Accounting

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Assignment Questions 1 2.docx

Assignment Question – Term 1 of 2020

Question One

“In my view there was an identity of interest in the transaction, as between AXA and Macquarie Bank, which was not simply that of vendor and purchaser. Macquarie Bank had, in effect, undertaken to assist AXA to dispose of AXA Health in a way which would minimise AXA’s capital gains tax exposure. They were to have an ongoing relationship with respect to any short-term profit on resale. Their relationship was not at arms length. Their dealings reflected that fact.”

Required:

Critically discuss the decision of the court in Federal Commissioner of Taxation v AXA Asia Pacific Holdings Ltd [2010] FCAFC 134 by considering the above extract from the decision of Dowsett J.

Question Two

S 110-45(1B) of the ITAA 97 reads as follows: “Expenditure does not form part of the second or third element of the cost base to the extent that you have deducted or can deduct it.”

Required:

Critically discuss the practical application of the above provision, with specific reference to the meaning of the words “you have deducted or can deduct it”.

The End

Federal Commissioner of Taxation v AXA Asia Pacific Holdings Ltd.pdf

FEDERAL COURT OF AUSTRALIA

Federal Commissioner of Taxation v AXA Asia Pacific Holdings Ltd

[2010] FCAFC 134

Dowsett, Edmonds and Gordon JJ

17-19 May, 18 November 2010 – Melbourne

Capital gains tax — Scrip-for-scrip roll-over relief under — Whether the parties to the transaction dealt with each other “at arms length” — Pt IVA of the Income Tax Assessment Act 1936 (Cth) — Whether the respondent obtained a “tax benefit” in connection with the scheme — Identification of the alternative postulate — Income Tax Assessment Act 1997 (Cth), Subdiv 124-M — Income Tax Assessment Act 1936 (Cth), Pt IVA.

Under a leveraged buy-out arrangement organised by Macquarie Bank Ltd, the taxpayer’s subsidiary was first sold for $550,000,000 to a company (MB Health) that was incorporated as a non-wholly-owned subsidiary of Macquarie Bank (and in which Macquarie Bank and other related entities held interests). Under the arrangement, Macquarie Bank would then on-sell the subsidiary to a third party and the taxpayer would share in the profits from the sale. The proceeds for the sale to MB Health comprised $50,000,000 in cash and replacement shares in MB Health. These replacement shares did not amount to a “significant stake” which thereby allowed the taxpayer to unilaterally choose the scrip-for-scrip roll-over in Subdiv 124-M of the Income Tax Assessment Act 1997 (Cth) (the ITAA 1997) to defer the gain made on the sale.

Macquarie Bank would be paid a fee of several million dollars for arranging the sale in this way. Related underwriting agreements and various options were also executed to provide for the payment of the fee, and to protect the interests of the parties. At the same time, the taxpayer was considering selling the subsidiary directly to an interested third party (Medical Benefits Fund of Australia Ltd (MBF)).

The Commissioner argued that the taxpayer and Macquarie Bank (on behalf of MB Health) had “colluded” to structure the transaction in a way that would attract the scrip-for-scrip roll-over and, as a result, the parties could not be said to be dealing with each other at “arms length” for the purpose of qualifying for the roll-over (in terms of the requirements of s 124-780(4) of the ITAA 1997). The Commissioner also argued that Pt IVA of the Income Tax Assessment Act 1936 (Cth) (the ITAA 1936) applied to the scheme (which was broadly defined as all the steps from the incorporation of MB Health to the choice of the roll-over). The Commissioner claimed that in the absence of the scheme, the taxpayer would have made a direct sale of the subsidiary to another related Macquarie Bank company, and for which roll-over could not have applied.

At first instance, in AXA Asia Pacific Holdings Ltd v FCT (2009) 77 ATR 829, the Federal Court held that the taxpayer and Macquarie Bank (on behalf of MB Health) had satisfied the arms length conditions for the roll-over as it considered there was no evidence either of collusion or the submission of one party’s will to the other. The court also found that Pt IVA of the ITAA 1936 did not apply as no tax benefit arose under the scheme as it could not be

180 FEDERAL COURT OF AUSTRALIA [(2010)

reasonable to expect that if the subsidiary had not been sold in this way to MB Health, it would have been sold directly to the other related Macquarie Bank company as Macquarie Bank would not have derived its fees under this sale.

On appeal, the Commissioner claimed that the court at first instance erred in its conclusion that the taxpayer and Macquarie Bank dealt with each other at arms length. In particular, the Commissioner submitted that the fact that a transaction was devised by Macquarie Bank for a fee to obtain a revenue advantage for the taxpayer meant that the parties were not dealing with each other at arms length for the purposes of s 124-780(4) of the ITAA 1997. In regard to Pt IVA of the ITAA 1936, the Commissioner claimed that the court at first instance erred in finding there was no tax benefit. The Commissioner relied on the alternative postulate that if the taxpayer had not entered into the scheme, it would have been expected to have disposed of its subsidiary directly to another related Macquarie Bank company and that the court at first instance erred in rejecting this alternative postulate merely on the basis that Macquarie Bank would not have agreed to such a transaction because it would have deprived it of its fees.

Held, dismissing the appeal:

Non-arms length dealing

(Per Edmonds and Gordon JJ):

(1) Although the structure through which the acquisition would be achieved contained features attractive to the taxpayer (including the roll-over), this did not make the transaction a non-arms length transaction. This was essentially because the taxpayer was motivated to sell its business and Macquarie Bank was motivated to acquire it in order to on-sell it.

(2) The fact that a purchaser of an asset seeks to obtain, for its own benefit, a collateral advantage from the purchase transaction (in this case, the earning of fees) over and above the acquisition of the asset, cannot of itself lead to a conclusion that the parties to the transaction were not dealing with each other at arms length.

(3) In addition, there was no evidence that the purchase price did not represent the market value of the asset. The fact that the vendor (the taxpayer) had the right to participate in any profit arising to the purchaser (Macquarie Bank) from the onward sale of the asset did not indicate otherwise. To the contrary, this reflected the bargaining power which the vendor (the taxpayer), brought to bear on the overall architecture of the transaction.

(Per Dowsett J in dissent):

(4) There was an “identity of interest” in the transaction, as between the taxpayer and Macquarie Bank, which was not simply that of vendor and purchaser as the transaction was designed to enable Macquarie Bank to obtain fees for their services, and not to just acquire an asset (that is, MB Health).

(5) In the context of this ongoing relationship (which included an interest in any profit on the re-sale of MB Health) their relationship was not at arms length and that their dealings reflected this fact.

Part IVA of the Income Tax Assessment Act 1936 (Cth)

(6) The onus is on the taxpayer to establish that a tax benefit was not obtained in connection with the scheme, that is, the taxpayer must show that the amount would not have been included, or might not reasonably be expected to have been included, in its assessable income if the scheme had not been entered into or carried out.

(7) An objective inquiry is required as to what would have been included or might reasonably be expected to have been included in the assessable income had the “scheme” not been entered into or carried out. This requires a comparison between the “scheme” and an alternative postulate, or counterfactual. The alternative postulate requires a prediction as to events which would have taken place if the scheme had not been entered into or carried out. That prediction must be sufficiently reliable for it to be regarded as reasonable and must be more than a possibility.

(8) The events that would have, or might reasonably be expected to have, taken place in the absence of the scheme and which are identified as a result of the objective inquiry are not confined or defined by the scheme itself.

18181 ATR 180] FCT v AXA ASIA PACIFIC HOLDINGS LTD

(9) In the end, the court will decide what would have been done, or might reasonably be expected to have been done, in lieu of the scheme having regard to all of the evidence that is led.

(10) The objective facts before the court at first instance were that the related underwriting agreement and options would not have been entered into had the scheme not been carried out and, therefore, the fees payable to Macquarie Bank under those agreements would have been lost. These objective facts were accepted by court at first instance and thereby discharged the taxpayer’s onus of proving that the Commissioner’s alternative postulate “was not sufficiently reliable for it to be regarded as reasonable.”

(11) The Commissioner’s submission that it was a “given” that a direct sale of the taxpayer’s subsidiary would have taken place absent the scheme is contrary to the evidence and ignores the significance of the fees that were imposed under the related underwriting agreement. In short, the evidence demonstrated that a direct sale would not have (or would not reasonably be expected to have) occurred because it would have, inter alia, denied Macquarie Bank its fees.

(12) The Commissioner’s submission that the court at first instance erred in failing to consider the “putative purpose” of the scheme was without foundation as there was no factual finding that the “putative purpose” of the scheme was to attract the benefit of the scrip-for-scrip roll-over. In addition, looking to the “putative purpose” of the scheme is not contemplated by s 177C(1)(a) of the ITAA 1936 and is contrary to the notion that the inquiry be one based on objective fact.

Cases Cited

ACI Operations Pty Ltd v Berri Ltd (2005) 15 VR 312.

Australian Trade Commission v WA Meat Exports Pty Ltd (1987) 7 AAR 248; 75 ALR 287.

AW Furse No 5 Will Trust, Trustee for Estate of v FCT (1990) 21 ATR 1123; 91 ATC 4007.

Barnsdall v FCT (1988) 19 ATR 1352; 88 ATC 4565; 81 ALR 173.

Baxter v FCT (2002) 51 ATR 209; 2002 ATC 4917; 196 ALR 519.

Collis v FCT (1996) 33 ATR 438; 96 ATC 4831.

Epov v FCT (2007) 65 ATR 399; 2007 ATC 4092.

FCT v Dalco (1990) 168 CLR 614; 20 ATR 1370; 64 ALJR 166; 90 ATC 4088; 90 ALR 341.

FCT v Hart (2004) 217 CLR 216; 55 ATR 712; 78 ALJR 875; 2004 ATC 4599; 206 ALR 207.

FCT v Lenzo (2008) 167 FCR 255; 71 ATR 511; 2008 ATC 20-014; 247 ALR 242.

FCT v Mochkin (2003) 127 FCR 185; 52 ATR 198; 2003 ATC 4272.

FCT v Peabody (1994) 181 CLR 359; 28 ATR 344; 68 ALJR 680; 94 ATC 4663; 123 ALR 451.

FCT v Spotless Services Ltd (1996) 186 CLR 404; 34 ATR 183; 71 ALJR 81; 96 ATC 5201; 141 ALR 92.

FCT v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410; 79 ATR 780; 2010 ATC 20-198; 272 ALR 40.

Gauci v FCT (1975) 135 CLR 81; 5 ATR 672; 50 ALJR 358; 34 LGRA 321; 75 ATC 4257; 8 ALR 155.

Granby Pty Ltd v FCT (1995) 30 ATR 400; 95 ATC 4240; 129 ALR 503.

McAndrew v FCT (1956) 98 CLR 263; [1956] ALR 1008.

182 FEDERAL COURT OF AUSTRALIA [(2010)

McCormack v FCT (1979) 143 CLR 284; 9 ATR 610; 53 ALJR 436; 79 ATC 4111; 23 ALR 583.

McCutcheon v FCT (2008) 168 FCR 149; 69 ATR 607; 2008 ATC 20-009.

RAL v FCT (2002) 50 ATR 1076; 2002 ATC 109.

Spencer v Commonwealth (1907) 5 CLR 418 at 427; 14 ALR 253.

