Law Databases Exercise

Law Databases Exercise

assignment is basically about exercising and accessing Law Databases in Australia. the teacher asked us to use those databases to look up to some cases, some legislations, and also to make us learn how to cite in legal way.

You are not required to write huge amount of words on this assignment, just answering some short answer questions. Please follow the instruction given and please place the answers below the questions.

TOPIC 1 – INTRODUCTION TO LEGAL MATERIALS

Primary, secondary and hybrid sources of law

Legal materials can be classified in the following way:

EXERCISE 1 – Legal materials

Distinguish between the following resources – are they primary, secondary or hybrid legal materials?

1.    Royal Commission Report – secondary
2.    Journal article – secondary
3.    Minister’s second reading speech – secondary
4.    Act of Parliament – primary
5.    Press release – secondary
6.    Court rules – primary
7.    Local government ordinances – primary
8.    Treaties – primary
9.    ATO public rulings – secondary
10.    Case notes/case digests – secondary
11.    Bills of Parliament – secondary
12.    Textbooks – secondary/hybrid
13.    Explanatory memorandum – secondary
14.    Law Reform Commission Report – secondary
15.    Legal encyclopaedia – secondary
16.    Court judgment – primary
TOPIC 2 – SECONDARY MATERIALS

Secondary materials can be accessed in traditional printed formats or electronically.  These can be found in a number of ways:
1.    Accessing freely available databases such as Austlii (www.austlii.edu.au) or government websites (eg www.parliament.nsw.gov.au; www.aph.gov.au; www.humanrights.gov.au; www.asic.gov.au; www.ipaustralia.gov.au; www.aic.gov.au; www.justice.nsw.gov.au ).
2.    Accessing databases to which our Uni subscribes. To access these subscription databases, go to Faculty of Law homepage, Law Library
Select: Find databases
a) Select the letter of the title of the resource, eg LexisNexisAU; Informit; Westlaw AU
b) Scroll to desired resource
c) Click on title of resource

A.    Legal abbreviations

(a)    CaseBase –  How do I…?,  abbreviation/subject list.
(b)    LexisNexis AU – Home page, Dictionaries red tab, Browse, Encyclopaedic Australian Legal Dictionary, View Tables and appendices, Table of abbreviations and Table of law reports.
(c)    Westlaw AU – Home page, click on Help in blue banner, User guides tab, Content guides, Tables of abbreviations for cases, journals, encyclopaedia and legislation/commentary.
(d)    Cardiff Index to Legal Abbreviations – http://www.legalabbrevs.cardiff.ac.uk/
EXERCISE 2 – Abbreviations

Find the meaning of the following:

(a)    CLR – commonwealth law report
(b)    UNHCR – united nation high commissioner for refugees
(c)    ACJ – acting chief justice
(d)    UNTS – united nations treaty series
(e)    Gaz – gazette
(f)    EOC – equal opportunity cases
(g)    LGERA – local government and environmental reports of Australia
(h)    JA – judge of appeal
(i)    Subss – subsections
(j)    r
(k)    VC –
(l)    IR – industrial reports?

B.    Legal dictionaries

(a)    Butterworths Australian Encyclopaedic Legal Dictionary
Access via LexisNexis AU, Dictionaries tab. This provides definitions of legal words and phrases, principles of law and some biographical information about notable people in the legal world.  There is also a hard copy of the Butterworths Concise Legal Dictionary available in the Law Library.

(b)    Australian Law Dictionary (2nd ed)
Available in hard copy at LREF/ K127/A3/2. Published by Oxford University Press, 2013. First edition (2010) would also be fine to use.  Also available as an ebook via Library Catalogue.

(c)    Australian Legal Words and Phrases
Access via LexisNexis AU, Dictionaries tab. This is an index to words and phrases defined in Australian legislation or judicially considered (ie interpreted) in superior court judgments, as opposed to a dictionary complete with definitions.

EXERCISE 3 – Legal dictionary

Find definitions of the words and phrases below. Write out a summarised definition for each, including a reference to a case and/or piece of legislation, if appropriate.

1.    Estoppel – the doctrine design to protect a person

2.    habeas corpus – originally a type of writ issued by a superior court allowing a prisoner to have himself or herself removed from prison and be brought before the court to have the matter for which he or she was being detained determined.

3.    bill of lading – a document which evidence a contract for the carriage of goods by sea and functions as a receipt for them.

4.    legal professional privilege – a common law principle protecting the confidentiality of statement and other materials made between a legal practitioner and client where those statements and other materials have been made or brought into existence for the dominant purpose of the client obtaining, or the legal practitioner giving, legal advice of for the use in existing or contemplated judicial of quasi-judicial proceedings.

5.    Boilermakers case – a case concerning the separation of the judicial and non-judicial powers of government in the (CC) Commonwealth Constitution.

6.    Sir Owen Dixon – Judge

C.    Materials via the Library catalogue (including books)

Library Search – Library Search is a discovery tool that helps you get started. You can find books and online resources in one easy search. It has different search features that allow you to refine your searching more quickly and to limit by available and full-text online resources. All items, including course materials, High Use Collection, exam papers, books, journal titles.

EXERCISE 4 – Library catalogue/finding books

This worksheet is designed to familiarise you with searching for books and other materials using the UNSW Library Catalogue.

First of all, sign in to the library database using “MyLibrary”.  Add the results you find from the following searches to your e-shelf.

(a)    Search for a book written by Garth Nettheim on native title.
What is its title? “Mabo” and the native title legislation : papers presented for the continuing legal education department of the college of law on Wednesday 18th May 1994

What is its call number? (LQ/KM208.433/M5/1)

Is it currently on loan? no

(b)    What categories can results be sorted into? Note down two of them.
Author, subject.

