LAWS RW Week 3 Notes

Overview

• Week 3 of LAWS1000 Legal Research and Writing (School of Law, Fremantle) for Semester 2, 2025 focuses on advanced legal research skills. This week builds upon foundational knowledge by diving deeper into the methodology for locating and analyzing primary sources of law, specifically legislation and cases.

• A primary objective is to equip students with the practical ability to leverage legal databases for efficient and accurate research, understanding their capabilities and limitations.

Weekly Learning Outcomes

• Navigate the key legal databases: Students will develop proficiency in using leading legal research platforms such as Lexis+ and WestlawAU, understanding their interfaces, search functionalities, and content organization.

• Gain an introductory understanding of how to locate sources: This involves learning systematic methods to find specific statutes, regulations, and case law relevant to a legal problem.

• Gain an introductory understanding of various search tools: Students will explore and apply different search strategies, including keyword searches, Boolean operators, and specific field searches, to refine research results.

Preparation

• Students are required to attempt a detailed problem scenario provided below before class. This hands-on exercise is designed to apply theoretical knowledge to a practical legal situation.

• Answers to the problem scenario will be thoroughly reviewed and discussed in class to consolidate understanding and address common challenges, serving as a critical feedback session.

Readings

• Readings are drawn from specialised legal research texts, distinct from the core C&G3 prescribed edition. This ensures a dedicated focus on research methodologies.

• Principle notes: It is crucial to understand that legal databases undergo frequent updates and interface changes. While exact steps for navigation may evolve, the fundamental principles of effective legal research and source identification remain constant and are the core learning objective.

• How to find databases:

  • Navigate to the University Library webpage.

  • Select the ‘find’ menu option.

  • Choose ‘Library Databases’ from the dropdown.

  • Gain access to and familiarise yourself with essential legal databases, including Lexis+ (a comprehensive platform for cases, legislation, and commentary) and WestlawAU (another robust database offering similar primary and secondary sources).

• Alternative readings provided to widen access:

  • Bruce Bott and Ruth Talbot-Stokes, Effective Legal Research (LexisNexis, 8th ed, 2021), Chapter 6 ("Legislation") and Chapter 7 ("Case Law") (or equivalents in any newer edition). These chapters provide in-depth guidance on locating and interpreting statutory and judicial sources.

  • Creyke et al, Laying Down the Law (LexisNexis, 11th ed, 2020), chapters 18 ("Legislation") and 19 ("Case Law") (or equivalents). These sections offer foundational knowledge on the operation and hierarchy of legal sources.

• Note: Be mindful that the visual interface and functionalities of legal databases can change post-publication of these texts, necessitating adaptability during practical application.

• Helpful databases (for practice):

  • Federal Register of Legislation (Database): https://www.legislation.gov.au/ (The authoritative source for Commonwealth legislation, including Bills, Acts, and legislative instruments).

  • NSW Legislation (Database): https://legislation.nsw.gov.au/ (Official database for New South Wales legislation).

  • Western Australian Legislation (Database): https://www.legislation.wa.gov.au/ (Official database for Western Australian legislation).

  • Guide to Finding Cases using Databases: ‘Australian Cases’, University of Notre Dame Australia Library (Web Page, 9 January 2023): https://library.nd.edu.au/law/cases/australian (A valuable resource for understanding case finding strategies).

Problem Scenario

• a) Instructions

  • Carefully read through the FACTS detailed below, which present a complex legal situation requiring meticulous analysis.

  • Subsequently, attempt to answer the QUESTIONS, applying the legal research skills and knowledge acquired from the readings and class discussions.

• b) Facts

  • Aisha Gazila is an Australian citizen by naturalisation, having moved from Sudan as a refugee in 2006. She belongs to an ethnic minority group that faced persecution by the Sudanese government.

  • She fled Sudan in 2005 due to a severe civil war between the Government of Sudan and various rebel groups, which included members of her ethnic group.

