"Girlfriends of the Court"

Australian Legal Footnotes: a quick and dirty guide

In Journals, law students, legal education, Procrastination on March 22, 2012 at 12:04 pm

Don't fall into plagiarism.

Have you ever wanted a quick and dirty guide to the main principles underlying the methods and motives for correct use of footnotes and citations in Australian law?

Legal citation has been referred to as a ‘peculiar human custom’.1 It allows a writer to refer to legal and non-legal authorities clearly and consistently, so as to support the arguments made, as well as to enable a reader locate the references. The purpose of providing references is to acknowledge sources of your writing, and demonstrate the breadth and depth of your research. We set out for you here* the shortest possible instructions on Australian legal footnotes style. 2

Proper referencing can help you to avoid accusations of plagiarism. Although there are many definitions of plagiarism, at its simplest it can be understood as ‘the act of representing someone’s words or ideas as being of one’s own’.3 The consequences of being caught can be severe 4 — ‘plagiarism is an academic crime punishable by academic death’! 5

Footnotes are used to indicate the source of an idea relied upon, to acknowledge the relevance of a source to an argument and, occasionally, to provide additional information that is not suitable to include in the main text.6  A footnote should always follow a paraphrase or a quotation. You should neither over nor under-utilise footnotes. Despite our increasingly complex world,7  it is not usually necessary to use a footnote for obvious statements. 8  Many law students will be surprised to find that their lecturers and tutors discourage the use of footnotes to avoid word-count limitations in written assignments. 9

In law, we generally use footnotes rather than bracket or in-text systems (such as the Harvard referencing style). The Australian Guide to Legal Citation (‘AGLC’) is used in many Australian law journals and universities, and it is the system employed in this piece.10 Other referencing systems are sometimes used in specific academic communities. Law students at Monash University, for example, are also able to use Fox and Campbell’s Students’ guide to legal writing, law exams and self assessment.11  Law journals and assignment instructions will specify a style guide. Where you are given a choice of referencing systems, choose just one and don’t mix them.

The law referencing system is best illustrated by the examples in the footnotes here. Primary sources such as cases,12 statutes,13 official reports 14 and other legal instruments 15 should be cited in support of statements of legal principle.16

Secondary sources such as books,17  journal articles,18  book chapters,19  encyclopaedic collections such as the Halsbury’s Laws of Australia,20  other texts such as conference papers 21 or speeches 22 that draw together and synthesise primary materials should be cited when the ideas or words of another author are used.

Now pay special attention to the correct citation of sources found on the internet. The AGLC says, ‘[a] source should only be cited [as internet material] if it does not exist in a published form’.23  That means you would cite web material if the source is exclusively available on the internet. You do not have to show that you have obtained a statute, case or journal article from the internet if it is accessible in another form. If you cite a source as internet material, you will have to provide details about the author, the document or page title, the website name (if different to the author), the uniform resource locater (‘URL’) and the date the page was last updated (if that date is provided).24  You can even cite tweets in your academic writing.25 However contractions of URLs (such as bit.ly or tiny.url) should not be relied upon.

Where legal citations are repeated, you do not repeat the full citation. ‘Above’ is used for a reference to an article or book cited earlier.26 Cases and legislation should be cited in full in all subsequent references.27  Replace Latin terms with their English equivalents if possible.28  This leaves ibid (short for ibidem, or ‘in the same place’) as one of the very few Latin phrases still in use.29  Ibid can only be used if there is no intervening reference. 30

Many other examples are not reviewed here. There may be some documents and sources for which it is difficult to find a rule, so you may improvise, being as clear and consistent as possible, and giving the reader access to as much information necessary to locate the material.

There are many books and guides on legal referencing and writing, and you should use them.31 There are small differences between them, on minor issues such as punctuation and format. However the most important goal for the legal writer is to become familiar with one system, and use it consistently.

BECKY BATAGOL and MELISSA CASTAN both teach law, and footnotes, at Monash University.
*An earlier version of this article appears in the Alternative Law Journal Vol 37 (1) 2012. It is preferable to cite that version.

NOTES
1. Patrick McFadden, ‘Fundamental Principles of American Law’ (1997) 85 California Law Review 1749, 1749.