(c)    Search by title to find The Process of Law in Australia (remember not to type in leading articles such as “the” when searching by title).
Who is the author? Greta Bird

How many editions are there? 2

(d)    Search for material on police integrity.
How many results are books which are available in the Law Library? 12

Are there any differences when using quotation marks around the search terms? It narrows the search to only looking for two words that are connected.

(e)    Search for material by Jane McAdam on asylum seekers.
What is the title of the first book?  Is it available in the library?
10 Non-Refoulement through time : the case for derogation clause to the refugee convention in mass influx emergencies. It’s all ebooks.

What is the name of the first result in a journal? Australia and asylum seekers.

D.    Looseleaf services

Looseleaf services are usually aimed at legal practitioners so can have a practical (rather than academic) perspective, but they are also a useful resource for students. They generally provide a detailed overview of the law on a particular topic, often including relevant legislation followed by expert commentary with analysis of case law (also known as an annotated Act).  As the format of a looseleaf service allows it to be updated more regularly than a textbook, it can be a useful resource for tracking the current state of the law.

(a)    LexisNexis AU – Home page, Commentary red tab.  Click on the “Sources” drop down box to see the titles of the looseleaf services that are available.
(b)    Westlaw AU – Home page, Content type, Legislation and commentary, Product title.

E.    Legal encyclopaedias

These are useful for giving a concise summary of the law, including any relevant legislation or case law.

There are two legal encyclopaedias produced in Australia:
(a)    The Laws of Australia, accessed via Westlaw AU, Home, Encyclopaedia, The Laws of Australia.
(b)    Halsbury’s Laws of Australia, accessed via LexisNexis AU, red commentary tab, under Sources highlight Halsbury’s Laws of Australia OR you can select the encyclopaedia directly from LexisNexisAU’s home page.

Both encyclopaedias are arranged into different legal topics, and then examined according to legal principles.  The legal principles are supported by references to either case law or legislation.  Note that each paragraph is preceded by a currency date.  This date should always be kept in mind, as the references may not always be completely current.  Some updating of the law may therefore be necessary.

EXERCISE 5 – Legal encyclopaedias

A.    Use The Laws of Australia to answer the following questions:

1.     Does the Australian Constitution protect freedom of religion?

•    What search terms did you use?
Free text : constitution and “freedom of religion”

•    Note down where in The Laws of Australia you found information on this topic (ie the relevant title and paragraph number/s).
+90 Constitutional Law – VII Rights and Freedoms – (5) Freedom of religion

•    Include the full citation to some relevant cases, legislation and/or journal articles mentioned in the encyclopaedia entry.
–    Commonwealth Constitution s 166
–    Church of the new faith v Cmr of Pay-roll Tax (Vic) (Scientology Case) (1983)

2.     Can an accused person be unrepresented at trial?

•    What search terms did you use?

Accused and unrepresented

•    Note down where in The Laws of Australia you found information on this topic (ie the relevant title and paragraph number/s).
11. criminal procedure – 11.9 legal representation and legal aid – 2 legal representation – unrepresented accused at trial – right to fair trial – general –

•    Include the full citation to some relevant cases, legislation and/or journal articles mentioned in the encyclopaedia entry.
–    Dietrich v The Queen (1992)
–    Tomasevic v Travaglini (2007)
–    R v Manolakis [2007]

B.    Use Halsbury’s Laws of Australia to answer the following questions:

3.    What different types of visas are available to non-Australian citizens?
Permanent and temporary visa.

•    What search terms did you use?

Visa type or type of visa

•    Note down where in Halsbury’s Laws of Australia you found information on this topic (ie the relevant title and paragraph number/s).
77 citizenship and migration – (3) migration – (e) Visa – (II) Classification of Visa

•    Include the full citation to some relevant cases, legislation and/or journal articles mentioned in the encyclopaedia entry.
–    (CTH) Migration Act 1958 s 30(1)
–    Ibid s 31(1)
–    Ibid s 5(1)
–    Ibid ss 38, 141-164.
–    Ibid ss 37, 72-76
–    Ibid ss 38A, 164A-164D
–    Ibid s 5(1) (definition of ‘substantive visa’).
–    (CTH) Migration Act 1958 ss 31(2), 31(3), 32-38.

4.     What are the possible remedies for passing off (in relation to intellectual property)?
Besides an injunction,1 which is the usual relief sought for passing off, a plaintiff may also be able to elect between the alternative remedies of damages and an account of profits.2 Delivery up of any offending goods may also be ordered in appropriate circumstances.3

•    What search terms did you use?
Remedies and passing off

•    Note down where in Halsbury’s Laws of Australia you found information on this topic (ie the relevant title and paragraph number/s).
240 Intellectual property – V Passing off – (5) Remedies

•    Include the full citation to some relevant cases, legislation and/or journal articles mentioned in the encyclopaedia entry.

Journal articles

Journal articles are generally used to do more in-depth research on a topic.  The information in articles is generally more up-to-date than that found in books as they can be published more frequently.

1.    Journal indexes (all available via Library databases)

Journal indexes are used to locate articles.  Many indexes nowadays not only identify the article, but will provide the text of the article, or a way to link to the article, as well.
(a)     Informit databases , particularly AGIS (Attorney-General’s Information Service), APA-FT (Australian Public Affairs – full text) and CINCH (Australian Criminology Database).
(b)    Legaltrac (from the US but also indexes UK and Australian law journals).
(c)    Index to Legal Periodicals and Books (ILP) (also from the US, but covers some UK, Australian and Canadian law journals).
(d)    CaseBase (select CaseBase journal articles from the Sources drop-down box).