WD & HO Wills (Aust) Pty Ltd v FCT (1996) 65 FCR 298; 32 ATR 168; 96 ATC 4223.

Appeal

This was an appeal by the Commissioner to the full Federal Court from a decision of the Federal Court at first instance in which the court dismissed the Commissioner’s appeal.

M Moshinsky SC and D Mandie, for the appellant.

G J Davies QC and A T Broadfoot, for the respondent.

Cur adv vult

18 November 2010

Dowsett J.

Introduction

I have read the reasons prepared by Edmonds and Gordon JJ and agree that, to the extent that the appellant (the Commissioner) relies upon Pt IVA of the Income Tax Assessment Act 1936 (Cth) (the ITAA 1936) the appeal should fail. My reasons for that view are substantially the same as those given by their Honours. However I conclude that the Commissioner should succeed on the “roll-over” point in connection with Subdiv 124-M of the Income Tax Assessment Act 1997 (Cth) (the ITAA 1997). I do not propose to rehearse in detail the facts of the case. They appear from the judgment at first instance (AXA Asia Pacific Holdings Ltd v FCT (2009) 77 ATR 829; 2009 ATC 20-151) and from their Honours’ reasons.

I shall refer to the parties and other entities identified in the primary judge’s reasons as follows:

the appellant: the “Commissioner”;

the respondent: “AXA;”

Medical Benefits Fund of Australia Ltd: “MBF”;

AXA Australian Health Insurance Pty Ltd: “AXA Health”;

Macquarie Bank Ltd

(other than Macquarie Advisory, but including Macquarie PTG):

“Macquarie Bank”;

Macquarie’s advisory arm: “Macquarie advisory”;

Macquarie’s Principal Transactions Group: “Macquarie PTG”;

British United Provident Insurance Ltd: “BUPA”;

Macquarie Health Acquisitions Pty Ltd: “Macquarie Health Acquisitions”;

Macquarie Health Holdings Pty Ltd: “Macquarie Health Holdings”;

Macquarie Health Funding Pty Ltd: “Macquarie Health Funding”;

BUPA Australia Pty Ltd: “BUPA Australia”;

MB Health Holdings Pty Ltd “MB Health Holdings”.

18381 ATR 180] FCT v AXA ASIA PACIFIC HOLDINGS LTD (Dowsett J)

The separate identification of Macquarie Bank, Macquarie advisory and Macquarie PTG is necessary at some stages in the consideration of this case. However, as I understand it, the only relevant legal entity is Macquarie Bank Ltd of which Macquarie advisory and Macquarie PTG are parts. The need for separate identification arises out of the different functions performed for AXA by Macquarie advisory and Macquarie PTG, leading to the erection of a “Chinese Wall” to separate the involvement of Macquarie advisory and Macquarie PTG. Of course, that process, laudable as it may have been, did not change the fact that Macquarie Bank was involved in both capacities. As will be seen, the Chinese Wall was erected after significant information had already been given to Macquarie PTG and after the general structure of the relevant transaction had emerged. As the question is whether Macquarie Health Acquisitions (or Macquarie Health Funding) dealt with AXA at arms length in the transaction for the sale of AXA Health, the effect of the Chinese Wall may be of some importance. It is common ground that Macquarie Bank’s conduct in connection with the transaction is to be attributed to Macquarie Health Acquisitions (and Macquarie Health Funding).

The relevant provisions

The ITAA 1997 provides for relief from capital gains tax where a capital gain is made as a result of the exchange of shares in the capital of one corporation for shares in the capital of another. The purpose of this relief is to facilitate takeovers. The present case concerns a transaction by which AXA transferred all of the shares in AXA Health to Macquarie Health Funding pursuant to an agreement with Macquarie Health Acquisitions which held all of the issued shares in Macquarie Health Funding. The transaction was much more complicated than is suggested by that short description and involved other parties, directly and indirectly. However it was the disposition by AXA of the shares in AXA Health which generated the relevant capital gain. It is common ground that AXA will be entitled to roll-over relief if it is able to satisfy the requirements of s 124-780(4) and (5) which provides:

(4) The conditions specified in subsection (5) must be satisfied if the original interest holder and an acquiring entity did not deal with each other at arms length and:

(a) neither the original entity nor the replacement entity had at least 300 members just before the arrangement started; or

(b) the original interest holder, the original entity and an acquiring entity were all members o f the same linked group just before that time.

Note There are some cases where a company will not be regarded as having 300 members: see section 124-810.

(5) The conditions are:

(a) the market value of the original interest holder’s capital proceeds for the exchange is at least substantially the same as the market value of its original interest; and

(b) its replacement interest carries the same kind of rights and obligations as those attached to its original interest.

…

(7) A company is the ultimate holding company of a wholly-owned group if it is not a 100% subsidiary of another company in the group.

The term “arms length” is defined in s 995-1 of the ITAA 1997 as follows:

… in determining whether parties deal at arms length, consider any connection between them and any other relevant circumstance.

Definitions

The present appeal focuses upon the meaning of the expression “did not deal with each other at arms length” where it appears in s 124-780(4) and its application to the

184 FEDERAL COURT OF AUSTRALIA [(2010)

facts of this case. The learned primary Judge referred to a number of cases in which similar expressions have been considered. In particular his Honour referred to definitions identified by the full court in Australian Trade Commission v WA Meat Exports Pty Ltd (1987) 7 AAR 248 at 252; 75 ALR 287 at 291 as follows:

The first matter to be determined is the meaning of the phrase “not at arms length” where used in s 4(8) of the Export Market Development Grants Act 1974 (Cth). It is, of course, often found in revenue statutes …. The ordinary meaning of the phrase is explained in Osborn’s Concise Law Dictionary, 6th ed at 32: “The relationship which exists between parties who are strangers to each other, and who bear no special duty, obligation, or relation to each other, for example, vendor and purchaser. …”

A similar explanation is given by Black’s Law Dictionary, 5th ed at 100: “arms length transaction. Said of a transaction negotiated by unrelated parties, each acting in his or her own self interest; the basis for a fair market value determination. Commonly applied in areas of taxation when there are dealings between related corporations, for example, parent and subsidiary. … The standard under which unrelated parties, each acting in his or her own best interest, would carry out a particular transaction. For example, if a corporation sells property to its sole shareholder for $10,000, in testing whether $10,000 is an ‘arms length’ price it must be ascertained for how much the corporation could have sold the property to a disinterested third party in a bargained transaction.”

I add 2 more general definitions. The Oxford English Dictionary, 2nd ed (1989) states:

… at arms length: as far out or away from one as one can reach with the arm; hence, away from close contact or familiarity, at a distance; spec. in Law, without fiduciary relations, as those of trustee or solicitor to a client; (at) arms length: …, designating a sale or transaction in which neither party controls the other.

The Collins Australian Dictionary, 7th ed (2005) defines the term as meaning:

… at a distance; away from familiarity with or subjection to another.

The cases

I should briefly examine the cases. The first in time is the decision of the full court (Beaumont, Wilcox and Burchett JJ) in WA Meat Exports. That case concerned a “grant entitlement” in respect of eligible expenditure. Eligible expenditure was expenditure which, in the opinion of the relevant decision-maker, had been incurred by a person primarily and principally for the purpose of expanding the export of goods produced, assembled or processed in Australia. Excluded from the definition of expenditure was any amount paid to a person by a prescribed associate. The term “prescribed associate” was defined to include “any person determined by the [decision-maker] to be a person not at arms length with the claimant. …” In that case the claimant company had retained the services of a former employee, such services being provided by him as an employee of another company which he owned. After the references to Osborne and Black referred to above, the court observed (at AAR 252; ALR 291):

There is no reason to suppose that the ordinary meaning of the phrase was not intended to be applied here. That is to say, the context of s 4 is consistent with the disqualification of expenditure by one party in favour of another where one of them has the ability to exert personal influence or control over the other. It is evident that the policy of the legislation would seek to exclude payments to such persons, because, if such payments were not excluded, abuse of the incentive scheme provided by the Act would be open. An obvious example is the possibility that parties might seek to inflate the fees payable for particular services.

In Re Hains; Barnsdall v FCT (1988) 19 ATR 1352; 88 ATC 4565; 81 ALR 173, Davies J considered a provision which provided that:

18581 ATR 180] FCT v AXA ASIA PACIFIC HOLDINGS LTD (Dowsett J)

• where a taxpayer had sold property within 12 months of its purchase;

• there was no consideration, or inadequate or excessive consideration for the sale; and

• the Commissioner was satisfied that having regard to any connection between the taxpayer and the purchaser or any other relevant circumstances, the taxpayer and the other person were not dealing with each other at arms length;

then certain tax consequences followed. His Honour considered that the expression “not dealing with each other at arms length” differed from the expression “not at arms length” used in WA Meat Exports. Davies J observed that (at ATR 1355; ATC 4568; ALR 176):

That term should not be read as if the words “dealing with” were not present. The Commissioner is required to be satisfied not merely of a connection between a taxpayer and the person to whom the taxpayer transferred, but also of the fact that they were not dealing with each other at arms length. A finding as to a connection between the parties is simply a step in the course of reasoning and will not be determinative unless it leads to the ultimate conclusion.

The taxpayer had sold shares to a company which he owned. After examining a number of cases his Honour observed (at ATR 1356; ATC 4568; ALR 177):

It will be seen that those cases looked primarily to the relationship between the contracting parties and to influence and control.

I do not disagree with this analysis, but I accept … [the] submission that there may be transactions between related parties in which the parties deal with each other at arms length. This may occur notwithstanding a close relationship between the parties or the power of one party to control the other.

In that case the taxpayer submitted that the Commissioner, in reaching his decision, had considered only the relationship between the parties and not the nature of the transaction, or the circumstances in which the parties had dealt with each other. Davies J rejected this criticism, observing that there was other material bearing upon the question, including evidence that the shares were not sold on the open market, but rather transferred pursuant to a private transaction “of a somewhat unusual character.” The “unusual” nature of the transaction was that the taxpayer had acquired rights to the allotment of shares in a public company and granted to his company options to acquire such shares when they were allotted. The price payable was such that the taxpayer’s costs and receipts matched. On this material his Honour considered that the conclusion was inevitable that the parties had not dealt at arms length, observing (at ATR 1357; ATC 4569; ALR 178) that:

Proof that a transaction was fair is not sufficient to show, in the context, that the dealing was at arms length. The term “at arms length” in s 26AAA(4)(b) is not to be construed as meaning “for a fair price.” Indeed, this provision did not turn its attention primarily to price, but the price paid may be a relevant factor. The provision did not purport to fix a fair price for the transaction but rather, when a finding had been made that the dealing was not at arms length, fixed and [sic] arbitrary consideration, the value of the property at the time of its sale.

The subject transaction was one between [the taxpayer] and his private company. It was a private transaction with a company which he controlled and which was his investment and share dealing arm. Such a transaction is not an arms length dealing for the purposes of s 26AAA(4).

