Commonwealth Law Reports (CLR) contains decisions of HCA - Only one ‘authorised’ law report version for any case. o Judges expect lawyers and barristers to refer to during legal proceedings - Use FirstPoint to get access to authorised reports for Australian jurisdictions. Unauthorised: - Are published alongside authorised reports - Include series that cover a particular practice areas (e.g. Australian Competition and Consumer Cases) or multiple jurisdictions (Australian Law Reports) NOTE: - Most authoritative version of case is the authorised law report version followed by unauthorised report version. Citing Case Law: What is Case Law: - Primary source of law Case citation provides info required to locate a specific version of a specific case. Case Citations Comprise of: - Name of case o Italicised - Year of decision o In round brackets - Volume number in the law report series that the decision was published - Abbreviation of law report series - Page number in the law report volume the case starts on. - Additional: could be a pinpoint at the end of the citation referring to a specific page or span of pages in the judgement

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NOTE: square brackets: o Refer to the year as the volume number

o If there is more than one volume of cases for a particular year, a sequential volume number is added after the year in square brackets e.g. Henderson v Merrett Syndicates Ltd [1995] 2 AC 14 Citing Unreported Cases: (referred to as medium netural citator) - Consist of: o Name of case § Italicised o Year of decision § In square brackets o Abbreviate name of court or tribunal: HCA o Sequential decision number for that year o Additional: could be a pinpoint at the end of the citation referring to a specific page or span of pages in the judgement

o Locating a Particular Case in Full Text: - Find which law report the case is published in and go to Library databases to find it. MODULE 3 – CASE CITATORS: What is a Case Citator? - Database that record detailed info about cases à used to discover judicial history o Also provide: § Links to full texts of decisions (reported or unreported) § Brief summaries of case (called digest) - Include details for a case: o Parties o Court/tribunal heard in o Judges who heard case and handed down decision o Date of decision o Citations of reported and unreported versions of the case o Litigation history § Helps ensure you aren’t relying on a case that was overturned on appeal or handed down to lower court. - Green = case considered positively - Orange = case considered neutrally - Red = case considered negatively - Allow you to search for cases that judicially consider (judges attempted to legally define or interpret meaning of something): o Piece of legislation o Word or phrase

Australian Case Citators: - 2 main ones: o Firstpoint (part of Westlaw) § Quotation marks let you search for particular phrases/parties § Lists cases in: • Medium neutral • Authorised • Other reports § Finding by subject areas: • Can use left of page, you can select subject areas • OR type words in classification § Finding cases by legislation: • Legislations Cited (title) • Type in number of clause you were interested in provision. § Finding secondary sources: • Related materials tab • Quick links and jump to journal. § NOTE: can sort cases by most authorised, etc. o Casebase (part of Lexis) § Searching for specific cases: • Type case name or keywords in case name o Cases listed in order of relevance. • Type in citation in citation field • Provides digest summary • Litigation History: cases that used the case you searched for § Searching by subject: • Use Summary/Catchword field o Can use proximity meters e.g. lease w/10 pastoral § Gives the 2 words within 10 words of each other o Lease! è finds variations of that words e.g. leases, leasehold. • Use legislation: o Type act and/or provision in legislation title field • Secondary sources: o Under publications referring to the case o Get the citation and search for it under the journal title in the law usyd database journals § E.g. (2003) PLR • Tells you need to find PLR journal.

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CaseBase tabulates how a case has been treated in the cases referring to searched case:

o AustLII ‘Note Up’ Function: - Finds primary and secondary sources connected to case - NOTE: links not curated by legal editors = little indication abt relevance of the citing case and whether it was judicially considered or mentioned in passing. - Accessing LawCite and NoteUp links: o Cited by link on right MODULE 4: Legislation = primary sources of law Types of Legislation: - Acts: laws passed by Parliament o Bill: draft of proposed Act o Provide framework for how rules governing specific matters will apply - Delegated Legislation: legislation made by authority granted by an Act, usually govt departments o Provides more specific detail about when, where and how the rules work. The Legislative Process:

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First reading: introduces Bill to House along w explanatory memorandum Second reading: occurs immediately after first reading and involves a member of House (minister e.g.) making a second reading speech explaining purpose, general principles and effect of Bill. Second reading debate: occurs on later date o If agreed to in principle, passes to consideration in detail (considered clause by clause) or referred to committee (that has expertise in the subject area of Bill) Third reading: final stage and formality. If majority agree to pass Bill = bill passed in House. Bull passed to second house. Hansard: official report of the proceedings of Parliament: o Second reading speeches and second reading debates available here.