2.    Full text of articles

Some journal databases provide the text of the articles themselves.
(a)    Informit databases, particularly AGIS and APA-FT. This will usually contain links to the full text of the article.
(b)    LexisNexis AU Includes over 20 Australian journal series.
(c)    Legal Online or Westlaw AU Includes about 20 Australian journals and newsletters.
(d)    Hein Online This is a law journal archive, containing the full text of over 1000 journals. Mostly US, but many Australian university law reviews are also included.
(e)    Westlaw Particularly useful for finding US, Canadian or UK articles.
(f)    Austlii www.austlii.edu.au (This is a freely available database so does not need to be accessed via the Library databases.) Libraries, Law Journals articles. Takes you to front page of law journals where you can search or browse the collection.  When you search this, note that you are searching across the articles themselves, rather than a summary of them.

3.    What if the full text is not available?  Using SFX (“Find it”)

If there is an electronic version of the article, there will be a link to the full text.
If there isn’t a link to the full text, click on the SFX (now called “Find it”) button.  This should direct you to where you may be able to access the text of the article, either via an electronic database, or via a printed, or hard copy, version of the article.

4.    Using A-Z e-journals to locate journal articles held in the library databases.

To check which databases are accessible via the Library, use the “A-Z e-journals” link from the Library home page.

EXERCISE 6 – Journals

1.    Search Informit Online (remembering to select the database/s you want to use) to answer the following:

(a)    Find a reference to an article about evidence provided by experts by Gary Edmond.
•    What search terms would you use?
Advance search : Edmond Gary
Expert evidence

•    Give the article’s full name and citation.
Before the High Court
Honeysett v The Queen: forensic science, ‘specialised knowledge’ and the uniform evidence law
Gary Edmond and mehera san roque
•    Can the full text of the article be accessed?

Yes.

•    Locate another article on this topic by the same author which doesn’t have direct access to the full text and note down its full citation.  What database does SFX direct you to?
-Unsw library – westlaw AU

(b)    Are articles for the Deakin Law Review indexed in Informit?
Yes. (click on browse publications)

(c)    Is the University of Tasmania Law Review a peer reviewed title?
Yes it is a peer reviewed journal.

(d)    Search for an article by Jill McKeough on copyright issues.
•    What terms did you use in the search?
Author: Jill Mckeough
Subject: Copyright Issues

•    Give the full name of the article and its citation.
Copyright Review: Issues for cultural practice

MCKEOUGH, JILL1,2,3. “COPYRIGHT REVIEW: ISSUES FOR CULTURAL PRACTICE.” Deakin Law Review 17, no. 2 (July 2012): 309-319. Index to Legal Periodicals and Books (H.W. Wilson), EBSCOhost (accessed August 4, 2015).

(e)    Find two recent articles dealing with possible reforms to the current tribunal system in NSW.
•    What search terms did you use?
Tribunal system NSW

•    Note the articles’ full names and citations.
– REFORM of the NSW Tribunal System. [online]. AIAL FORUM; (73) July 2013: 12-29. Availability:<http://search.informit.com.au.wwwproxy0.library.unsw.edu.au/fullText;dn=20132490;res=AGISPT> ISSN: 1322-9869. [cited 04 Aug 15].

Boland, Roger; Eastman, Kate; Wilson, Alan; Pearson, Linda; Groves, Matthew and Parry, David. Reform of the NSW tribunal system: edited version of papers presented at seminar of AIAL (NSW Chapter) [online]. AIAL Forum, No. 73, July 2013: 12-29. Availability:<http://search.informit.com.au.wwwproxy0.library.unsw.edu.au/documentSummary;dn=201221614;res=IELAPA>ISSN: 1322-9869. [cited 04 Aug 15].

•    Can you find the articles in full text?
yes

2.    Use the Index to Legal Periodicals to answer the following:
(a)    Find two articles relating to the clash between environmentalists and Japanese whaling ships in the Southern Ocean.
•    What search terms did you use?
Japanese whaling and environmentalist

•    Give their full names and citations.
Lovable pirates? The legal implications of the battle between environmentalist and whalers in the Sothern ocean

Amanda M. Caprari – volume 42 – July 2010 – Number 5

(b) Find two articles by Sir Anthony Mason published in overseas law journals.
•    What search terms did you use?
Sir Anthony mason

•    Give their full names and citations.
-Chief Justice Li: A tribute (Hong Kong law journal 2011-2012)
-Human rights interpretation, declaration of inconsistency and the limits of judicial power (New Zealand journal of public and international law)

3.    Use Legaltrac to complete the following:
(a)    Find two articles from Canada which discuss Mabo.
•    What search terms did you use?
Mabo and Canada

•    Give their full names and citations.
The vulnerability of indigenous land rights in Australia and Canada by Kent McNeil

(b)    Find an article discussing with the legal impact of oil spillages in Australia.
•    What search terms did you use?
Oil spill Australia

•    Note the article’s full name and citation.
The Kirki oil Spil: Pollution in Wester Australia

Citations:
– International Law and Oily Waters: A Critical Analysis [article]
Colorado Journal of International Environmental Law and Policy, Vol. 6, Issue 1 (Winter 1995), pp. 31-60
Ellis, E. Jane (Cited 1 times)
6 Colo. J. Int’l Envtl. L. & Pol’y 31 (1995)
– Bibliography [index]
Rutgers Computer & Technology Law Journal, Vol. 19, Issue 2 (1993), pp. 539-604
19 Rutgers Computer & Tech. L.J. 539 (1993)

•    Can you find the article in full text?
Yes

4.    Choose an appropriate electronic database to answer the following:

•    Note the names and citations of  two Australian articles discussing parents who kill their children.
– Parents who killed children by Dr Debbie Krikwood
– Felicide-Suicide: Common Factors in Parents Who Kill Their Children and Themselves by Hatters Friedman, Hrouda, Holden, et al.