2. It is not the shortest law article by any means, see Erik M. Jensen, “The Shortest Article in Law Review History“, 50 Journal of Legal Education 156 (2000).

3. Joe Mirarchi, ‘Plagiarism: What Is It? How to Avoid It? And Why?’ (2001) 4 TM Cooley Journal of Practical and Clinical Law 381, 383.

4. Tertiary students caught plagiarising have been subsequently denied admission as legal practitioners (or had their existing practising certificates cancelled) by State admission boards: See, eg, Legal Services Commissioner v Keough [2010] VCAT 108 (3 February 2010); Re Liveri [2006] QCA 152 (12 May 2006); Re: AJG [2004] QCA 88 (15 March 2004). Most infamously, the Vice-Chancellor of Monash University, David Robinson, resigned in 2002 after a series of plagiarism claims were raised against him: Misha Ketchell, ‘Plagiarism Accusations Grow’, The Age (Melbourne), 25 July 2002, 2.

5. Tommy Lee Jones playing Lt Roland Sharp, Man of the House (Directed by Stephen Herek, Sony Pictures, 2005).

6. Melbourne University Law Review Association (‘MULRA’), Australian Guide to Legal Citation (3rd ed, 2010) 1.

7. See McFadden, above n 1, 1754 (reporting that society is becoming increasingly complex).

8. The previous footnote was unnecessary. Its removal would permit the deletion of this footnote also.

9. Most law teachers would be unlikely to accept for assessment purposes an essay which, like one parody law review article, uses so many footnotes that the citations are almost five times longer than the main text: See Andrew McClurg, ‘The World’s Greatest Law Review Article’ (1995) 81(10) American Bar Association Journal 84.

10. MULRA, above n 5.

11. Enid Campbell, Richard Fox and Melissa DeZwart, Students’ guide to legal writing, law exams and self assessment (Federation Press, 3rd ed, 2010).

12. See, eg, Mabo v Queensland [No 2] (1992) 175 CLR 1.

13. See, eg, Native Title Act 1993 (Cth).

14. See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 16 December 1992, 3833 (Paul Keating, Prime Minister). These debates are colloquially known as ‘Hansard.’ See also Victoria, Victorian Bushfires Royal Commission, Final Report (2010) vol 1, 10.

15. See, eg, Convention on the Elimination of all Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) (‘CEDAW’).

16. Footnotes usually are placed after the section of text to which the footnote refers (after any relevant punctuation).

17. See, eg, Becky Batagol and Thea Brown, Bargaining in the Shadow of the Law: The Case of Family Mediation (Themis Press, 2011).

18. See, eg, Sarah Murray, ‘Keeping it in the Neighbourhood? Neighbourhood Courts in the Australian Context’ (2009) 35(1) Monash University Law Review 74.

19. See, eg, Melissa Castan, ‘Memory and Mabo’ in Michael Fagenblat, Melanie Landau and Nathan Wolski (eds), New Under the Sun: Jewish Australians on Religion, Politics and Culture (Black Inc, 2006) 325.

20. See, eg, LexisNexis, Halsbury’s Laws of Australia, vol 7 (at 28 February 2002) 5 Native Title, ‘What is Native Title?’ [5-5000].

21. See, eg, David Yarrow, ‘Extinguishment of Native Title’ (Paper presented at the Native Title Law Conference, Darwin, 25 May 2006) 27.

22. See, eg, Prime Minister Paul Keating, ‘Mabo — An Address to the Nation’ (Speech delivered in Canberra, 15 November 1993).

23. MULRA, above n 5, 116.

24. See, eg, Legal Services Commission, The State of Queensland, Lawyers, Law Students and Depression (2011) <http://www.lsc.qld.gov.au/headline-issues/lawyers,-law-students-and-depression>.

25. See, eg, Castan, Melissa (MsCastan) “How Do You Cite A Tweet in an Academic Paper” 22 March 2012, 11:20, a.m. Tweet. Further see Alexis Madrigal “How Do You Cite A Tweet in an Academic Paper” The Atlantic  (2 March 2012) <http://www.theatlantic.com/technology/archive/2012/03/how-do-you-cite-a-tweet-in-an-academic-paper/253932/>

26. MULRA, above n 5, 8-9.

27. See, eg, Native Title Act 1993 (Cth) 
s 21; Mabo v Queensland [No 2] (1992) 175 CLR 1.

28. Catriona Cook et al, Laying Down the Law (LexisNexis Butterworths, 8th ed, 2012) 483.

29. ibid 445.