  • Importantly, she had no involvement in any militia activity and was solely a civilian at the time of her departure.

  • Upon settling, she successfully became an Australian citizen.

  • On 31 January 2021, at a Woolworths store in Floreat, Western Australia, while at the delicatessen counter with her young son, Aayan, she encountered a familiar voice.

  • This unexpected encounter caused her to drop her basket, and she immediately identified the man as ‘the accused’, fleeing with her son out of fear.

  • She promptly contacted the Australian Federal Police (AFP) to report the accused’s presence in Floreat.

  • She identified the man as ‘Abdul Kareem’ and attributed significant scarring on her body (extending from her left eye area to her left hip) to him.

  • She claims these severe injuries were inflicted on 8 July 2003, when she was 18 years old.

  • Abdul Kareem was described as a young yet experienced member of the Sudanese military in Darfur, notorious for his exceptionally cruel treatment of the local population.

  • On the day of the attack, a large group of military personnel, including Kareem, was moving through her hometown; they specifically stopped and questioned young men, often employing excessive force.

  • Gazila bravely intervened when Kareem began harassing another young woman; while the other woman managed to escape due to Gazila’s intervention, Gazila herself was apprehended by Kareem.

  • He then subjected her to a brutal act, burning her with a hot knife, which resulted in the permanent injuries she bears.

  • The AFP conducted an investigation and believes Gazila’s account to be credible, concluding that the accused and Abdul Kareem are indeed the same person (though the accused now uses a different name and is referred to as Mr Kareem in the police documentation).

  • Following their investigation, the AFP formally referred the matter to the Commonwealth Department of Public Prosecutions (CDPP) for consideration of charges.

• c) Questions – Legislation

  • Note: You are permitted to use any legislation databases for this task, but specific suggested databases are provided for focused practice in using particular platforms.

  • TASK: Assume the role of a CDPP junior prosecutor. Your primary responsibility is to conduct a preliminary assessment to determine if there is sufficient legal basis to prosecute Mr Kareem.

  • a) USING LEXIS+

  • Conduct a targeted search to locate the specific piece of legislation that criminalises the offence of war crime – mutilation in Australia. This involves navigating Lexis+’s legislative content.

  • Identify all specific provisions within that legislation that define or relate to this crime, noting any subsections or associated definitions.

  • Important caveat: Do not conduct an open-ended search for the offence in all legislation. For the purpose of this exercise, assume the AFP has already charged Mr Kareem with a war crime – mutilation, specifically pursuant to s ext{ }268.71(2) of the Criminal Code (Cth). This key provision is located as a Schedule within the Criminal Code Act 1995 (Cth).

  • Bonus question: While multiple provisions might define ‘war crime – mutilation’ under international criminal law, why might s ext{ }268.71(2) be the most appropriate provision to apply in this specific case, considering the facts of the scenario? (No need for extensive research; rely on common-sense legal reasoning and the facts provided. Further hints can be gleaned from Britannica or online encyclopaedias if necessary to understand the nuances of war crimes against civilians).

  • b) What are the elements of the crime? Based on s ext{ }268.71(2), identify and articulate the specific factual and mental conditions (elements) that the prosecution must prove beyond a reasonable doubt to secure a conviction for this offence. This involves a careful textual analysis of the provision.

  • c) USING THE FEDERAL REGISTER: Utilise the Federal Register of Legislation (the official Commonwealth legislation repository) to determine by what specific legislative instrument (e.g., an amending Act) was s ext{ }268.71 last amended. Record the name and year of that instrument.

  • d) After determining when the specific provision was last amended:

  • Considering the principle of non-retroactivity in criminal law (nulla poena sine lege – no punishment without law), should you apply the law (specifically s ext{ }268.71(2) and (2A)) as it exited in 2003 (the year the alleged offence was committed) or apply the version of the law that is currently in force?

