Research Workshop Notes PDF

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Legal Research Workshop Notes (Week 1) My library quick links:

1. 2. 3. 4. 5. 6.

Ask us: contact library staff for help or advice Borrowing: check and renew loans Course resources: view learning resources Printing balance: check printing balance Room bookings: book library rooms Search bar: search for library resources

Legal research guide is used for: 1. Dictionaries and encyclopaedias 2. Journal databases 3. Cases 4. Legislation 5. News 6. Australian Guide to Legal Citation Primary vs. Secondary Sources Primary Sources (the law as stated) Legislation Case Law

Secondary Sources (discusses the law) Encyclopaedias and dictionaries Journal Articles Books Commentary/loose-leaf

Elements of a case citation ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Party names Publication year Volume number Law report abbreviation

Commencing page number

Steps to locating a case by citation: 1. Access legal research guide 2. Select case law tab 3. Look up abbreviation of law report series 4. Click on the online link or find on shelves If the law report series cannot be found using the A-Z list, go to the ‘select tool’ and use the drop-down box to use another abbreviation directory. Then search for holdings of the report in UQ Library Search. Legal Research Strategy Legal situation or scenario  Analyse and plan  Research secondary  Research primary  Apply the law How to analyse and plan:

Underline topic words (main concepts/issues) Circle task words (verbs – what you have to do e.g. compare) [Bracket limiting words] (e.g. date, jurisdiction, type of resources) Legal dictionaries: - Identify meaning of words – both common and legal meaning - Identify synonyms and related terms Point to relevant legislation and case law This can be found in the Legal Research Guide  Get Started Legal encyclopaedias: - Provide solid introduction to area of law - Point to relevant legislation, case law and secondary sources - Cross jurisdiction This can be found in the Legal Research Guide  Get Started Avoiding plagiarism To avoid plagiarism, you must give credit whenever you: - Paraphrase or directly quote from someone’s actual spoken or written words - Use another person’s ideas, opinions or theories - Make use of pieces of information, such as statistics, graphs, drawings, that are not common to knowledge You can avoid unintentional plagiarism by: - Using quotation marks around everything that comes directly from a text or article - Summarising ideas and arguments in your own words - Correct paraphrasing and acknowledging of original ideas - Checking your summary against the original text - Correctly referencing all sources used

Legal Research Workshop Notes (Week 2) Books - In-depth coverage of topic or practice area - References case law/legislation - Longer publishing cycle Can be accessed through Library Homepage  Library Search

Looseleaf services

Looseleaf services are publications designed for practicing lawyers and will contain many of the resources a lawyer will need to understand the law of a particular practice area, including: a. Legislation b. Case law c. Commentary and annotations  Looseleaf services are generally updated more regularly than books and are often published online These can be accessed through Legal Research Guide  Looseleaf OR Subject Guides  Looseleaf 

Reports and Policy Documents  Reports and other research materials be produced by government departments, law reform commissions, and parliamentary committees. These can be invaluable in understanding existing law or potential reforms of the law.  Law Reform Commissions o Each jurisdiction in Australia has a Law Reform Commission. The function of the commission in each state is to review and reform the law o You can also search individual commission websites, or collectively search Australian Law Reform Library on AustLII  Parliamentary Reports o Reports may be created by Parliamentary Committees or departments within the Parliament i.e Parliamentary Libraries o Search the relevant Parliamentary website  Government reports o Government departments produce reports to publish them on their websites. These can sometimes be difficult to find if there has been a change in government Journals and Journal Articles What is a journal? - Concerns a particular discipline or subject area - Are published regularly (weekly, monthly, quarterly) - Contains articles, book reviews and editorial content Why use articles? - Authoritative and often peer-reviewed - Current - Digestible (with an easily understandable structure: abstract, introduction, methodology, discussion and conclusion) - Provides information on a specific topic - Answers a specific question (presents findings) Australian databases: - AGIS Plus Text - Lexis Advance - Westlaw AU International sources - World Journals on Westlaw - Westlaw UK - Hein Online - Lexis Advance US To access these sources, go to Legal Research Guide  Journal articles Searching databases

 

Most modern databases use natural language searching. This allows users to search for terms in a more natural way, or any order, and relies on an algorithm to retrieve relevant results e.g. tort for invasion of privacy in New Zealand Other databases require the use of search operators to be effective e.g. tort AND privacy AND New Zealand

Keywords For our research question we want to find articles that discuss a cause of action for invasion of privacy. From the research topic, along with the reading we have already done, we can identify some keywords we will use to search for information. Action Tort