•    What database/s did you use?
Informit
LegalTrac

•    What search terms did you use?
Parents killing children

•    Where can you locate the full text of the articles?
From “find it” link

•    Are there any cases that deal with this issue? (Note – you may need to use another database to find this information.)
Yes there’s plenty of it on CaseBase, LegalTrac and Informit

F.    Parliamentary materials

Legislative guidance on how to interpret an Act can be found in the relevant jurisdiction’s interpretation legislation.  For NSW, it is the Interpretation Act 1987 (NSW) (“NSW Act”), and for the Commonwealth, the Acts Interpretation Act 1901 (Cth) (“Cth Act”).

These Acts specify when extrinsic materials can be referred to in interpreting an Act (Cth Act s 15AB(1); NSW Act s 34(1)), as well as the types of extrinsic materials which can be referred to in assisting in this interpretation (Cth Act s 15AB(2)(a)-(h); NSW Act s 34(2)).

It is important to be able to find these different types of extrinsic materials.

The starting point is the relevant parliamentary website –
•    for Commonwealth, www.aph.gov.au
•    for NSW, www.parliament.nsw.gov.au
•    other states and territories have their own parliamentary websites with similar search and browse options.

Type of material
How to find – Cth
How to find – NSW
Bills    •    Advanced/Parlinfo search, Guided search, documents relating to a bill, choose “Explanatory Memoranda”
•    Select Parliamentary business, Bills and legislation, use search or browse    •    Advanced search, select bills
•    Select Bills, browse
Explanatory memorandum/note    •    Advanced/Parlinfo search, Guided search, documents relating to a bill, choose “Explanatory Memoranda”    •    Advanced search, select Bills
•    Select Bills, browse
Second reading speech    •    Advanced/Parlinfo search, Guided search, second reading speeches for bill
•    Select Parliamentary business, Hansard, use search or browse    •    Advanced search, select Hansard
•    Select Hansard, Hansard overview/Both Houses by date
Parliamentary debates    •    Advanced/Parlinfo search, Guided search, speeches by a senator or member
•    Select Parliamentary business, Hansard, use search or browse    •    Advanced search, select Hansard
•    Select Hansard, Hansard overview/Both Houses by date
Parliamentary committee report    •    Advanced/Parlinfo search, Advanced search, Browse tab, select relevant Committees sections
•    Select Parliamentary business, Committees, use search or browse    •    Advanced search, select Committees
•    Select Committees, browse through current inquiries, reports etc
Royal Commission Report    About Parliament, Parliamentary Departments, Parliamentary Library, Browse by Topic, Key internet links on law
Royal Commissions and Commissions of Inquiry

Law Reform Commission Reports    www.alrc.gov.au/publications
www.lawreform.lawlink.nsw.gov.au

EXERCISE 7 – Parliamentary materials

1.    Find a copy of the Bail Bill 2013 (NSW).

•    Into which house was it initially introduced?

•    Who gave the second reading speech in the Legislative Council? On what date?

•    What was the date of assent?

2.    Find a copy of the bill which deals with the repeal of the carbon tax.

•    Give the date/page number of the most recent comments by Clive Palmer about this bill.

•    What stage is the bill now at?

3.    How would you find a copy of the explanatory memorandum for the carbon tax repeal bill?  Note down the steps or links you used to do this.

G.    How are secondary sources cited?

(a)    Books (see AGLC 5.1 ff)

|authors|, |title of book|, (|publisher|, |*place of publication|, |edition no if not first edition|, |year|)

eg Michael Brogan and David Spencer, Surviving Law School (Oxford University Press, Melbourne, 2nd ed, 2008) 190-192.

* NB. The UNSW Law Faculty differs from the Australian Guide to Legal Citation in that it recommends the place of publication be included. For example, Prue Vines, Law and Justice in Australia: Foundations of the Legal System (Oxford University Press, Melbourne, 2nd ed, 2009).

(b)    Edited books

|editors| |(ed)|, |title of book|,  (|publisher|, |*place of publication|, |year |)

eg Gerald Postema (ed), Philosophy and the Law of Torts (Cambridge University Press, Cambridge, 2001)

(c)    Chapter in an edited book

eg Claire Young, “Public Taxes, Privatising Effects and Gender Inequality” in Susan Boyd (ed), Challenging the Public/Private Divide: Feminism, Law and Public Policy (University of Toronto Press, Toronto, 1997)

(d)    Journal articles (see AGLC 4.1 ff)

|author(s)|, |’title of article’| |(year)| |volume| |name of journal| |page on which article starts|

eg Christian Witting, ‘Breach of the Non-delegable Duty: Defending Limited Strict Liability in Tort’ (2006) 29 University of New South Wales Law Journal 33.

|author(s)|, |’title of article’| |(year)| |volume| |issue number, where the pages do not cumulate| | full name of journal| |page on which article starts|

eg David Ash, ‘Is it spelt ‘judgment’ or ‘judgement’? (2005) 43 (1) Law Society Journal 62

(e)    Internet materials (see AGLC 6.15)

|author(s)|, |document title| |(full date)| |website name| |<URL>|

eg Susan Burn and David Marcus, The New Australian Consumer Laws and Funds Management (11 January 2010) Allens Arthur Robinson <http://www.aar.com.au/pubs/fmres/fofrmresja>

(f)    Parliamentary debates/Hansard (see AGLC 6.1.1)

|Jurisdiction|, |Parliamentary Debates,| |Chamber|, |Full date of debate|, |Pinpoint||(name of speaker)|

eg New South Wales, Parliamentary Debates, Legislative Assembly, 14 April 2014, 1514-15 (Andrew Stoner).

EXERCISE 8 – Referencing secondary materials

Rewrite the following references so they use the correct style as set out in AGLC3.

Law and Justice in Australia by Prue Vines, 2nd edition, 2009, Oxford University Press.