Trustee for Estate of AW Furse No 5 Will Trust v FCT (1990) 21 ATR 1123; 91 ATC 4007 concerned a provision in the ITAA 1936 dealing with assessable income:

… derived by a trustee, directly or indirectly, under or as a result of an agreement … any 2 or more of the parties to which were not dealing with each other at arms length in relation to

186 FEDERAL COURT OF AUSTRALIA [(2010)

the agreement and the amount of the assessable income so derived is greater than the amount … of the assessable income that, in the opinion of the Commissioner, would have been derived by the trustee, directly or indirectly, under or as a result of that agreement if the parties to the agreement had dealt with each other at arms length in relation to the agreement. …

Hill J said (at ATR 1132; ATC 4014-4015):

The first of the 2 issues is not to be decided solely by asking whether the parties to the relevant agreement were at arms length to each other. The emphasis in this subsection is rather upon whether those parties, in relation to the agreement, dealt with each other at arms length. The fact that the parties are themselves not at arms length does not mean that they may not, in respect of a particular dealing, deal with each other at arms length. This is not to say that the relationship between the parties is irrelevant to the issue to be determined under the subsection.

His Honour then referred to the decision of Davies J in Hains and continued:

What is required in determining whether parties dealt with each other in respect of the particular dealing at arms length is an assessment whether in respect of that dealing they dealt with each other as arms length parties would normally do, so that the outcome of their dealing is a matter of real bargaining.

Both Hains and Furse highlight the need to examine the course of the dealings between the parties in order to determine whether they have dealt with each other at arms length.

Granby Pty Ltd v FCT (1995) 30 ATR 400; 95 ATC 4240; 129 ALR 503 concerned the calculation of a cost base for capital gains tax purposes. Section 160ZH(9)(c) provided that in determining such cost base, certain consequences would follow if the consideration paid by the taxpayer was less than the market value of the asset at the time of the acquisition, and the taxpayer and the person from whom it had acquired the asset were not dealing with each other at arms length in connection with the acquisition. Lee J said (at ATR 403; ATC 4243; ALR 506):

The expression “dealing with each other at arms length” involves an analysis of the manner in which the parties to a transaction conducted themselves in forming that transaction. What is asked is whether the parties behaved in the manner in which parties at arms length would be expected to behave in conducting their affairs. Of course, it is relevant to that inquiry to determine the nature of the relationship between the parties, for if the parties are not parties at arms length the inference may be drawn that they did not deal with each other at arms length.

Again the relevant considerations were the relationship between the parties and the extent to which their conduct of the transaction was consistent with that which one would expect in negotiation between parties at arms length. His Honour then observed (at ATR 403-404; ATC 4243-4244; ALR 506-507) that whatever else the expression might mean, it at least meant that the parties to a transaction had acted “severally and independently in forming their bargain.” His Honour continued:

That is not to say, however, that parties at arms length will be dealing with each at arms length in a transaction in which they collude to achieve a particular result, or in which one of the parties submits the exercise of its will to the dictation of the other, perhaps, to promote the interests of the other.

His Honour was there identifying circumstances in which parties, otherwise at arms length, nonetheless might be found to have dealt with each other, other than at arms length. His Honour was certainly not saying that, in general, it is necessary that the parties collude in order that they be found not to have dealt with each other at arms

18781 ATR 180] FCT v AXA ASIA PACIFIC HOLDINGS LTD (Dowsett J)

length. Nor was he necessarily seeking to describe exhaustively the circumstances in which parties, otherwise at arms length, would be said to have dealt other than at arms length. His Honour then observed that:

… there was no evidence that the lessor corporations and the partnership acted in concert with an ulterior purpose, or that the lessor corporations accepted dictation or instruction from the partnership to the exclusion of the exercise of the independent minds of the corporations. …

The words “ulterior purpose” seem to mean a purpose “beyond what is immediate or present” or “beyond what is openly stated or evident; intentionally concealed or kept in the background”: New Shorter Oxford English Dictionary (1993).

Collis v FCT (1996) 33 ATR 438; 96 ATC 4831, concerned the profit arising from the sale of land and the effect for tax purposes of s 26AAA of the ITAA 1936. 4 parcels of land had been offered for sale at auction. A factory was built on 3 of the parcels. The 4th parcel was used for access to the factory. The taxpayers owned all 4 parcels, the 4th block having only recently been acquired. The company occupying and operating the factory was also owned by them. The 4 parcels were sold together by auction. After the fall of the hammer the taxpayers asked the purchaser to sign 2 contracts for purchase, one over the 4th block for $200,000, and the other over the other 3 blocks for $1,437,000. Section 26AAA provided that certain tax consequences would flow if the Commissioner was satisfied that, having regard to any connection between the taxpayer and the purchaser, or any other relevant circumstances, the parties had not dealt with each other at arms length. The question was whether or not the arrangements which occurred after the fall of the hammer constituted a dealing not at arms length. Jenkinson J said (at ATR 442; ATC 4836-4837):

There is nothing in the material before the tribunal to suggest, nor was it submitted, that [the purchaser] and the applicants were not dealing with each other at arms length at and before the fall of the hammer. The fact that the oral contract was unenforceable – and remained unenforceable until [the purchaser] became the registered proprietor of the subject land - would not affect the operation of s 26AAA(2). Presumably the parties have taken the view that the making of the subsequent written contract for the sale of the subject land and the written contract for the sale of the factory land had the result that the oral contract was thereupon rescinded, no doubt pursuant to an implied term of each of the written contracts that that should be so. The oral contract being rescinded, the subject land could not perhaps be said to have been sold “in pursuance of” that contract. …

The form of contract for purchase of the whole of the land offered at the auction was before the tribunal. … On the evidence before the tribunal [the purchaser] could be expected to be indifferent as to whether he made the 2 contracts proposed or the one contract which the applicants had represented that they were willing to make with the successful bidder at the auction, provided that he was satisfied that the former course would not expose him to any disadvantage or risk of disadvantage not attendant on the latter course. The evidence before the tribunal strongly suggested that he was so satisfied, and the tribunal appears to have found that he was. If he was, the inference – which it is for the tribunal, not for the court, to draw – seems irresistible that [the purchaser] did not deal with the applicants at arms length.

His Honour then referred to the observations of Lee J in Granby and continued:

I respectfully agree. The inference must surely be drawn that [the purchaser], being indifferent, submitted the exercise of his will to the applicants’ wishes in acceding to their request.

As in the earlier cases, Jenkinson J focussed upon the way in which the parties dealt with each other. The purchaser had bid for all 4 blocks as one parcel but agreed to sign

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2 contracts although it yielded no further benefit to him. Clearly, his agreement was for no purpose other than to oblige the vendors. In these circumstances, the parties could be seen to be other than at arms length. On the other hand, if a potential purchaser were to include a particular term in its offer to a potential vendor, in the expectation that the latter would find it attractive, thus inducing it to sell to the purchaser, the position may be otherwise. The purchaser will have made the offer in order to advance its own interests.

ACI Operations Pty Ltd v Berri Ltd (2005) 15 VR 312 concerned the construction of the term “bona fide arms length” offer in a contract for the supply of packaging. Dodds-Streeton J said (at 334-335 [223]-[226]):

[223] The above authorities indicate that an arms length relationship is that of strangers, or parties who are unaffected by existing mutual duties, liabilities, obligations, cross-ownership of assets, or identity of interests which might: (a) enable either party to influence or control the other; or (b) induce either party to serve that common interest in such a way as to modify the terms on which strangers would deal.

[224] The concept of an arms length relationship is distinct from that of an arms length dealing or transaction, despite the potential overlap. Unrelated parties may collude or otherwise deal with each other in an interested way, so that neither the dealing nor the resultant transaction may properly be considered arms length.

[225] Where the parties are not in an arms length relationship, it is recognised that the inference may be drawn that they did not deal with each other at arms length. It may further be inferred that the resultant transaction is not arms length.

[226] Related parties may nevertheless, in some circumstances, demonstrate a dealing which displaces the inference based on their relationship. They may engage in the disinterested bargaining characteristic of strangers, applying independent separate wills. The circumstances of the impugned transaction may be such that, despite the parties’ connection or common interest, the interposition of some independent process (such as the sale of shares on the stock exchange) ensures that the transaction itself is arms length, in the sense that it could equally have been concluded by unrelated parties, consulting their own self-interest and uninfluenced by any particular association or interest in common.

The learned primary judge also referred to the decision of Gyles J in Baxter v FCT (2002) 51 ATR 209; 2002 ATC 4917; 196 ALR 519, identifying the proposition that the fact that a transaction is devised in a certain way so as to obtain a revenue advantage does not mean that the transaction is not at arms length. I accept that the offer and acceptance of a proposal which has a tax-related attraction for the offeree may not necessarily lead to the conclusion that the transaction is not at arms length. For reasons which I have given, the offer may well have been motivated by the offeror’s self-interest. However, there will be cases in which one side accommodates the other simply because it is able to do so without loss or inconvenience to itself, or because there are extraneous reasons for wanting so to do. I use the word “extraneous” in lieu of the word “ulterior” used in Granby, but with the purpose of describing a motivation other than that of facilitating the proposed transaction.

Gyles J found difficulty with the proposition that parties at arms length might become involved in transactions which were not at arms length. I suspect that his Honour meant that the very fact of entering into a non-arms length transaction means that the parties are not at arms length for the purposes of that transaction. I agree with that proposition.

In summary

I have no real difficulty with any of the propositions which emerge from those cases. They may be summarised as follows:

• in determining whether parties have dealt with each other at arms length in a particular transaction, one may have regard to the relationship between them;

18981 ATR 180] FCT v AXA ASIA PACIFIC HOLDINGS LTD (Dowsett J)

• one must also examine the circumstances of the transaction and the context in which it occurred;

• one should do so with a view to determining whether or not the parties have conducted the transaction in a way which one would expect of parties dealing at arms length in such a transaction;

• relevant factors which may emerge include existing mutual duties, liabilities, obligations, cross-ownership of assets, or identity of interests which might enable either party to influence or control the other, or induce either party to serve a common interest and so modify the terms on which strangers would deal;

• where the parties are not in an arms length relationship, one may infer that they did not deal with each other at arms length, and that the resultant transaction is not at arms length;

• however related parties may, in some circumstances, so conduct a dealing as to displace any inference based on the relationship;

• unrelated parties may, on occasions, deal with each other in such a way that the resultant transaction may not properly be considered to be at arms length.

Is s 124-780(5) engaged?

In the present case AXA bears the burden imposed by s 14ZZO of the Taxation Administration Act 1953 (Cth) (the TAA) of establishing that the Commissioner’s assessment was excessive. In order to do this it undertakes the task of demonstrating that it was not obliged to comply with the requirements of s 124-780(5) of the ITAA 1997, that subsection not being engaged pursuant to s 124-780(4). It is common ground that AXA cannot satisfy the requirements of s 124-780(5)(b). However s 124-780(4) will only engage the operation of s 124-780(5) if the parties to the relevant transaction did not deal with each other at arms length, and either:

(a) neither the original entity nor the replacement entity had at least 300 members just before the arrangement started; or

(b) the original interest-holder, the original entity and an acquiring entity were all members of the same linked group just before that time.

It seems to be common ground that for present purposes s 124-780(4)(a) applies whilst s 124-780(4)(b) does not. Thus, if the relevant parties did not deal at arms length, s 124-780(4) will operate to engage s 124-780(5). It is therefore necessary that AXA demonstrate that it dealt with Macquarie Bank at arms length.