Breach Invasion Intrusion

Privacy Solitude Seclusion

Searching AGIS

Getting an article - Easy if available online - If not available and only reference/citation to article: a. First try searching for the article title in UQ Library Search b. If that doesn’t work, find the full title of the journal it appears in (this may be abbreviated) c. Search UQ Library Search  Journals to see if held by the Library d. Select database (look for year ranges) e. Search relevant database OR browse by year/volume/issue/page

Legal Research Workshop Notes (Week 3) Case Law  Cases are often written records of a judge or judges reasoning applied to a particular dispute  Sometimes they are referred to as judgements or decisions. Cases with precedential values are sometimes called authorities.  Significant cases have traditionally been published in the law reports Locating foreign case law

Key databases for foreign case law research: - ICLR Online - Westlaw UK - Westlaw - Lexis Advance US - Hein Online If you have the citation, go to Legal Research Guide  Case Law  Find case by abbreviation Case Citators are specialist tools used in legal research which provide information about a case: - Status of the case - Subsequent judicial treatment - Parallel citations - Journal articles that comment on the case The two primary case citators are: - Case Base (Lexis Advance) - FirstPoint (Westlaw)

Case status Citators provide information on the status of the case using a system of colour-coded symbols or flags Colou r

Treatment

Description

Negative

A red flag or symbol indicates the decision has been reversed on appeal, or subsequently disapproved or overruled on at least one point of law A yellow flag or symbol indicates the decisions has subsequently been distinguished, explained, not followed. It may have some negative history but has not been reversed or overruled A green symbol indicates that the decision has been applied, approved, followed, affirmed or upheld or, alternatively, that has received no direct or negative indirect treatment

Cautionary

Positive

Judicial consideration of cases Case citators can be used to check subsequent judicial treatment. Citators use a system of annotations to indicate judicial treatment.

1. Litigation history - Affirmed or reversed on appeal 2. Cases referring to this case (Case Base) / Cases Citing (FirstPoint) - Disapproved, overruled (negative treatment) - Distinguished, not followed (cautionary treatment) - Applied, approved, followed (positive treatment) - Cited, considered (neutral treatment) How cases are published  Certain types of trials (jury trials) or courts (Magistrates Courts) will usually not produce decisions  Courts routinely publish their judgements online (these are sometimes called ‘unreported judgements’)  Unreported judgements use a neutral medium citation style  Baird v State of [2006] FCAFC 162 Queensland Party names Year Court abbreviation Judgement number 

A case may be ‘reported’ (published in a law report series) if it is considered to be significant. In fact, it is not uncommon for a judgement to be published in multiple law report series

Parallel citations  A decision may be published more than once. Case citators can help you locate parallel citations

Which version to cite? A reported version of a case should be cited in preference to an unreported version. Where a case appears in an “authorised” report series, this series should be cited in preference to any other reported version (Australian Guide to Legal Citation, p. 48). Versions of case Authorised reported case Unauthorised reported case Unreported case

When to cite Always cite if available If no authorised reported version is available If no other version is available

Three steps to locating the correct version to cite: 1. Identify the court that issued the decision 2. Check the authorised report table (via the Legal Research Essentials) to find the relevant report series 3. Locate the correct citation from the citator document Finding cases by topic Case citators offer a range of ways to locate case law by topic  Catchwords field (searches catchwords, headnotes, digest and summary)  Classification field on FirstPoint (searches by legal concept)  Words and phrases (searched to see if a word has been judicially defined)  Free text field (searches full text of case citator)

Search in more than one field if necessary Judicial consideration of legislation Many legal databases allow you to search for decisions in which a judge has considered how a particular act/regulation and section should be interpreted. In Lexis Advance:  Select Advanced Search and Cases  In Legislation Title field enter Act title  In the Provision Number field enter the section number (don’t need to add the ‘s’) In Westlaw AU  Select Cases from the left-hand side navigation bar  In the Legislation Cited (Title) field, add the Act title  In the Legislation Cited (Provision) field, add the section number Other sources

Legal Research Workshop Notes (Week 4) Legislative research terminology  Legislation is an umbrella term for: o Acts, Acts of Parliament – laws formally passed by Parliament and given Royal Assent. Acts are sometimes referred to as statutes o Delegated legislation – laws made by bodies other than Parliament under authority granted by an Act of Parliament. There are a variety of terms given to delegated legislation: - subordinate legislation - subsidiary legislation - legislative instruments - statutory rules - regulations Life Cycle of an Act