A charter of rights for Australia, George Williams, 3rd ed., Sydney : University of New South Wales Press, 2007

Ben Golder, Liberal law’s fear of ‘culture’, Alternative Law Journal, v.35, no.4, 2010: 194-198

Edmond, Gary ; Martire, Kristy ; San Roque, Mehera, “Unsound Law: Issues with (“expert”) voice comparison evidence”, Melbourne University Law Review, Oct 2011, Vol.35(1), p.52-112

The explanatory memorandum for the Australian Citizenship Amendment (Intercountry Adoption) Bill 2014 Commonwealth at page 30

TOPIC 3 – INTRODUCTION TO SEARCHING ELECTRONIC DATABASES

1.    Computerised legal research – terminology

Search terms
These are the actual words or combination of words the computer is asked to look for.

Boolean searching / Logical connectors / Operators
This technique allows individual terms to be connected to one another and can restrict or broaden a search. Logical connectors or operators are words which connect search terms (most commonly and, or, not) to allow boolean searching.  Remember that different databases use different connectors, and some also give automatic connectors.
Examples include:
‘Climate and change’, will find the document which will include both terms, but not necessarily near each other.
‘Climate or change’, will find the document which will include either of the terms, making it a very broad search.
‘Climate not change’, will find the documents which do not include references to ‘change’.

Proximity operators
These help you find words or phrases close to each other and include:
•    w/n will find one word within so many words of another eg climate w/5 change, will find documents including both words within 5 words of each other.  Variations could include climate change or change of climate, which are two different concepts.
•    pre/n will find one word will precede the other eg climate pre/3 change will find documents usually climate change but not highlight change of climate.
•    /p will find words in the same paragraph
•    /s will find words in the same sentence

Note that databases vary in the proximity operators that they use, so remember to check the “Help” section to ensure you are using the correct terms.

Truncation and wildcards
Use truncation to pick up many varied word endings, for example ‘neglig*’ will pick up ‘negligent’, ‘negligence’ etc. Be aware, however, that over-truncating can lead to retrieval of many irrelevant records. Use a wildcard to pick up spelling variations, for example ‘wom?n’ will locate the search terms ‘womAn’ and ‘womEn’. The symbols used for truncation and wildcards vary from database to database.

Browsing
This is similar to opening a book and looking through the contents.

Fields / Elements
Information within a database is stored in various fields. If for example you were searching for decisions of a particular judge, you would conduct your search within the ‘judge’ field. Fields are sometimes also known as elements.

2.    Some things to remember when searching

•    What is the appropriate database to use?
Think carefully about which database best suits your particular purpose. Legal research databases differ enormously in their content, ease of use, and purpose. It would waste time for example to use a full text database of cases if you are looking for an overview of a subject, or to find a citation. Choose the most appropriate tool for the particular research task.

•    What alternative terms can I use?
You will need to think about all the possible categories under which your topic or term might be found. Before beginning your search, try to think of as many alternative terms (synonyms) as possible. For example, your search for ‘nervous shock’ may be unsuccessful, as the database you are working in may categorise this as ‘mental distress’. There may be many relevant records within the database, but you will need to try a number of alternative searches to find them. Informit and ILP each have an in-built thesaurus which can help with identifying synonyms.

•    Make sure you keep records of your searches and results
Record searches which you have conducted, noting terms used, database used, and date searched. This will avoid having to waste time redoing searches, allow you to repeat useful searches in other databases, and allow updating of research with later additions to databases.  It will also assist in compiling footnotes and bibliographies. Note that many databases have a “search history” that keeps track of the searches you have already completed.

TOPIC 4 – PRIMARY MATERIALS

1.    CASE LAW

A.    How can you find the full text of a case?

1.    For unreported cases:
•    AustLII: http://www.austlii.edu.au/
Full text of cases in their “medium-neutral” or unreported versions from all Australian federal, state and territory jurisdictions.  You would use AustLII to find the text of a case if you know it is a very recent case which hasn’t had time to appear in a reported series yet (or at all).
•    NSW Caselaw website:  http://www.caselaw.nsw.gov.au
This provides on-line published judgments and decisions for selected courts and tribunals in New South Wales. Some cases contain a summary of the decision which doesn’t form part of the judgment.
•    High Court website:  http://www.hcourt.gov.au/cases
This provides links to current cases being heard, recent cases decided and case summaries back to 2006.  Links to the full text of the High Court cases take you to AustLII.

2.    For reported cases:
•    LexisNexis AU, accessed through the Library, Find Databases.
Full text of cases in a number of reported series from Australian federal, state and territory jurisdictions, including
?    Australian Law Reports,
?    New South Wales Law Reports,
?    Intellectual Property Reports and
?    Victorian Reports.
•    Westlaw AU accessed through the Library, Find Databases.
Full text of cases in a reported series from Australian federal, state and territory jurisdictions, including
?    Commonwealth Law Reports,
?    Federal Court Reports,
?    Australian Criminal Reports,
?    Queensland Reports and
?    South Australian State Reports.
•    The law library has volumes of reported cases available in hard copy on the shelves on the 1st floor.

3.    Use a case citator

Please look at the documents under the “Case citator help sheets” heading in Moodle.

Case citators allow you to find out information about a case by subject, by words and phrases judicially considered, by legislative reference, by popular name etc. They also update cases (noting up, ie determining whether a case is still good law) and annotate case references by giving references to journal articles and case notes.
There is usually a link from the case citator entry to the full text of the case.
The following are three different case citators:
•    LAWCITE
This is available as a link from the AustLII home page.  AustLII: http://www.austlii.edu.au/
•    CASEBASE
This can be accessed from the LexisNexis AU database, under the “Cases” tab.
•    FIRSTPOINT
This can be accessed from the Westlaw AU database.

B.    How can you note up/check the status of a case?

Use a case citator.