At first instance

The primary judge said (at ATR 873 [101]; ATC 10,501-10,502 [101]), concerning the decision in ACI Operations (at 334 [223]-[224] and 336 [239]-[241]):

Counsel for the Commissioner relied particularly on so much of Dodds-Streeton J’s judgment as commences “Unrelated parties …”. I would, with respect, regard that passage as unobjectionable, but it expresses the point at a very high level of generality. It leaves open the factual, and I consider more problematic, questions which will arise in every case where there was “collusion” or rehearsed dealings to the extent sufficient to justify the conclusion that the parties did not deal with each other at arms length.

I do not entirely understand the term “rehearsed dealings.” Presumably, it means something like collusion. It suggests an act previously agreed upon. The word “collusion” itself carries negative overtones. The New Shorter Oxford Dictionary (1993) defines it to mean: “… secret agreement or understanding for nefarious purposes; conspiracy; fraud, trickery.” Its legal meaning is said to be: “… an agreement between 2 or more people, especially ostensible opponents in a suit, to act to the prejudice of a third

190 FEDERAL COURT OF AUSTRALIA [(2010)

party or for an improper purpose.” The word “collude” means: “… conspire, plot, connive; act in secret concert.” Nothing in the wording of s 124-780 suggests the need to prove any degree of moral impropriety. None of the other cases, nor the dictionary references adopted in WA Meat Exports suggests the necessary involvement of an element of collusion. As far as I can see the term is used only in Granby, but Lee J was suggesting only that collusion between interested parties would mean that dealings were not at arms length. Collis and ACI suggest that the “dictation” contemplated in Granby need not involve moral, legal or physical obligation. The cases generally support an approach which involves examination of the parties’ dealings in order to determine whether they have dealt with each other in the way in which parties at arms length might deal in such a transaction. Collusion might be an example of dealings not at arms length. Submission of the will of one party to that of the other may be the cause of a transaction being other than at arms length. Neither “label” exhaustively identifies the essential indicia of such a transaction.

The primary judge (at ATR 873 [103]; ATC 10,502 [103]) accepted denials by Messrs Owen and Penn that AXA and Macquarie Bank had colluded with a view to devising a means to avoid the incidence of capital gains tax or otherwise. His Honour also observed that the Commissioner had not strongly pressed the assertion of collusion. His Honour found no evidence of collaboration between AXA and Macquarie Bank, and that there was no suggestion in the evidence that AXA or any of its directors or senior executives knew, before 1 March 2002, that Macquarie Bank proposed a structure in which any acquirer of AXA Health shares would not be wholly owned by Macquarie Bank. AXA understood that there would be roll-over relief on its capital gain. However his Honour considered that such knowledge did not amount to collusion or submission by Macquarie Bank of its will to the wishes of AXA or vice versa.

These comments suggest that his Honour limited his inquiry to the alternatives expressed by Lee J in Granby (at ATR 403-404; ATC 4243-4244; ALR 507) (collusion or submission of the will). In my view that approach involved a narrower test than is established by the cases. This is particularly so, given the connotations attaching to the word’ “collusion” and to the concept of submission of the will. As is demonstrated by Collis, mere agreement out of lack of interest may be sufficient to deprive a transaction of arms length status. Whilst Jenkinson J seems to have considered such agreement to involve submission of the will, the expression seems a little too dramatic for use in describing a commonplace event. The cases indicate that the proper approach necessarily involves an examination of the relationships between the parties and an assessment of their conduct against expectations as to the way in which a similar transaction would be conducted at arms length.

The appeal

In the notice of appeal the Commissioner asserts that the primary judge erred in holding that AXA and Macquarie Bank had dealt with each at arms length and, in particular, that:

3. The learned judge erred in failing to hold that AXA and [Macquarie Health Funding] did not deal with each other “at arms length” within the meaning of s 124-780(4) of the ITAA 1997 in circumstances where:

(a) in return for a fee, [Macquarie Bank] (on behalf of [Macquarie Health Funding]) designed the structure of the transaction to further the interests of AXA by reducing the capital gains tax payable upon its disposal of shares in AXA Health;

(b) further or alternatively, in return for a fee, [Macquarie Bank] (on behalf of

19181 ATR 180] FCT v AXA ASIA PACIFIC HOLDINGS LTD (Dowsett J)

[Macquarie Health Funding]) prepared the terms of the transaction so as to further the interests of AXA by reducing the capital gains tax payable upon its disposal of shares in AXA Health;

(c) further or alternatively, in negotiating the terms of the transaction, the parties worked together to further the interests of AXA by reducing the capital gains tax payable upon its disposal of shares in AXA Health.

4. The learned judge erred in concluding that the fact that a transaction is devised in a certain way by a party to obtain a revenue advantage for the other party does not mean that the transaction is a non-arms length one for the purposes of s 124-780(4) of the ITAA 1997.

This approach focuses upon both the relationship between AXA and Macquarie Bank and the conduct of negotiations between them. In his written submissions the Commissioner submits that the primary judge erred in his interpretation of the requirement that there be an arms length dealing and in his conclusions on the facts.

The dealings

During 2001, Macquarie advisory was advising AXA concerning the proposed disposal of its subsidy AXA Health. A possible buyer was MBF. Negotiations had been continuing for some time. As appears from the primary judge’s reasons (at ATR 834 [6]; ATC 10,468 [6]) Macquarie advisory “had become concerned that … ‘there were no competitive forces driving the negotiations with MBF.’” There was also concern about the financial ability of MBF to fund the acquisition and complete the transaction. For these reasons Ms Birch of Macquarie advisory and others were considering alternative options, including a preliminary investigation as to the viability of an initial public offering of shares. Subsequently there was consideration of a leveraged buy-out. Macquarie advisory sought to engage Macquarie PTG in the process. On 18 November, Mr McLean of Macquarie advisory had sent an e-mail to Macquarie Bank personnel, including Mr Facioni who was responsible for the operation of Macquarie PTG. A meeting with AXA was scheduled for 21 November 2001 at which Macquarie PTG was to make a presentation concerning a proposed initial public offering or leveraged buy-out. The e-mail appears at appeal book Pt B vol 1, tab 55. It included the following information:

• that AXA was very interested in an initial public offer or an management buy-out/leveraged buy-out;

• “Negotiations continue with MBF – the latest development is that we have set up a 2 week deadline to resolve the (long list of) outstanding issues. By the end of this 2 week period (Friday, 30 November) it is likely we will either call off negotiations or start frantically trying to document a deal by Christmas. As a reminder, MBF are offering a ‘pivot price’ of $560,000,000, with an upside sharing mechanism that could achieve total consideration of up to $640,000,000-$650,000,000 if the business performs well (and a downside risk sharing mechanism if adverse regulatory events occur). AXA is likely to have to provide MBF with around $250,000,000 of vendor finance, which AXA is unsurprisingly not particularly happy about;”

• Mr McLean’s assessment of AXA’s likely reaction to various price ranges;

• that AXA would probably prefer the management buy-out/leveraged buy-out over an initial public offering because it would be implemented more quickly and have lower transaction costs; and

192 FEDERAL COURT OF AUSTRALIA [(2010)

• that Mr McLean would confer with the various addressees to ensure that “we are all happy with” the proposed presentation to AXA.

The letters “MBO” mean “management buy-out”. The distinction between an management buy-out and a leveraged buy-out is not presently relevant.

In providing this information to Macquarie Bank, Mr McLean was assisting Macquarie Bank to prepare its proposal to AXA. It is not clear whether he did so in the belief that Macquarie Bank would use the information in order to assist AXA to achieve its goal or for its own purposes. However the e-mail suggests that he was participating as an officer of a potential purchaser. The presentation occurred on 21 November 2001. It seems from the presentation slides used on that occasion, that Macquarie Bank’s involvement as a purchaser was already contemplated. In the presentation, the proposed price range reflected the range suggested by Mr McLean. AXA had previously determined that AXA Health was worth $570,000,000 plus a further $105,000,000, representing one-half of its valuation of “agreed synergies”. Thus AXA was asserting a total valuation of $675,000,000. Whether Mr McLean knew of this view is not clear, but he seems to have had knowledge of AXA’s expectations.

Macquarie Bank suggested that the leveraged buy-out process might be conducted in parallel with a trade sale to MBF and an initial public offering at no additional cost to AXA. His Honour understood this to mean that if negotiations with MBF came to fruition, AXA Health could be on-sold from Macquarie Bank to MBF. This suggests that the relationship between AXA and Macquarie Bank was not that usually found between potential seller and potential buyer.

Although at some stages it was suggested that Macquarie Bank might retain AXA Health for up to 3 years in the hope of re-selling at a profit, the evidence generally suggests an intention to dispose of it as soon as was practicable. Further, Macquarie Bank seems never to have necessarily expected to derive a profit on resale, although it no doubt hoped for such an outcome. The evidence suggests that Macquarie Bank’s interest in the transaction was substantially focussed upon the fees to be derived from facilitating it and not from the acquisition of the asset. In that sense Macquarie Bank was not a willing purchaser, dealing with a not unwilling vendor, to paraphrase the language of Griffith CJ in Spencer v Commonwealth (1907) 5 CLR 418 at 427 at 432. Rather, it was anxious to facilitate such a sale, even if it had temporarily to acquire AXA Health itself. Nor was the transaction of the kind contemplated by Isaacs J (at 441) in the same case, when he said:

To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration.

His Honour was clearly speaking of a buyer wishing to acquire the land, not facilitate a sale to somebody else.

Mr Facioni said in evidence that Macquarie Bank’s interest was in earning the fees associated with setting up and completing the transaction, suggesting that the possibility of profit on any resale of AXA Health was largely incidental to the motivation which led it to enter into the transaction. He said at paras 9-10 of his affidavit:

9. [Macquarie Bank] did not intend to become a permanent or long-term owner of a private health insurance business. It had never carried on such a business and did not seek to do so at this time. At the time of conceiving and developing the proposal regarding AXA Health I envisaged that [Macquarie Bank] would pre-arrange a full or partial sale of AXA Health before entering into any binding agreement with the applicant to acquire the company, in effect a form of sub-underwriting. This could potentially be done by organising

19381 ATR 180] FCT v AXA ASIA PACIFIC HOLDINGS LTD (Dowsett J)

an equity consortium of private investors, thus mitigating the burden and risk for [Macquarie Bank] of on-selling AXA Health.

10. I considered that organising an equity consortium as part of the leveraged buy-out would have significant advantages for [Macquarie Bank]. As the arranger of the equity consortium, [Macquarie Bank] would derive significant fees from the consortium members as consideration for the provision of advisory, equity, underwriting and debt arranging services to the consortium. I considered this to be particularly attractive in view of the fact that [Macquarie Bank] would also derive a significant underwriting fee from the applicant.

At para 43 he said:

In the course of preparing this affidavit I have become aware that the respondent has suggested that if the applicant had not sold AXA Health to [Macquarie Health Acquisitions], it would have sold AXA Health directly to MB Health Holdings. That suggestion is incorrect. The transaction with the applicant to purchase AXA Health had been originated, structured, negotiated and executed by [Macquarie Bank]. MB Health Holdings, BUPA and [BUPA Australia] were participants in the transaction, with [Macquarie Bank] as the overall transaction sponsor. [Macquarie Bank] stood to receive certain financial benefits for arranging and leading the transaction and for assuming certain material risks (financial and reputational) and devoting significant resources throughout the course of the transaction. At no time was MB Health Holdings in a position independently to offer to acquire AXA Health and, as a 50% shareholder in MB Health Holdings with significant commercial benefit at stake, [Macquarie Bank] would not have permitted such a transaction to occur.