Citation of an Act Statutory Instruments Act Act Title (‘short title’)  

1992 Year passed

Qld Jurisdiction

Acts typically cited by their short title Occasionally, they may be cited using their Act Number i.e. No. 22, 1992 (Act number 22 of 1992)

Acts also have long titles: ‘An act relating to statutory instruments and for other purposes related to legislation.’ Citation of historical legislation Workman’s Compensation 1906 6 Edw 7 c 58. Act Act Title Year passed Monarch’s regnal Chapter, number name 

Note: 6 Edw 7 is the 6th year of the reign of Edward 7th. Locating current acts Legislation usually published in official government websites Commonwealth legislation - Federal Register of Legislation - https://www.legislation.gov.au/ Queensland Legislation - OQCP website - www.legislation.qld.gov.au Lexis Advance / Lawlex / AustLII - sites that include legislative materials from all Australian jurisdictions Assent and commencement When a bill is passed by Parliament, it must receive Royal Assent before it becomes and Act.  By Governor General/Governor  Assigned Act Number for year assent given Act will not be in force until it commences  May commence: - On assent - On a specified date - On a date to be proclaimed Where to find this information:  Royal Assent: - For Queensland: either legislative history  list of legislation  underneath title OR endnotes  list of legislation  underneath title (if looking in the PDF) - Commonwealth: endnotes  legislation history  besides title - Gazette  Commencement information can be found: - Section 2; or - For Queensland: either legislative history  list of legislation  underneath title OR endnotes  list of legislation  underneath title (if looking in the PDF) - Commonwealth: endnotes  legislation history  besides title of Act Amendment During the currency of an Act, its provisions may be changed by amending Acts passed by Parliament When a version of an Act is produced that incorporates those changes it is referred to as a: • reprint • consolidation • compilation

When answering a legal question, it is vital that reference is made to the law that was applicable at the relevant point-in-time the question arose Questions to ask: • Was that legislation in force at that time? • How were the provisions worded at that time? Locating historical versions •

• •

To locate ‘point in time’ (reprints, consolidations, versions) Acts, look for following phrases in legislation websites: • historical versions • Superseded • ‘view series’ Most superseded reprints/compilations since 1990s available electronically on government legislation websites Older ones may be available in paper or through a digitisation program eg: • Ozcase or Austlii

Tracking changes to sections Information on how a provision of an Act has been changed over time is set out in the “annotations” • Annotations are contained in the Endnotes of the most recent reprint / compilation / version • You can view the annotations in the Queensland Legislation website by turning ‘History Notes On’. Annotations detail the type of change and which Act made the change: • Ins = inserted • Amd = amended • Sub = substituted • Rep = repealed Steps for tracking changes Steps to tracking changes to section: 1. Look in annotations or ‘history notes’ of most current version to find relevant section number 2. Find Act number that amends, substitutes, repeals 3. Look in the List of Legislation (located immediately above annotations) Privacy complaint may be made or referred to information commissioner S 165 amd 2013 No. 36 s 331 sch 1 Parliamentary Process: Queensland

Interpreting legislation Extrinsic material: useful to have recourse to documents evidencing the context within which the legislation was made  Material before Parliament  Law reform reports  Government policy/Public consultation Parliamentary materials: Bills  A Bill is the draft of the legislation that was introduced into Parliament for consideration  A Bill may be amended while before Parliament before it is passed  Copies of Bills can be access from: - Parliamentary websites - Government legislation websites - Lexis Advance Explanatory notes/memorandum Different terminology for different jurisdictions • Cth = Explanatory Memorandum • Qld = Explanatory Note This is a plain English explanation of the Bill • What it is attempting to achieve • What the provisions mean / do Only mandatory in Qld from 1990 Explanatory Speech: this is a speech by the Minister introducing the Bill before Parliament explaining the reason why the Bill is being introduced and what it is hoped to achieve. Also called the “Second Reading Speech” • Terminology depends on stage of the parliamentary process when speech given • Current procedure in Qld is for the speech to be given on introduction of the Bill • Prior to August 2011, the speech was given in Qld at the second reading stage Law reform Law Reform Commissions are independent bodies • Usually one in each jurisdiction • Links available on the Legal Research Guide • Reports often available electronically on websites Reports provide: • Comprehensive analysis of present law • Extensive examination of law reform proposals Where: LRG > Legislation > Law Reform Library (AustLII)...