EXERCISE 9 – Locating and updating cases

1.    Use Casebase to answer the following questions.
(a)    Find the citation for Northern Territory v GPAO. (Remember, check if there is a citation from an authorised series – if there is, this is the one you should use.)

(b)    Can you link to the full text of the case using the link in Casebase?

(c)    Which judge/s decided this case?
Gleeson CJ and Gummow J.

(d)    What is the litigation history of the case?

(e)    What is the most recent Federal Court case to have judicially considered it?

(f)    Note down the name of one Commonwealth and one NT piece of legislation discussed in the case.

(g)    Note down the name and citation of one recent article about the case.

(h)    What would you consider to be the status of the case?  How have you decided this?

2.    Use Firstpoint to answer the following questions.
(a)    What is the full name of the case reported at (1973) 130 CLR 353?
Administration of Territory of Papua and New Guinea v Guba

(b)    What is the case about?  Which part of the Firspoint entry did you refer to to find out this information?

(c)    In which case was it most recently applied?

(d)    Click on “Related documents”.  Note down a relevant encyclopaedia entry and article.

3.    Use Lawcite to answer the following questions.
(a)    What is the name of the case with the medium-neutral citation of [2002] NSWCCA 35?

(b)    Does it have a reported citation?

(c)    If relevant, note down a piece of legislation that was considered in the case.

(d)    Have any journal articles been written about this case?

4.    Use the noted citators to answer the following questions.

(a)    What is the most recent High Court authority on a person’s entitlement to vote in a parliamentary election?
•    Casebase

•    Firstpoint

(b)    What search terms did you use?
•    Casebase

•    Firstpoint

(c)    Which judge/s decided this case?
•    Lawcite

(d)    Was any legislation considered in this case? If so, give details.
•    Casebase

•    Firstpoint

(e)    What are the brief facts of this case?
•    Casebase

•    Firstpoint

5.    Use Casebase to answer the following question.
(a)    Find a reference to a Federal Court case which discusses a solicitor’s breach of retainer.  Give the full citation of the case.

(b)    Conduct the same search in Firstpoint and compare your results.

6.    Use an appropriate database (noting the database you used) to answer the following questions.

(a)    Find a reference to a recent High Court case that considers s 29D of the Crimes Act 1914 (Cth). Give the full citation of the case.

(b)    Would you consider this case to still be good law?  On what are you basing your decision?

(c)    Was any other legislation considered in this case?

EXERCISE 10 – Case reading

Read Cockatoo Dockyard Pty Ltd v Gifford [2008] NSWCA 162 (copy available on Moodle under Module 3 heading) and complete the following questions

1.    Who are the parties to this action?
Cockatoo dockyard pty limited (appellant)

2.    Who is the solicitor for Mr Gifford?
Turner freeman (respondent)

3.    What does ex tempore mean?
Out of time

4.    What does ‘SC’ stand for?

5.    Is this a criminal or civil case? How do you know?
Civil case. Because it says NSWCA.

6.    What does ‘NSWCA’ stand for?
New South Wales Court of Appeal.

7.    Is this a majority or a unanimous decision?
Unanimous decision.

8.    On which courts is this decision binding?
Binding in all lower courts.

9.    What is the outcome of this action?
Cockatoo lost the case.

10.    Which legislation is considered in this case? Be specific.
Look at section 15 of the case. The civil liability act does not apply.

11.    What is the procedural history of this case?
Dust diseases tribunal of NSW on 28 sept 2007

12.    What are the material facts?
Between 1961 and 1968 the respondent was exposed to asbestos in the course of his employment with the appellant.  In consequence he contracted mesothelioma.  The diagnosis of the disease was made an 28 November 2006.

13.    Drawing on the judgment as a whole, express in your own words:
(a)    What is the legal issue in the appeal?
Assessment damages.

(b)    What are the appellant’s arguments in the appeal?
The appellant appeals on one ground only, namely, that Curtis J “erred in law in including in his assessment of general damages an amount to compensate the plaintiff for a sense of outrage at the consequences of the claimant’s carelessness”.

14.    In paragraph 15, explain why Ipp JA refers to CSR Ltd v Thompson (2003) 59 NSWLR 77.
To say that this case were covered by case law.

15.    What is Ipp JA’s reasoning in coming to his decision?
The anger was convincible. As seen in paragraph 26 “The resentment and distress in question was directly caused by the mesothelioma.”

C.    How do you correctly cite a case?

•    Unreported cases use a medium-neutral citation (see AGLC 2.8)
Before a case has been “reported” in a published set of reports, it can be found in AustLII.  These “unreported” or unedited copies of judgments have what is called a “medium-neutral citation”.

|name of parties| |[year]| |court| |judgment number/ court identifier| |(date of decision)| |[pinpoint]|

eg Telstra Corporation Ltd v Commonwealth [2008] HCA 7 (6 March 2008) [57]

•    Reported cases use either round or square brackets in their citation (see AGLC 2.2)

(a)    Round brackets (when reports series has unique volume numbers)
Indicates that the law report series uses volume numbers and the year indicates the year of judgment.

|name of parties| |(Year)| |volume no| |name of law report| |page case starts|

eg Cole v South Tweed Heads Rugby League Football Club Ltd  (2004) 217 CLR 469

A pinpoint reference is used where you are referring to a particular passage/ quote etc on a particular page and may be cited in the following way:

eg Cole v South Tweed Heads Rugby League Football Club Ltd  (2004) 217 CLR 469,  473.

(b)    Square brackets (when report series is organised by year)
Indicates that the law report series does not use volume numbers, or if it does, the volume numbers are always small eg 1-4 and the year indicates year of publication.

|name of parties| |[Year]| |name of law report| |page case starts|

eg Hoeper v Nelder [1932] SASR 173

EXERCISE 11 – Referencing cases

Rewrite the following case citations so that they follow the style as set out in AGLC3.