This evidence suggests strongly that in negotiating the agreement to acquire AXA Health from AXA, Macquarie Bank was not negotiating as a potential purchaser in the sense used by the High Court in Spencer. The primary motivation seems not to have been either long-term acquisition of the business, or even acquisition for the purpose of resale at a profit. The primary incentive for its involvement in the transaction appears to have been the associated fees, both those to be received from AXA and those to be received from the proposed consortium: see also the judgment at first instance (at ATR 843-844 [24]-[26]; ATC 10,476-10,477 [24]-[26] and ATR 846 [31]-[32]; ATC 10,478-10,479 [31]-[32]).

Various other contemporaneous documents demonstrate the ambiguous nature of the relationship between Macquarie Bank and AXA. In a “proposal summary” for Project Huey (apparently a name used to identify the AXA Health project) it is said that:

AXA has appointed Macquarie Bank Ltd … to act as financial adviser in regard to the divestment.

As part of this role, Macquarie Bank is exploring the feasibility of a management buyout of AXA Health for [$550-$600] million.

Thus, at this stage, Macquarie Bank did not see itself as a buyer but as an adviser. Under the heading “Constraints” the document states:

While critical to establishing the feasibility of a management buy-out of AXA Health, AXA has not consented to Macquarie Bank approaching a bank prior to the expiry of MBF’s exclusivity period (31 December 2001). Further, Macquarie Bank has not yet conducted financial, accounting or legal due diligence on the business or sought the advice of an independent consultant.

Accordingly, this paper and all representations made to AXA are subject to achieving Macquarie Bank’s assumptions relating to debt and confirmatory due diligence on AXA Health.

The reference to the need for AXA’s consent to Macquarie Bank’s approaching a bank suggests that the latter was to act on behalf of AXA in so doing. This is hardly consistent with Macquarie Bank being involved in an arms length transaction with AXA. In the

194 FEDERAL COURT OF AUSTRALIA [(2010)

document Macquarie Bank discloses its own interests in investing up to $125,000,000 in the project, the balance to be provided by a strategic partner. A number of possible strategic partners are identified, including BUPA. Macquarie Bank’s involvement was also said to involve receipt of fees. Under the heading “Potential upside” (apparently from Macquarie Bank’s point of view) the “transaction structuring opportunities” are said to be to “[m]anage capital gains tax exposure for AXA on sale (share in up to $100,000,000 NPV uplift to AXA)” and various other matters. Some of the other potential advantages may have involved longer-term ownership. However it seems clear that Macquarie Bank saw itself as providing a service to AXA, which service included management of AXA’s capital gains tax exposure.

In a memorandum dated 22 January 2002 it is suggested that Macquarie Bank was interested in acquiring AXA Health for the purpose of resale at a profit. However the proposed structure seems to have contemplated resale within 6 months. In a subsequent internal briefing memorandum dated 22 February 2002 the preferred option was resale within 3-12 months, although retention for 2-3 years was also contemplated. Macquarie Bank was described as:

Promoter, equity arranger/participant, debt arranger, financial adviser. Ongoing strategic relationship covering M&A and ECM Services, funds management, x-distribution [sic] of retail products.

In identifying returns to Macquarie Bank, various fees were identified totalling $20,000,000-$54,000,000, including some fees payable by entities other than AXA. A possible profit of $16,000,000-$20,000,000 from equity participation was also contemplated.

The ultimate proposal advanced for approval by Macquarie Bank involved an equity exposure limited to $20,000,000. In the end the equity sell down agreement provided that AXA would participate in any profit derived from the subsequent disposition of AXA Health or its business within 12 months of the completion of the underwriting agreement. No such profit was derived. Pursuant to the underwriting agreement a $5,000,000 underwriting fee was payable to Macquarie Bank. Pursuant to the equity sell down agreement a further fee of $5,000,000 was payable for procuring Macquarie Health Acquisitions as purchaser to satisfy its obligations under the agreement. By the time that the transaction documentation was completed BUPA had effectively committed itself to taking all of the shares in AXA Health in the event that Macquarie Bank had not otherwise been able to dispose of its interest.

Macquarie Bank’s ambiguous position had not passed unnoticed. On 26 Novem- ber 2001, Mr McLean wrote to Mr Facioni, pointing out difficulties which Ms Foster of AXA had identified. They included pursuing the leveraged buy-out with Macquarie Bank in face of the exclusivity arrangement which existed between AXA and MBF. She had also raised the question of a conflict of interest on the part of Macquarie Bank as between the role of Macquarie advisory and Macquarie Bank’s role in any leveraged buy-out. Ms Foster was also concerned about the fact that Macquarie Bank, as a potential purchaser, had received more information than any other potential bidder for AXA Health. She suggested that Macquarie Bank should reduce the level of its advisory fees given that it was to get “a good deal” on the leveraged buy-out. As I have previously observed, Mr McLean’s interest in the transaction seems not to have been limited to advising AXA on behalf of Macquarie advisory. He suggested, apparently as a way of avoiding an accusation that AXA was negotiating with Macquarie Bank in breach of the exclusivity agreement with MBF, that: “… there is an argument that we are really looking at financing options for AXA Health … rather than negotiating a sale. …” However he considered this to be “hard to maintain if we go much further.” Mr McLean

19581 ATR 180] FCT v AXA ASIA PACIFIC HOLDINGS LTD (Dowsett J)

suggested that if Macquarie Bank acquired AXA Health, “we could announce the deal and then give alternative bidders one month to beat the offer in order to ensure that the market is fully tested (although it probably is already).” Ms Foster apparently replied that she did not think that this was “a full answer” as Macquarie Bank had “access to information that others do not.” Mr McLean then suggested that: “… we could perhaps agree to set up Chinese Walls between our advisory team and our leveraged buy-out team, to put the leveraged buy-out team in the same position as they would be in if they were from a party external to Macquarie Bank.” In view of the information already supplied, this precaution seems to have emerged at a rather late stage. Mr McLean continued:

I’m not sure AXA should be concerned about that – it is in their best interests to give us enough information to put in a fully informed bid (and they are not risking a breach of confidentiality doing this, given that Macquarie Bank knows the deal already). If the issue is that there is not a level playing field between potential bidders, we could use a mechanism such as the “one month to bid” option mentioned above. If AXA really finds this difficult, we could perhaps look to set up Chinese Walls to limit the flow of information.

As to the question of reduction in fees he said:

The answer here is pretty clear – if we take this up Macquarie Bank will be taking some very material risks and is likely to pay a figure close to what a synergy buyer is offering for the business. At the price paid, the deal may or may not go well for Macquarie Bank: it is not appropriate for us to lose our fee given that we are paying a full price for the business. The advice is a separate deal from the acquisition.

AXA was concerned to ensure that it participated in any profit derived by Macquarie Bank from on-selling its interest in AXA Health at a profit. Whether the concern was primarily financial or more about reputation in the business community is unclear. However it is clear that AXA and Macquarie Bank accepted that there might be a relatively quick resale at a profit, suggesting doubts about whether the price being paid to AXA was market price.

These considerations suggest that this was not a case in which the sale price was negotiated between a willing, but not overly anxious vendor and a willing, but not overly anxious purchaser. It was negotiated between a relatively anxious vendor (although that may not matter much) and a merchant bank which was anxious to derive fees from the transaction, and was willing to facilitate it by making a short-term investment on its own accord in the expectation that it would recoup it, possibly with a profit, possibly at a loss. However, by the time that the agreement was made, the possibility of a loss was gone. There was, however, the chance of a profit which Macquarie Bank would share with AXA.

The early stages of the negotiation, from which the ultimate form of the transaction largely emerged, took place against a background of the knowledge provided to Mr Facioni and others by Mr McLean. He had derived it from his position as adviser to AXA. The information included AXA’s likely attitude to possible monetary yields from the proposed sale and the state of dealings between AXA and MBF, the other likely purchaser. The position was such that both Ms Foster (for AXA) and Mr McLean were concerned at the possibility of conflict of interest. Those concerns were justified. It is also clear that the transaction was structured so as to minimise AXA’s exposure to capital gains tax. This was not a case of a potential purchaser offering a potential vendor a tax advantage by structuring the transaction in a way which yielded a particular benefit to the latter as part of the inducement for accepting the offer. This was rather a case of Macquarie Bank using its cash resources to provide a service to AXA, its client, for a fee.

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Section 124-780(4) of the ITAA 1997 addresses dealings between the “original interest holder” and “an acquiring entity.” In the present case, AXA was the original interest holder. It is common ground that Macquarie Bank acted on behalf of the acquirer, whether it was Macquarie Health Acquisitions or Macquarie Health Funding, and that it is Macquarie Bank’s conduct which is to be assessed, together with AXA’s, for the purpose of determining whether the parties dealt with each other at arms length. The dealings in question were those which led to the exchange of shares in AXA Health for shares in Macquarie Health Acquisitions.

Conclusion

The evidence demonstrates the following aspects of those dealings:

• Macquarie Bank was engaged in the dealings for the purpose of assisting AXA to dispose of AXA Health;

• Macquarie Bank received information concerning the dealings between AXA and MBF, the other possible acquirer, which information informed its dealings with AXA regarding the acquisition of AXA Health;

• at least a substantial part of the benefit which Macquarie Bank expected to derive from the transaction was comprised of fees for facilitating it and from the acquirer;

• Macquarie Bank advised AXA on the advantages and disadvantages of the proposed transaction;

• Macquarie Bank’s facilitation of the transaction included its own short-term capital participation, at least partly for the purpose of earning its fees;

• both AXA and Macquarie Bank were conscious that there was at least a possibility that Macquarie Bank could make a profit on a quick resale of its interest in AXA Health, leading AXA to demand and receive a promise that it would share in any such profit; and

• by the time that the transaction was effected, Macquarie Bank’s capital exposure was minimal or non-existent.

In my view there was an identity of interest in the transaction, as between AXA and Macquarie Bank, which was not simply that of vendor and purchaser. Macquarie Bank had, in effect, undertaken to assist AXA to dispose of AXA Health in a way which would minimise AXA’s capital gains tax exposure. They were to have an ongoing relationship with respect to any short-term profit on resale. Their relationship was not at arms length. Their dealings reflected that fact. Those dealings were inevitably coloured by the disclosures made by Mr McLean in November 2001. From Macquarie Bank’s point of view the parameters of the transaction were effectively set by knowledge of AXA’s ambitions for the sale and the state of negotiations with MBF. Mr McLean’s motivation may have been to benefit AXA, and Macquarie Bank may also have had that intention. Indeed, that is the point. The transaction was designed to enable Macquarie Bank to obtain fees for services, not to acquire an asset. The negotiations concerning AXA’s participation in any profit on resale suggested a perception that Macquarie Bank’s offer might not reflect market price.

Orders

I would allow the appeal and set aside the orders below. I would order that the application be dismissed with consequential costs orders in respect of the proceedings below and on appeal.

19781 ATR 180] FCT v AXA ASIA PACIFIC HOLDINGS LTD (Dowsett J)

Edmonds and Gordon JJ.