  • As a junior prosecutor, you are aware that an Explanatory Memorandum is a crucial piece of extrinsic material that can significantly aid in the interpretation of legislative provisions by detailing Parliament’s intent. You decide to download and save the Explanatory Memorandum for the Criminal Code Amendment (War Crimes) Bill 2016 (Cth) for future reference and detailed analysis.

  • e) Complete this quote from the Explanatory Memorandum of the Criminal Code Amendment (War Crimes) Bill 2016 (Cth), which is vital for understanding definitional aspects: ‘Membership’ ext{ }of ext{ }an ext{ }organised ext{ }armed ext{ }group ext{ }is ext{ }a ext{ }question ext{ }of ext{ }fact, ext{ }to ext{ }be ext{ }determined… This completion will likely pertain to the criteria or process for determining such membership.

  • The provision for war crime – mutilation often references the accused being ‘reckless’ with respect to certain circumstances or results.

  • f) What does reckless (or recklessness) mean in the context of the Code? Provide a concise legal definition of criminal recklessness as it is understood and applied within the framework of the Australian Criminal Code, specifically concerning criminal liability.

• d) Questions – Cases

  • Having decided, for the purpose of this exercise, to pursue the case against Mr Kareem, you now shift your research focus to relevant case law, primarily USING WESTLAW.

  • a) What is the most recent NSW case to cite the recklessness provision of the Code? Use Westlaw’s case search and citator functions to identify the most recent New South Wales Supreme Court or Court of Criminal Appeal decision that has considered or applied the concept of recklessness as defined in the Criminal Code (Cth) or analogous State provisions.

  • b) Which High Court of Australia (HCA) cases have involved extraterritorial application of Australian laws? Using Westlaw, identify leading HCA judgments that have addressed the principle of extraterritoriality, i.e., the power of Australian laws to apply to conduct occurring outside Australia’s geographical borders. This is critical given the facts of the scenario occurred in Sudan.

  • c) Locate Polyukovich v The Commonwealth (1991) 172 CLR 501. This is a landmark HCA case. Ensure you can readily access its full text or a summary. Hold on to it, as you will need to compare how it was treated or discussed in a later judgment. (Note: You are asked to look up Polyukovich and then compare how XYZ v The Commonwealth (2006) 227 CLR 532 addressed it, implying a hierarchical relationship or distinction).

  • GOING BACK TO LEXIS+

  • d) Which High Court of Australia (HCA) cases have involved extraterritorial application of Australian laws? Perform the same search as in question (b) but this time using Lexis+. This exercise highlights the consistency (or potential slight differences) in search results across major databases and reinforces the importance of using multiple platforms.

  • e) How has XYZ v The Commonwealth (2006) 227 CLR 532 treated Polyukovich v The Commonwealth (1991) 172 CLR 501? Analyse the subsequent HCA decision in XYZ v The Commonwealth to determine how it approached, distinguished, applied, or otherwise commented upon the precedent set in Polyukovich. This demonstrates understanding of judicial treatment of prior authority.

Links and Resources (contextual)

• Database access and updates to be mindful of:

  • Lexis+ and WestlawAU: These premier legal databases are regularly updated with new content and may undergo interface re-designs. Researchers must remain flexible and adaptable with navigation and search steps, as exact procedures can change.

• Useful primary sources mentioned in class:

  • Criminal Code Act 1995 (Cth) – particularly the specific Schedule entry containing s ext{ }268.71(2) and related provisions, as this is the foundational legislative basis for the problem scenario.

  • Explanatory Memoranda for major amendments (e.g., Criminal Code Amendment (War Crimes) Bill 2016), which provide invaluable insight into parliamentary intent and the legislative history of specific provisions.

  • NSW and WA legislation portals: These official government websites serve as reliable sources for comparative research, enabling analysis of similar offences or legal principles across different Australian jurisdictions.