Smith v Western Australia [2014] HCA 3

William Neville Lane v Maxine Manuel [2012] NSWSC 8 (1 February 2012)

Heenan v Di Sisto and Ors (2008) NSWCA 25 (11 March 2008)
ROADS AND TRAFFIC AUTHORITY OF NSW v CHANDLER [2008] NSWCA 64 (11 April 2008)

Melbom v Regina [2011] NSWCCA 22 (28 February 2011)

Deakin v R [1984] HCA 31; (1984) 54 ALR 765; (1984) 11 A Crim R 88; (1984) 58 ALJR 367

O’Reilly v State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1; (1982) 44 ALR 27; (1983) 57 ALJR 130; (1982) 13 ATR 706; 82 ATC 4,671

Gulf Air Company GSC v Fattouh — (2008) 251 ALR 183; (2008) 230 FLR 311; [2008] NSWCA 225; BC200808650

2.    STATUTE LAW

A.    Reading legislation

EXERCISE 12 – Reading and identifying parts of a statute
Refer to the Australian Civilian Corps Act 2011 (Cth) (copy available on Moodle under Module 3, Course materials) and answer the questions below.

1.    What is the short title?
Australian Civilian Corps Act 2011
2.    What is the number?
No. 18
3.    How current is this version of the Act?
1 July 2014
4.    What is the long title?
An Act to provide for the establishment and management of the Australian Civilian Corps, and for other purposes

5.    Does the principal Act have a table of contents?
Yes. Every act has the table of content.
6.    Does it have a schedule or schedules?
No. Because the last content is regulations, and there’s no schedule after that.
7.    Does it have an interpretation or definition section? If so, which section?
Yes. Section 5.
8.    Does the interpretation section refer to the whole of the Act or only to part?
Yes.
9.    Does it have a purpose or objects section? If so, which section?
Yes. Section 3.
(a) to establish the Australian Civilian Corps; and
(b) to provide a legal framework for the effective and fair employment and management of Australian Civilian Corps employees.

10.    When did the principal Act come into force?
Look at section 2. Commencement.
11.    When was the Act most recently amended? By which Act? Which sections of the principal Act were affected by that Act?
Section 27 – no. 62 2014 was the most recently amended.
Endnotes 3.

12.    Delegated legislation.
(a)    Does the Act authorise regulations or other delegated legislation? Cite the section.
Yes, section 31

(b)    If so, who can make the regulations? Cite the section.
Governor general

(c)    State one subject about which regulations may be made.
Section 31 (a) and (b)

(d)    Have any regulations been made under the Act?  (You cannot find this out by looking at the hard copy – refer to Comlaw, under “Enables” tab.)

B.    Where can you find legislation online?

ComLaw: http://www.comlaw.gov.au
This is the official Commonwealth website for the publication of legislation.  Commonwealth legislation, delegated legislation, treaties, and legislation of non-self governing territories can be found here.

How to find Commonwealth delegated legislation: Open the Act.  The default is to “Current”.  Click on “View series” and “Enables”.  This will list any relevant rules or regulations, which you can access by clicking on the link.

NSW Legislation: http://www.legislation.nsw.gov.au
This is the official NSW government website for publication of legislation.

How to find NSW delegated legislation: Open the Act. Click on the “Regulations” link in the light blue banner, above the Act.  You can access the delegated legislation by clicking on the link.

Austlii: http://www.austlii.edu.au
This has links to legislation from all jurisdictions around Australia.  Note that these versions of the Acts are not authorised.

LawLex: http://research.lawlex.com.au/
Go to LawLex and follow the prompts to search or browse a subject index to legislation and delegated legislation. This covers all jurisdictions.

Treaties and related materials:
•    http://www1.umn.edu/humanrts/
•    AustLII treaty library

Don’t forget that hard copy versions of legislation are still kept in the law library.

EXERCISE 13 – Locating statutes
Note the database/s you use.

1.    Answer the following questions about the Paid Parental Leave Act 2010 (Cth).
(a)    What is the Act’s date of assent?
25 December 2010

(b)    When did the Act come into force?

(c)    How many amendments have there been to the Act? Provide details of the latest amendment.

(d)    Has any delegated/subordinate legislation been made under the principal Act?

(e)    Who introduced the Bill into Parliament?  On what date?
Ms MACKLIN – 12 may 2010

2.    Answer the following questions about the Do Not Call Register Act 2006 (Cth). Note the database/s that you use.
(a)    What is the number of the Act?
No. 88 2006

(b)    What is the date of assent?
30 June 2006

(c)    What is the long title of the Act?
An Act to establish a Do Not Call Register, and for other purposes

(d)    What is the date of the most recent compilation of the Act?

18 june 2015

(e)    Name the Regulations enabled under this Act.

(f)    When was the second reading speech made in each house of parliament?  Who delivered each speech?

3.     Answer the following questions about the Drug Court Act 1998 (NSW). Note the database/s you use.
(a)    Has any delegated legislation been made under the Act? If so, give details.

(b)    What was the name of the 1st 2006 amending Act? When did that amendment come into effect?

(c)    What is the most recent amendment made to the Act? When did that amendment come into effect?

Courts and Crimes Legislation Amendment Act 2015. Assented to 15.5.2015.
Date of commencement, assent, sec 2.

(d)    When was the second reading speech made in the Legislative Council?

(e)    What is the long title of the Act?

(f)    What is the short title of the Act?
Drug Court Act 1998.

4.    Answer the following questions about the Legal Profession Act 2004 (NSW). Note the database/s that you use.
(a)    When did the Act commence?

(b)    Can you find any articles referring to the Act? (Note – you may need to use a different database to find this information.)