Introduction

The respondent, AXA Asia Pacific Holdings Ltd, disposed of its shares in a wholly-owned subsidiary, AXA Health Insurance Pty Ltd, on 30 August 2002 for $570,000,000 pursuant to agreements entered into on 4 June 2002. The trial judge held that under Subdiv 124-M of the Income Tax Assessment Act 1997 (Cth) (the ITAA 1997), AXA was entitled to partial roll-over relief for $383,125,293 of the capital proceeds on the disposal of its shares in AXA Health.

There were 3 substantive issues before the trial judge:

(1) did AXA deal at arms length with Macquarie Bank Ltd? A subsidiary of Macquarie Bank (Macquarie Health Funding Pty Ltd) as nominee for Macquarie Health Acquisitions Pty Ltd) acquired the shares in AXA Health;

(2) if yes to (1), did Pt IVA of the Income Tax Assessment Act 1936 (Cth) (the ITAA 1936) operate to deny AXA the partial roll-over relief? and

(3) did the Commissioner of Taxation err in assessing penalty tax? The trial judge (AXA Asia Pacific Holdings Ltd v FCT (2009) 77 ATR 829) found that AXA and Macquarie Bank dealt with each other at arms length and Pt IVA of the ITAA 1936 did not apply. Given the findings of the trial judge, it was unnecessary for his Honour to consider the third substantive issue.

On appeal, the Commissioner challenged both of the trial judge’s findings – that AXA and Macquarie Bank dealt with each other at arms length and that Pt IVA did not apply. The parties accepted that consideration of the third issue (penalties) should be deferred until the substantive appeal was determined. First, the Commissioner submitted that the trial judge erred in his interpretation of s 124-780(4) of the ITAA 1997 and in his conclusion that AXA and Macquarie Health Funding dealt with each other at arms length: appeal grounds 1-4. In broad terms, the Commissioner submitted that AXA did not deal at arms length with Macquarie Bank because “Macquarie Bank’s role in structuring the transactions, so as to minimise the capital gains tax payable by AXA, meant that Macquarie Health Funding (which was a subsidiary of Macquarie Bank created for the purposes of the transactions) did not deal with AXA at arms length.”

Next, if the Commissioner’s appeal against the trial judge’s finding that AXA and Macquarie Health Funding dealt with each other at arms length was dismissed, the Commissioner submitted that the trial judge erred in finding that Pt IVA of the ITAA 1936 did not apply to disallow the partial roll-over relief because AXA obtained a “tax benefit” within the meaning of s 177C(1)(a) of the ITAA 1936 and, further, having regard to the matters set out in s 177D(b) of the ITAA 1936, it would be concluded that one of the persons who entered into or carried out the scheme or any part of the scheme did so for the purpose of enabling AXA to obtain that tax benefit in connection with the scheme: appeal grounds 5-15.

For the reasons that follow, we would dismiss the appeal. The trial judge was correct to conclude that AXA and Macquarie Health Funding dealt with each other at arms length and that AXA did not obtain a tax benefit within the meaning of s 177C(1)(a) of the ITAA 1936.

Facts

No ground of appeal challenged the findings of fact by the trial judge. What follows is a summary of the facts set out (at ATR 833-865 [2]-[81]; ATC 10,467-10,469 [2]-[81]) of his Honour’s reasons for decision.

AXA Health, a wholly owned subsidiary of AXA, inter alia, operated a profitable health insurance business trading as “HBA” in Victoria and “Mutual Community” in

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South Australia. By the end of 2000, a committee established to conduct a strategic review of AXA’s health insurance business determined that AXA Health’s position was unsustainable in the long-term. A number of courses open to AXA were considered, including the acquisition of another health insurance business or businesses (Medical Benefits Fund of Australia Ltd (MBF), Medibank Private or the acquisition of a combination of smaller health insurers), a strategic alliance with MBF or, if none of those proved viable, the divestment of AXA Health. The committee’s chairman (Mr Les Owen, AXA’s group chief executive (Mr Owen)) concluded the most propitious options were a merger with MBF or the sale of the existing business to MBF.

In early 2001, AXA engaged Macquarie Bank (through its advisory arm (Macquarie Bank advisory)) to assist it in an approach to MBF. Despite negotiations in the first half of 2001 between AXA and MBF about the possible merger of MBF with the business of AXA Health, the negotiations had concluded unsuccessfully by July 2001.

On 27 July 2001 and again on 13 August 2001, MBF made “an indicative proposal” to AXA to acquire AXA Health. On 13 August, the headline price was increased to $535,000,000. Under both proposals, the sum to be paid at settlement was $250,000,000 with the balance to be paid by way of vendor finance. AXA’s board considered the proposal on 29 August 2001. MBF’s offer was significantly below AXA’s valuation of AXA Health of $675,000,000 comprising a “stand alone” valuation of $570,000,000 and an “agreed synergies” valuation of $105,000,000. The AXA board were told that the tax effects (a capital gains tax liability of approximately $140,000,000 and revenue loss trade offs) would impact on the net proceeds. The board resolved to give MBF a short period of exclusivity it had requested (subject to appropriate milestones) to move the parties toward a satisfactory price and funding structure.

At about the same time, Macquarie Bank advisory was assisting AXA to locate other domestic and foreign sources of interest in AXA Health including meeting with representatives of British United Provident Insurance Ltd (BUPA) of the United Kingdom. Ms Marianne Birch, a division director with Macquarie Bank advisory (Ms Birch), was one of the group who met with BUPA. Macquarie Bank advisory ultimately concluded that there was little or no domestic or foreign interest in the acquisition of AXA Health. By October 2001, Macquarie Bank advisory was investigating 2 further options – an initial public offering and a leveraged buy-out of AXA Health. The prospect of a leveraged buy-out had been raised by Ms Susan Foster, AXA’s strategic projects manager (Ms Foster). Macquarie Bank advisory contacted another arm of Macquarie Bank to assist – the principal transactions group (Macquarie Bank PTG). Mr Richard Facioni, an executive director of Macquarie Bank (Mr Facioni), was the head of Macquarie Bank PTG.

On 21 November 2001, Macquarie Bank PTG made a presentation to AXA. Mr Owen, Ms Foster and Mr Andrew Penn, AXA’s general manager of operations (Mr Penn), attended. (Mr Penn was the executive with overall responsibility of disposing of AXA Health on the most favourable terms). The leveraged buy-out proposed by Macquarie Bank PTG was that AXA Health be sold “into an unlisted, leveraged structure.” A company would be established to acquire AXA Health in which Macquarie Bank and other investors would hold the equity. Debt finance of $300,000,000 would be obtained. The leveraged buy-out proposal was to be conducted in parallel with a trade sale to MBF so that if AXA’s negotiations with MBF succeeded, AXA Health could be on-sold from the Macquarie Bank structure to MBF. (In fact, in the first week of November 2001, AXA and MBF were still seeking to effect a sale of AXA Health to MBF. Mr Owen of AXA granted MBF a further period of exclusivity until 31 December 2001).

The AXA board met on 30 November 2001. Mr Penn told the board that except for a

19981 ATR 180] FCT v AXA ASIA PACIFIC HOLDINGS LTD (Edmonds and Gordon JJ)

sale to MBF, the prospects of disposing of AXA Health for a price in line with AXA’s expectations were limited. The board resolved to continue discussions with MBF and progress investigations into the initial public offering and the leveraged buy-out options to determine price and feasibility.

Macquarie Bank PTG prepared a memorandum dated 7 December 2001 which proposed the creation of a new entity “BidCo” to acquire AXA Health. The memorandum also addressed, inter alia, the advantages and risks to Macquarie Bank of such a transaction. Although the scrip-for-scrip exchange was not mentioned, the trial judge concluded that the evidence left “little doubt that at least someone in Macquarie Bank PTG had it in mind to structure the transaction in such a way that capital gains tax would not be payable.” On 9 December 2001, a form of the memorandum (in the same terms as the one prepared on 7 December 2001) was sent to the chief executive officer of Macquarie Bank and to the head of the investment banking group within Macquarie Bank.

The AXA board met again on 20 December 2001. The board considered a paper (contributed to by Macquarie Bank advisory) which compared options for the disposal of AXA Health. The board endorsed a recommendation that AXA maintain a tough line with MBF and not to extend exclusivity beyond 31 December 2001 unless there was agreement on value and if not, then pursue the initial public offering/leveraged buy-out without precluding ongoing discussions with MBF. A “Chinese wall” was in place between Macquarie Bank advisory and Macquarie Bank PTG in relation to the disposal of AXA Health.

During January 2002, a number of events occurred. On 2 January 2002 (immediately after the exclusivity period provided to MBF had expired), Macquarie Bank advisory provided Mr Penn with a table setting out the net present value of the various options then potentially available for the sale of AXA Health. The tax payable by AXA was one of the economic implications. On 22 January 2002, Macquarie Bank PTG prepared a confidential memorandum which identified the key steps in its proposal for an leveraged buy-out of AXA Health. The memorandum again referred to the idea of Macquarie Bank establishing BidCo, which would acquire AXA Health. The memorandum was the first documentary reference for the balance of the consideration (after the deposit) to be convertible shares in BidCo. BidCo ultimately became Macquarie Health Acquisitions.

On 16 January 2002, Macquarie Bank advisory met again with representatives of BUPA. Mr Owen was told of BUPA’s interest. He authorised Macquarie Bank advisory to raise with BUPA the possibility of BUPA participating in the leveraged buy-out proposed by Macquarie Bank PTG, or of BUPA making a bid for the outright acquisition of AXA Health. BUPA told Ms Birch of Macquarie Bank advisory that BUPA could not finance an outright acquisition of AXA Health but was keen to participate in a leveraged buy-out by contributing equity. Ms Birch told the BUPA representative that Macquarie Bank advisory could not deal with BUPA about equity participation in a leveraged buy-out (because of the “Chinese Wall”) and gave the representative Mr Facioni’s telephone number. Mr Facioni provided BUPA with a detailed briefing paper which, inter alia, summarised the financial position of AXA Health, the proposed structure for the leveraged buy-out and provided that Macquarie Bank would be retained to act as financial advisors to BidCo and would receive fees for financial advice and debt and equity arranging.

At the same time, AXA was still considering a sale of AXA Health to MBF. On 11 February 2002, Mr Penn advised Mr Owen his preference was for a direct sale to MBF rather than the leveraged buy-out proposal. Macquarie Bank PTG spent February preparing drafts of an “indicative bid” for AXA Health.

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On 27 February 2002, AXA’s board considered a paper prepared by Mr Owen. The paper informed the board that progress on both options (direct sale to MBF and the leveraged buy-out) was continuing slowly and that AXA would continue with the strategy of working with both parties. The board minutes record that it appeared that the leveraged buy-out team intended to realise the investment through a subsequent initial public offering and AXA would seek to ensure participation in any excess over the offer from the leveraged buy-out team.