Principles and Amending Acts: - Legislation may be principal or amending - Principal Act: original act passed by Parliament which is subject to future amendment o E.g. Native Titles Act 1993 (Cth) o Referred to as Acts ‘as made’ or number acts (practice of including a sequential number to Acts as they are passed by Parliament throughout the year e.g. Native Title Act No.10 of 1993) - Amending act: makes changes to another act (usually principal act) o Amendment will appear but not always § E.g. Native Title Amendment Act 1998 (Cth) Structure of an Act: - Contents: list all sections and provisions in the Act - Name of Act: name by which Act is known and cited =. o Know as Short Title in some jurisdictions. - Long Title: summarises scope or purpose of Act - Definitions: defines terms within context of Act - Schedules: inserted at end of the Act.

o Contain variety of additional information about the operation of the Act. Date of Assent and Date of Commencement of Acts: - Date of Assent: date that bill is signed by Governor or Governor General and becomes law - Date of commencement: date that act comes into operation o Diff sections within an Act may come into force at diff dates o Acts, or sections, can commence on: § Date of assent § Date to be proclaimed § Specific dates § 28 days after royal assent How to Cite an Act: - Begin w short title of Act in italics - Year in which act was originally passed (in italics) - Abbreviated form of jurisdiction in parentheses - Pinpoint citation o If required Authorised legislation websites: - Federal Register of Legislation o Acts in force: List current versions of Acts § Includes any amendments that have been made since commencement. o Legislative instruments: Delegated legislation o Legislative Instruments in Force: current versions o ‘As made’ : form in which the act was made – excluding amendments o ‘no longer in force’: acts that have been repealed or ceased to have legal affect. - NSW legislation o Browse in Force and Repealed: gives list of in force and repealed legislations § NOTE: delegated legislation is referred to as regulations o To find ‘as made’ legislation: click on Search or Browse as Made How to use Endnotes in Act to trace Legislative History: - 2 tables found in Endnotes: o First table: Legislation History or Table of Amending Instruments § Date of commencement of legislation and chronological list of all amending legislation can be found o Second table: “Amendment History’ or table of amendments § Provides list of changes to the legislation section by section. - How to find it: o Federal § Scroll down to Schedule 1, click it and then scroll to endnotes and then legislation History. o NSW

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Go to legislative history and then go to history notes.

Citing Bills:

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NOTE: the Bill is not in italics

Extrinsic Materials and their Importance: - Extrinsic materials are related to an Act o Held interpret the meaning/intention of an Act - S 15 AB of Acts Interpretation Act 1901 (Cth) and section 34 of the Interpretation Act 1987 (NSW) lists typed of extrinsic materials that can be relied upon to interpret an Act, e.g.: o Treaties o Report of a Royal Commission, Law Reform Commission or Parliamentary committee o Explanatory memoranda § Referred to in NSW as explanatory notes relating to Bill § Most commonly used § Older EM available in print • Use https://www.aph.gov.au/About_Parliament/Parliamentary_De partments/Parliamentary_Library/Browse_by_Topic/law/expla nmem to check if EM for a Bill (Federak) • Use http://www.lawcourtslibrary.justice.nsw.gov.au/ to check if EM for a Bill (NSW) § How to cite:

• o Second reading speech of the minister responsible for introducing a Bill § Most commonly used § How to cite:

• o Parliamentary denotes relating to a bill § Reported in Hansard

How to find Extrinsic Martial via the Parliamentary Legislation Bills Legislation: - Search for Bill o Progress shows how the Bill has moved. o The right hand side of screen show the extrinsic material available to use. How to find Extrinsic Martial via the Parliament of NSW (Bills) - Search for Bill o Explanatory Notes gives explanatory memoranda. Researching Legislation across Jurisdictions by Topic: - AustLII: provides access to legislation from all Australian jurisdictions. o Advanced search function which means you can search for legislation on a topic across all jurisdictions o How to search: § Click on search and advanced search from drop down menu § Deselect databases and choose the one you want. § Then enter the search - Lawlex: free subject index to legislation. o How to search: § Browse legislation and choose desire category and any subcategory. § Can include or exclude particular jurisdictions. MODULE 5: - Use: o AND §

Gives you a closer connection between the 2 parts • E.g. negligent AND doctor

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To get the phrase as it is • E.g. “moral rights”

o (YEAR) § To restrict data to particular year if no data restrictions field given • E.g. AND (2016 OR 2017) o ? à use in AustLII § Gives variant spellings – helpful when words have diff spellings • E.g. defen?e è defence, defense § NOTE: cannot use ? as first character of search o * à use in CaseBase § Gives variant spellings – helpful when words have diff spellings • E.g. defen*e è defence, defense § NOTE: cannot use * as first character of search

Lexis Advance and Westlaw: - Advantages: o To get full text when you have citation o Research law of foreign jurisdiction e.g. US, ...