30. ibid.

31. See, eg, Campbell, Fox and deZwart, above n 10; MULRA, above n 5; Monash University Library, Citing Legal References Monash University <http://www.lib.monash.edu.au/tutorials/citing/lawcit.html>.

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  1. Thank you for this guide. One’s capacity to use footnotes or endnotes in a document also depends up the particular computer software being used. Some software is more footnote-friendly than others. In less footnote-friendly software, the relevant reference often needs to be in brackets beside the relevant piece or item.

    Happily I am yet to encounter cravat-unfriendly software.

    • And whatever you do, PLEASE don’t use endnotes instead of footnotes on anything other than the shortest of papers. One of the most irritating and inefficient devices known to academic kind. I always assume anyone who uses endnotes is trying to hide their sources where no-one will bother to look. Bloody historians seem to have invented it. Main reason Soc Sci went to Harvard. Yes, I know. It makes life easy for paper publishers. Well, it did when printers were printers. SFA excuse for it these days that I can see.

  2. Now pay special attention to the correct citation of sources found on the internet. The AGLC says, ‘[a] source should only be cited [as internet material] if it does not exist in a published form’.23 That means you would cite web material if the source is exclusively available on the internet. You do not have to show that you have obtained a statute, case or journal article from the internet if it is accessible in another form.

    This seems to me to involve a dangerous piece of anachronistic thinking (quite apart from the bleedingly obvious AGLC error in ignoring that material on the internet IS in “published form”).

    Web based versions of material are often different from the printed equivalent, and the processes for locating material within them are not the same as for printed material (no page numbers in many cases, for example). Web based sources may also be updated more frequently than printed ones. Perhaps, at the time the guidelines were established, internet versions of material were seen as secondary to printed documents but this is no longer really so in most cases outside of the courts.

    Given the potentially ephemeral nature of “published” information when electronic versions are used, it seems to me any researcher or writer worth their salt should take the trouble to specifically identify the actual source they used, and, if electronic versions are used, the date & time when they did so.

    Let’s face it. Today, in 95% of situations in the first instance people are going to head to their computers when chasing a ref, not to the hard copy. If you don’t provide the net location YOU used then they’ll rely on Google or some such to give it to ’em, with potentially highly variable results.

    If you used a paper copy, cite the paper copy. If you used an internet version, and want to actually help the reader, rather than just comply with “guidelines”, I’d strongly suggest, as a social scientist who reads legal research rather than a lawyer, that you also provide details of the link & the time and date you accessed it unless you are very sure the paper version was a perfect mirror of it.

    • Thanks Rod, there IS a problem with the way the AGLC deals with sources published online as well as in print. But there is also a problem with people providing citations like this “Melissa Castan “The world of footnotes” soansojournal, December 2011 http://soansojournal.com/2012/roflmao/htlm./abcdefg/3%%%garblegarble/12345/a.cd/ etc etc. When publishing in a print journal or other resource with fixed page length, these type of footnotes can blow out the spacing and layout. And in print, they are of little use to the reader (because you dont cut and paste and drop into the search bar).
      So to reduce the duplication the AGLC asks for less data, but as you point out, thats not always useful for the online reader!
      But no one ever fails an law assignment because they add in a web reference! And Journals will edit out the unwanted parts.

      • The underlying Soc Sci principle is “cite what you read, not what someone else says you are reading”. I’d have thought this was even more important in law than Soc Sci.

        As far as print v electronic layout goes it seems pretty clear that the latter should really have priority now, even if it makes the print version a little uglier at times. They are overwhelmingly what people actually read these days.

        If AGLC want to reduce data for print cosmetic reasons, then they should do so on the basis of giving priority to the source actually used (wipe the net address if a hard copy was used, wipe the hard copy details if an electronic version was involved).

        But the fundamental principle of “citing the actual source you used” seems hard to beat to me when pursuing either academic or legal aims.

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