On 1 March 2002, Macquarie Bank made a “non-binding” bid for AXA Health, described as an “unconditional underwriting.” The bid’s form was devised by Macquarie Bank PTG and other groups in Macquarie Bank, but not Macquarie Bank advisory. AXA had no input into the structure or form of the bid. Letters of support from third party investors were included in the bid. The bid contained, inter alia, provisions that:

(1) Macquarie Bank was not a strategic acquirer nor long-term owner of AXA Health;

(2) Macquarie Bank would undertake the acquisition through a Macquarie Bank special purpose company – Macquarie Health Acquisitions;

(3) Macquarie Bank would assume the risk of on-selling AXA Health either by on-sale to a private equity consortium or an initial public offering;

(4) AXA was to receive a minimum price of $550,000,000 plus up to a further $10,000,000 if AXA Health was subsequently sold by way of an initial public offering within 12 months;

(5) consideration of $550,000,000 would be paid by a $65,000,000 non-refundable deposit plus $485,000,000 vendor financing in the form of converting vendor shares in AXA Health;

(6) AXA would grant Macquarie Bank a period of exclusivity during which time AXA would undertake not to enter into discussions with third parties in relation to a trade sale or initial public offering of AXA Health; and

(7) an underwriting fee of $10,000,000 plus stamp duty on share transfers would be payable by AXA to Macquarie Bank.

On 8 March 2002, AXA responded to the bid. AXA gave, to adopt the words of the trial judge, “limited, provisional and somewhat cautious support to the Macquarie Bank bid.” AXA required a number of issues to be addressed (including that the voting and distribution entitlements of the vendor shares had to be increased) and proposed a number of other modifications (including a base price of $560,000,000 and a requirement that AXA share, to the extent of 50%, in any profit made from the on-sale of AXA Health under certain conditions).

After discussions between Macquarie Bank and the proposed investors, on 16 April 2002 Macquarie Bank submitted a revised non-binding bid for AXA Health. It followed the same general approach as the initial bid. The total price was increased to $560,000,000 made up of $65,000,000 cash deposit and convertible vendor shares to the value of $495,000,000, AXA was to be entitled to a share of 50% (reducing pro-rata to 30% over 12 months) of any profit made from any on-sale of AXA Health for more than $575,000,000 (net of costs) within 12 months and, subject to negotiation, AXA would have 25% of the voting power at a general meeting of Macquarie Health Acquisitions and would have one seat on the board.

On 17 April 2002, the AXA board considered 2 options – the sale to MBF and Macquarie Bank’s non-binding bid. The scrip-for-scrip roll-over provisions in the Macquarie Bank bid were discussed at this meeting. The board resolved that the

20181 ATR 180] FCT v AXA ASIA PACIFIC HOLDINGS LTD (Edmonds and Gordon JJ)

Macquarie Bank bid should be progressed to a heads of agreement and that MBF should be informed that although AXA would continue to negotiate with MBF, it was no longer the preferred buyer.

On 19 April 2002, AXA responded to the “key commercial issues” of Macquarie Bank’s revised bid. AXA’s response included seeking to extend the profit share in the event of the initial public offering or trade sale to 18 months, and aggregating the underwriting fee and stamp duty at $10,000,000. Negotiations of the “key commercial issues” continued on 22, 24 and 26 April 2002.

On 29 April 2002, representatives from Macquarie Bank advisory (representing AXA), Macquarie Bank PTG and BUPA met for the first and only time. The file note of the meeting records, inter alia, that AXA expressed concern that it would be “embarrassed by an on-sale through an initial public offering at a significant profit” and further questioned what benefit it would obtain from paying large fees to Macquarie Bank to sell AXA Health to BUPA. The filenote further recorded that AXA would seek “appropriate profit share terms” to address these concerns.

On the same day, 29 April 2002, AXA extended the period of exclusivity to Macquarie Bank to 14 May 2002. As a result, AXA could negotiate with MBF but not with any other prospective acquirer, including BUPA. The concerns of AXA concerning BUPA’s larger equity stake in the acquisition of AXA Health were again expressed in an e-mail from Mr Owen on 7 May 2002, where he stated that AXA would “not be at all happy” if a trade sale to BUPA took place and that if BUPA were “changing their position in the whole business” that AXA should be talking with them directly. Mr Green responded on 8 May 2002. The issue was not addressed.

On 3 May 2002, AXA’s solicitors produced a first draft of the heads of agreement. The parties to the agreement were to be AXA, Macquarie Bank, Macquarie Health Acquisitions, and Macquarie Health Holdings Pty Ltd.

On 8 May 2002, Mr Bob Herbert of Macquarie Bank sent an e-mail to others within Macquarie Bank attaching a draft transaction description of how AXA Health was to be acquired. The document described, in some detail, the proposed arrangement including aspects that had been negotiated with AXA and aspects that had been negotiated with BUPA. The document included a diagram that set out the “acquisition structure to facilitate a scrip-for-scrip bid for AXA Health,” explaining the details of the companies and their relationship.

On the same day, 8 May 2002, Mr Herbert wrote another memorandum jointly with Mr Greg Pahek (an executive of Macquarie Bank PTG) seeking approval for the establishment of 3 special purpose companies required to complete the acquisition of AXA Health. These companies were Macquarie Health Holdings, Macquarie Health Acquisitions and Macquarie Health Funding. Macquarie Health Holdings was to have 100 ordinary shares of which 99 were to be held by Macquarie Bank and one was to be held by BDW Nominees Pty Ltd (a special purpose company owned by Macquarie Bank’s legal advisors, Blake Dawson Waldron). Macquarie Health Acquisitions was to have 100 ordinary shares of which 99 were to be held by Macquarie Bank and one was to be held by Macquarie Health Holdings. Macquarie Health Funding was to be wholly owned by Macquarie Health Acquisitions. The memorandum included another diagram explaining the structure of the proposed acquisition. The companies were duly incorporated on 10 May 2002.

Between 10 and 20 May 2002, further draft heads of agreement were being prepared by AXA’s solicitors. During this time, the agreement was renamed the “underwriting agreement.” On 20 May 2002, a new warranty was inserted to be given by Macquarie Bank that Macquarie Health Holdings would not be a wholly owned subsidiary of

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Macquarie Bank. On 22 May 2002, Macquarie Bank and BUPA Australia Pty Ltd (BAPL, the wholly owned subsidiary of BUPA) procured the incorporation of a company called MB Health Holdings Pty Ltd. By 22 May 2002, the price being offered by Macquarie Bank had risen to a total of $595,000,000, comprising of a deposit of $57.6 million and vendor shares in Macquarie Health Acquisitions of $537.4 million.

Meanwhile, AXA continued to deal with MBF as a possible (though not a preferred) buyer.

On 27 May 2002, Mr Facioni put the proposal for the acquisition of AXA Health (the proposition summary) to senior executives in Macquarie Bank for approval. The proposition summary provided that the transaction would occur in 4 stages. The first stage was the establishment of the transaction entities Macquarie Health Funding (described as “Fundco”), Macquarie Health Holdings, Macquarie Health Acquisitions and MB Health Holdings (described as “NewCo”), which had already occurred: see at [85]-[86] above. The proposition summary provided that MB Health Holdings’s role would be to acquire AXA Health either by the exercise of a put option by AXA to provide AXA with a “fallback” method of completing the sale of AXA Health, or, in the event that such an option was not exercised, by the acquisition of Macquarie Health Funding from Macquarie Health Acquisitions. MB Health Holdings would also have the task of raising debt funding from the banks, the equity funding from Macquarie Bank and BAPL, to fund the acquisition of AXA Health.

The second stage was the “announcement,” which proposed that Macquarie Bank would enter into a series of agreements which would “evidence the various parties’ intentions in respect of AXA Health.” These agreements were a binding conditional underwriting agreement with AXA, a binding equity participation agreement with BUPA and BAPL, 2 put options granted by BAPL to Macquarie Bank, one call option granted by Macquarie Bank to BAPL and credit-approved commitments from 2 named banks.

The third stage was described as “financial close” which described the execution of the sale documentation to acquire AXA Health and was divided into 4 categories, namely, capitalisation of the structure, the acquisition of AXA Health, the Macquarie Bank sell-down, and banking arrangements.

The final stage was “completion” which described the procedures necessary to settle the sale. The proposition summary further outlined, inter alia, the transaction’s risks and benefits to Macquarie Bank. The proposition summary was approved by the executives subject to 14 conditions.

On 30 May 2002, Macquarie Bank, BAPL, MB Health Holdings and BUPA entered into an “equity participation agreement.” By this agreement, Macquarie Bank and BAPL agreed to establish a consortium to own and operate AXA Health, and that MB Health Holdings would be the vehicle through which this would occur. Macquarie Bank and BAPL would each have a 50 per cent interest in MB Health Holdings, to be adjusted by factors such as “any sell-down” by Macquarie Bank under the agreement. Under the equity participation agreement, BAPL granted Macquarie Bank 2 put options and Macquarie Bank granted BAPL one call option in respect of Macquarie Bank’s shares in MB Health Holdings.

On the same day, 30 May 2002, Macquarie Bank forwarded its proposed offer for the sale of AXA Health to AXA. As the trial judge’s reasons for decision explained (at ATR 858-859 [61]-[62]; ATC 10,489 [61]-[62]):

[61] Also on 30 May 2002 (which was a Friday), Macquarie Bank forwarded its “proposed offer” for the sale of AXA Health to [AXA], attaching agreements in executable form, in which it made its preparedness to execute those agreements conditional upon [AXA] confirming in writing, by 7 pm on Monday, 3 June 2002, that it ([AXA]) had ceased

20381 ATR 180] FCT v AXA ASIA PACIFIC HOLDINGS LTD (Edmonds and Gordon JJ)

discussions and negotiations with all other prospective bidders, including MBF. Indeed, Macquarie Bank’s letter of 30 May stated that, absent [AXA] indicating its intention to “proceed with [the] proposal” by 7 pm on 3 June, the proposal would be withdrawn. [AXA’s] sub-committee met on the afternoon of 3 June 2002. It considered a further letter of that day from Macquarie Bank which pointed out certain benefits which the Macquarie Bank proposal involved for [AXA], and which extended the 7 pm deadline for acceptance to midnight. On the same day, Mr Owen wrote to Mr Conde indicating a preparedness to sign an agreement for the sale of AXA Health to MBF that day, so long as certain conditions could be met. Mr Owen spoke to Mr Conde by telephone on the evening of 3 June, in the course of which it became clear that [AXA] would be unable to conclude an agreement with MBF. Mr Owen so informed the sub-committee at about 9.15 pm. The sub-committee then decided that [AXA] should accept the offer from Macquarie Bank.

[62] Macquarie Bank was informed of that decision. Negotiations between [AXA] and Macquarie Bank re-commenced at about 11.30 pm on 3 June 2002, an in-principle agreement was reached at about 9 am on 4 June 2002, the transaction documents were circulated for comment at about 1 pm, and the documents were executed at about 8 pm. The transaction documents so executed were the underwriting agreement, to which the parties were [AXA], Macquarie Bank, Macquarie Health Acquisitions and Macquarie Health Holdings, and an “equity sell down agreement,” to which the parties were [AXA], Macquarie Bank and Macquarie Health Acquisitions.

The underwriting agreement provided that on the completion date (30 August 2002), AXA would exchange, and Macquarie Health Acquisitions would buy, the shares in AXA Health: cl 4.1 of the underwriting agreement. In exchange for the shares in AXA Health, Macquarie Health Acquisitions would pay $57.6 million in cash to AXA and Macquarie Health Acquisitions would issue to AXA 537.4 million shares with a value of $537.4 million, totalling $595,000,000: cl 4.2 of the underwriting agreement. This amount was later adjusted pursuant to the agreement to $570,000,000. The underwriting agreement further provided for a put option to be granted to AXA (cl 10(a), Sch 3) and for Macquarie Bank and Macquarie Health Holdings to grant AXA a call option over their ordinary shares in Macquarie Health Acquisitions (cl 11, Sch 4). These options were only be exercised if the “vendor shares” (convertible ordinary shares in the capital of Macquarie Health Acquisitions) were converted and would expire if not exercised within 2 months of conversion or upon the exercise of the put option (whichever occurred first). The agreement further described the vendor shares, redeemable preference shares and the voting rights in Macquarie Health Acquisitions that the holder of the vendor shares would obtain. Finally, the underwriting agreement provided, inter alia, that AXA agreed to pay Macquarie Bank an “underwriting fee” of $5,000,000 on the completion date.