(c)    Have any cases referred to the Act? Give the name of the most recent case. What section/s of the Act did it dealt with? (Note – you may need to use a different database to find this information.)

5.    Use LawLex to find the following information:
(a)    an Act dealing with the right of a person to access government information
?    from NSW

?    from Queensland

?    from the Commonwealth

?    from Victoria

(b)    an Act to help problem gamblers
?    from the Commonwealth

C.    How is legislation cited?

(a)    Acts  (see AGLC 3.1 ff)

|name of Act| |year| |(jurisdiction)|

eg Civil Liability Act 2002 (NSW)

Pinpoint references to a particular section:

eg Civil Liability Act 2002 (NSW) s 5B.

(b)    Delegated legislation – regulations, rules etc (see AGLC 3.3)

|name of Regulation/Rule| |year| |(jurisdiction)|

eg Aboriginal Communities (Justice and Land Matters) Regulation 1998 (Qld) reg 4(1).

(c)    Bills (see AGLC 3.5) – remember that Bills are not primary material – they are secondary, as they are drafts of legislation and will not become legislation until they receive assent.

|name of Bill| |year| |(jurisdiction)|

ie same method of citation as for Acts but name is not italicised:

eg Civil Liability (Offender Damages) Bill 2007 (NSW)

EXERCISE 14 – Referencing statutes

Rewrite the following statute (and bill) references so that they follow the style as set out in AGLC3.

Bail Act 2013 (NSW) sec 95 subs (2) para (f); Bail Regulation 2014 (NSW) regulation 9.

Bail Act 1980 (Queensland) section 16; Bail (Prescribed Programs) Regulation 2006 (QLD).

Work Health and Safety Regulation 2011 (New South Wales) regulation 16

Aged Care Act 1997 (Commonwealth) Part 3

Family Law Rules 2004 (CTH)

Relationships Register Bill 2010 (NEW SOUTH WALES)

Boarding Houses Bill 2012 (NSW) s 15

Crimes Act 1900 (NSW) s 18A

TOPIC 5 – LEGAL RESEARCH STRATEGIES

Background reading:
•    on Moodle, under Module 3, Readings for Legal Problem Solving.
•    Read the “Solving problems – using MIRAT” material at http://www.law.unsw.edu.au/surviving-thriving-law-school/settling/tips-tricks-new-law-students

Before you begin any legal research, it is important to plan a research strategy, which you will document, and modify if necessary, as you proceed.

There are many options when it comes to strategies for legal research.  The strategies discussed in the articles are some of the more common ones, and so provide a good starting point for developing your own approaches.

EXERCISE 15 – Research strategies

1.    Essay question
Is consent an element or a defence to an intentional tort?

(a)    Using Boolean searching, proximity searching and truncation techniques, construct three searches to help in locating material on the above topic.

(b)    Identify a minimum of three different types of resources that you would initially consult in order to research this topic.

(c)    Note further steps you might plan to take in order to ensure that you have the most up to date case law on this topic.

2.    Problem scenario
Your client, Janey, has been working at a fashion outlet as a salesperson for several years. Her boss, Pete, has another 6 employees, including his nephew, Mark. Recently, Mark has started to manage the store when Pete is away. Pete is intending to get out of the business and sell it to Mark. Mark frequently gives Janey a hard time. He criticises the way she speaks to customers and the way she arranges the stock. Janey thinks this is unfair because she has a good sales record. She is also very upset about this because Mark swears at her and sometimes threatens her with the sack once the business is his. He even does this in front of the other employees. Janey has tried to tell Pete about the problem, but he isn’t really interested. Last month, Mark called Janey into the office and shut the door. He said to Janey that if she was “nice” to him, perhaps they’d get on better in the future. Janey was horrified, has begun to take sick leave because of the stress she is under and generally tries to avoid Mark as much as possible. What’s more, Janey has recently found out that she is pregnant. She will need to ask for maternity leave from Mark before too long, as the sale of business plans are nearly finalised.

Devise an appropriate legal research strategy in order to be able to advise Janey.

1.    Identify relevant facts.  The following questions can help work out what the relevant facts are, but not all questions will apply to all problems.

(a)    Who was responsible? Who did this happen to?
Mark
Janey

(b)    Where did it happen?
Fashion outlet store

(c)    What happened?
Verbal abuse – criticism, swearing, threats of sacking
Sexual approaches/innuendo

(d)    When did it happen?
Work hours last month.

(e)    How did it happen?

(f)    Why did it happen?

2.    Identify relevant legal issues.  At the beginning stage, these can be general ideas which will be refined as you carry out legal research in step 3.
(a)    What legal area do you think applies?
Employment law – discrimination
Retail/small business
Unfair dismissal
Sexual harassment

(b)    What harm has been done?
Sexual harassment
Stress
Taking sick leave

(c)    What remedy is sought?
Discontinue her employment

3.    Identify rules relating to the legal issues.  [THIS IS THE STEP WHERE YOU CARRY OUT YOUR LEGAL RESEARCH – USING WHAT YOU HAVE LEARNT IN THIS COURSE.]

(a)    Where would you begin your legal research and why?

(b)    What search terms could be used? Note these down.  (Remember to consider Boolean/Proximity/Truncation techniques here.)

(c)    What is the best authority for the legal rule/s you want to apply?

4.    Apply the law to the facts
This involves applying legal reasoning by applying the law to the facts, setting out the issues, addressing the arguments and counter-arguments, then coming to a conclusion.

5.    Conclusion

[NOTE – YOU DO NOT NEED TO COMPLETE STEPS 4 AND 5 FOR THE PURPOSE OF THIS EXERCISE – IT IS JUST TO ILLUSTRATE THE STEPS YOU WOULD TAKE WHEN SOLVING AN ACTUAL LEGAL PROBLEM.]

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