Notes on how to approach the task in practice

• Recognise that research involves identifying where the offence is located within the legislation: This initial step often involves using common keywords or known provision numbers to pinpoint the precise statutory source regulating the alleged conduct. Ensure you cite the correct provision(s) with accuracy.

• Understand there may be multiple provisions defining equivalent offences: Australian law, especially for serious crimes, might have various interconnected or overlapping provisions. The assignment specifically asks you to justify why s ext{ }268.71(2), out of potentially other related sections, is the most appropriate provision given the unique facts presented in the scenario.

• When calculating amendment history, identify the instrument and date of amendment: Using official sources like the Federal Register of Legislation, accurately determine the specific legislative instrument (e.g., an amending Act) and the precise date of the last amendment to the relevant provision. This is crucial for applying the correct version of the law.

• The Explanatory Memorandum is an extrinsic material used to interpret legislation: It provides context, background, and the intended purpose of legislative changes. Always retain a copy for detailed later reference during statutory interpretation.

• Recklessness in the Code: Note that 'recklessness' is a criminal fault element used in the crime’s definition and is explicitly discussed in the Explanatory Memorandum. The exact legal meaning and application of 'recklessness' can sometimes depend on the specific provision and the body of relevant case law that has interpreted it.

• In case analysis, compare how authorities treat extraterritorial application of Australian laws: This involves identifying and analysing High Court decisions that deal with the applicability of Australian criminal law to conduct occurring outside Australia. This will require cross-database checks (e.g., comparing results for Polyukovich and XYZ) across Lexis+ and Westlaw to ensure comprehensive coverage and understanding of judicial precedent.

Key Terms and Citations (to remember for exam)

• War crime – mutilation: This specific offence is located in the Criminal Code Act 1995 (Cth), particularly as a Schedule entry within the Act; the most relevant provision for this scenario is s ext{ }268.71(2).

• The accused: Abdul Kareem (this is the alias officially used for the accused person within the specific facts of the case scenario).

• The relevant date for the alleged 2003 offense: 8 ext{ }July ext{ }2003, which is the precise date the traumatic incident occurred, crucial for determining the applicable law.

• Last amendment instrument: This will be identified precisely via research on the Federal Register of Legislation.

• XYZ v The Commonwealth (2006) 227 CLR 532; Polyukovich v The Commonwealth (1991) 172 CLR 501: These are pivotal High Court of Australia cases concerning the extraterritorial application of Australian laws, forming key precedents.

• NSW case with recklessness: The most recent New South Wales Supreme Court or Court of Criminal Appeal case that has cited or defined 'recklessness' under the Code (or an equivalent State provision), which will be identified using Westlaw’s citator.

Study tips

• Practice locating the exact statutory provision using Lexis+: Systematically search for and familiarise yourself with the structure and content of the Criminal Code Act 1995 (Cth) and its Schedules on Lexis+. Subsequently, compare how this specific provision is displayed and can be navigated on WestlawAU.

• Practice identifying all possible provisions that define the same or similar offence: Develop the skill to find potentially overlapping or analogous provisions and justify your selection of the most specific and appropriate one for a given factual scenario. This hones critical analysis.

• Review the process of examining amendment history and the role of Explanatory Memoranda in statutory interpretation: Understand the practical steps of using legislative registers to trace amendments and appreciate how Explanatory Memoranda can illuminate parliamentary intent, aiding in the correct interpretation of evolving laws.

• Build a small map of extraterritorial cases: Create a concise summary or diagram of the key High Court decisions that establish or refine the principles of extraterritorial application of Australian law, noting how they relate to and affect the applicability of Australian law to conduct occurring abroad.

URLs referenced in this unit for practice

• Federal Register of Legislation: https://www.legislation.gov.au/

• NSW Legislation: https://legislation.nsw.gov.au/

• Western Australian Legislation: https://www.legislation.wa.gov.au/

• Australian Cases (University of Notre Dame Australia Library): https://library.nd.edu.au/law/cases/australian