Also on 4 June 2002, AXA, Macquarie Bank and Macquarie Health Acquisitions executed the equity sell down agreement. The agreement enabled AXA to participate in such profit that may be made by the on-sale of AXA Health, while at the same time allowing Macquarie Bank a return on its investment. Under this agreement, AXA agreed to pay Macquarie Bank an “equity sell-down fee” of $5,000,000 in consideration for Macquarie Bank procuring Macquarie Health Acquisitions to satisfy its obligations under the agreement.

Between 4 June 2002 and 30 August 2002, the parties engaged in “intense negotiations” and entered into a number of further agreements to complete the transaction. The trial judge described the period immediately prior to the completion date (30 August 2002) as follows (at ATR 863-864 [76]-[79]; ATC 10,493-10,494 [76]-[79]):

[76] It seems that the last week before execution of the transaction documents was a very busy time for all concerned. On 25 August 2002, the parties on the BUPA side of Macquarie Bank, as it were, executed a deed to amend the equity participation agreement. In relation to

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Macquarie Bank’s shareholding in MB Health Holdings, BAPL granted to Macquarie Bank a put option and Macquarie Bank granted to BAPL a call option, the exercise of which in each case was tied to the exercise by [AXA] of its right to convert its vendor shares in Macquarie Health Acquisitions, the exercise by [AXA] of its put option over those shares, or the expiry of that put option, as the case required. On the same day, those parties executed a shareholders’ deed to regulate the operation and governance of MB Health Holdings.

[77] On 26 August 2002 [AXA], Macquarie Bank, Macquarie Health Acquisitions and Macquarie Health Holdings by deed amended the underwriting agreement. One of the amendments was to replace cl 4.1 with the following:

4.1 Exchange of Shares

(a) The parties agree that on the Completion Date, AXA will exchange and Macquarie Health Acquisitions will buy the Shares for the Purchase Price free of Encumbrances and other third party rights.

(b) Macquarie Health Acquisitions may, on Completion, direct AXA to execute an instrument of transfer of the Shares to Newco or other nominee company.

(c) Where Macquarie Health Acquisitions gives a direction in accordance with clause 4.1(b), the duly executed instruments of transfer to be delivered by AXA on Completion must be in favour of Newco or other nominee company.

On the same day, [AXA], Macquarie Bank, Macquarie Health Acquisitions and Macquarie Health Funding by deed replaced the equity sell down agreement. At least to the extent relevant for present purposes, what I have written at [74] may likewise be said about the deed of 26 August (save for the fact that “NewCo” had by then been interposed in the form of Macquarie Health Funding, and was itself a party to the deed). On the same day, [AXA], Macquarie Bank, Macquarie Health Acquisitions, Macquarie Health Holdings and the National Mutual Life Association of Australasia Ltd executed the covenant agreement. It contained a range of provisions calculated to govern the parties’ obligations in the intervening period while the commercial business of AXA Health was effectively under the control of Macquarie Bank, but might (depending on how matters turned out) ultimately be returned to [AXA]. …

[78] On 29 August 2002, Macquarie Health Acquisitions and Macquarie Health Funding entered into what was described as “Macquarie Health Acquisitions undertaking”. By it, Macquarie Health Acquisitions agreed to direct [AXA] to execute an instrument of transfer of its shares in AXA Health to Macquarie Health Funding, and agreed to pay [AXA] the purchase price for those shares. Macquarie Health Acquisitions assigned to Macquarie Health Funding certain benefits, or expected benefits, arising under detailed provisions of other instruments then executed or expected to be executed. The consideration passing from Macquarie Health Funding to Macquarie Health Acquisitions was an agreement to issue to Macquarie Health Acquisitions, upon completion under the underwriting agreement, 240,000,000 ordinary shares in Macquarie Health Funding (of a value, it seems, of $240,000,000). Macquarie Health Funding also agreed to pay to Macquarie Health Acquisitions, on the “settlement date,” the sum of $330,000,000, described as “deferred consideration.” The “settlement date” was the earlier of 2 dates, one of which was the date specified by [AXA] for the conversion of its vendor shares in Macquarie Health Acquisitions in a notice of intention to convert (if one were given) in that behalf. As will appear, the combination of these sums ($240,000,000 and $330,000,000) represented the agreed sale price of AXA Health ($570,000,000).

[79] On 29 August 2002, Macquarie Health Acquisitions and MB Health Holdings executed an agreement called “consortium acquisition agreement.” A condition precedent to the operation of that agreement was that [AXA] was no longer able to exercise the put option granted to it by MB Health Holdings in relation to its vendor shares in Macquarie Health Acquisitions. The terms of the put option were such that, if [AXA] had given a notice to convert the vendor shares into ordinary shares, it could no longer be exercised. The

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effect of these provisions was, therefore, that the giving by [AXA] of a notice of conversion in relation to the vendor shares would bring the consortium acquisition agreement into operation. Under that agreement, Macquarie Health Acquisitions agreed to sell and MB Health Holdings agreed to buy all of the issued share capital in Macquarie Health Funding.

On 30 August 2002, completion of the transaction took place. Macquarie Health Acquisitions directed AXA to execute an instrument of transfer of its shares in AXA Health to Macquarie Health Funding. The transfer occurred and Macquarie Health Acquisitions paid AXA the sum of $57,000,000 in cash and issued 513,000,000 $1 convertible preference shares to AXA. Macquarie Bank and Macquarie Health Holdings granted to AXA call options over the ordinary shares held by them in Macquarie Health Acquisitions and MB Health Holdings granted to AXA a put option over the convertible vendor shares. AXA duly paid the underwriting fee of $5,000,000 to Macquarie Bank. Macquarie Bank subscribed 57,000,000 $1 redeemable preference shares in Macquarie Health Acquisitions and paid $57,000,000 to Macquarie Health Acquisitions for that issue.

Finally, on 7 February 2003, AXA gave notice of the conversion of its vendor shares in Macquarie Health Acquisitions (effective on 28 February 2003), and further gave notice that it would exercise the call options granted by Macquarie Bank and Macquarie Health Holdings. As explained by the trial judge (at ATR 864-865 [81]; ATC 10,494 [81]):

[The conversion of AXA’s vendor shares] triggered the operation of the consortium acquisition agreement as between Macquarie Health Acquisitions and MB Health Holdings and the “Macquarie Health Acquisitions undertaking” as between Macquarie Health Acquisitions and Macquarie Health Funding. Macquarie Health Acquisitions’s shareholding in Macquarie Health Funding was acquired by MB Health Holdings for the sum of $240,000,000, and Macquarie Health Funding paid Macquarie Health Acquisitions the “deferred consideration” which, after adjustment, amounted to $317.85,000,000. In the result, Macquarie Health Acquisitions’s only asset was cash in the sum of $557.85,000,000. Macquarie Health Funding, which owned all the shares in AXA Health, was in turn owned by MB Health Holdings.

Did AXA and Macquarie Bank deal at arms length?

Legislative framework and legal principles

The assessable income of a taxpayer includes “your net capital gain (if any) for the income year”: s 102-5 of the ITAA 1997. A capital gain occurs if a CGT event happens: s 102-20 of the ITAA 1997. In the present appeal, it was common ground that CGT event A1 occurred on the disposal by AXA of its shares in AXA Health in the year ended 31 December 2002, that the disposal proceeds ($570,000,000) exceeded the cost base of the AXA Health shares and that part of the consideration for the disposal ($513,000,000) was given by way of shares in Macquarie Health Acquisitions.

Subdivision 124-M of the ITAA 1997 provides for CGT roll-over relief for shareholders in a company where the shares in one company are exchanged for shares in another company: see, in particular, s 124-780 of the ITAA 1997 and the relevant extrinsic materials (explanatory memorandum, New Business Tax System (Capital Gains Tax) Bill 1999 (Cth) at [2.1] and the Second Reading Speech to the New Business Tax System (Capital Gains Tax) Bill 1999 (Cth): Commonwealth, Parliamentary Debates, House of Representatives, 25 November 1999, 12611 (Peter Costello)).

In the present case, the trial judge concluded that AXA was permitted to defer the making of the capital gain on $513,000,000 of the capital proceeds until a later CGT event because of the “scrip-for-scrip” roll-over: s 112-105 of the ITAA 1997.

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100

101

The effect of the CGT roll-over is to permit the capital gain made on the disposal of the CGT asset (the original shares) to be deferred until disposal of the replacement shares: explanatory memorandum, New Business Tax System (Capital Gains Tax) Bill 1999 (Cth) at [2.2]. The rules for determining whether there was a “scrip-for-scrip” roll-over are set out in Subdiv 124-M of the ITAA 1997. The central provision is s 124-780. A number of conditions need to be satisfied to obtain CGT roll-over relief. Section 124-780(4) provides that additional conditions (set out in s 124-780(5)) must be satisfied “if the original interest holder and an acquiring entity did not deal with each other at arms length.”

Before turning to consider the issues on appeal, it is important to note that 2 matters were not in dispute at first instance and accordingly were not the subject of appeal. The Commissioner accepted that the relationship between AXA and Macquarie Bank was an arms length one and, further, accepted that in the broad negotiation of the terms of the transactions by which shares in AXA Health passed to Macquarie Health Funding, AXA and Macquarie Bank dealt with each other at arms length. At trial and on appeal, the only issue was whether AXA (the original interest holder) and Macquarie Bank (on behalf of Macquarie Health Funding the acquiring entity) dealt with each other “at arms length.” If they did deal at arms length, AXA was entitled to defer the capital gain to a later CGT event. If they did not, it was common ground that AXA would not be entitled to roll-over relief and would be required to include the whole of the capital gain in its assessable income in the 2002 year.

At first instance, the trial judge held that AXA and Macquarie Health Funding dealt with each other at arms length within the meaning of s 124-780(4) of the ITAA 1997. On appeal, the Commissioner submitted that the trial judge erred in his interpretation of s 124-780(4) of the ITAA 1997 and in his conclusion that AXA and Macquarie Health Funding dealt with each other at arms length. In particular, the Commissioner submitted that AXA did not deal at arms length with Macquarie Bank because “Macquarie Bank’s role in structuring the transactions so as to minimise the capital gains tax payable by AXA, meant that Macquarie Health Funding (which was a subsidiary of Macquarie Bank created for the purposes of the transactions) did not deal with AXA at arms length.” In our view, the trial judge was correct to reject that submission and appeal grounds 1-4 should be dismissed.

Any assessment of whether parties were dealing at arms length involves “an assessment [of] whether in respect of that dealing they dealt with each other as arms length parties would normally do, so that the outcome of their dealing is a matter of real bargaining”: Trustee for Estate of AW Furse No 5 Will Trust v FCT (1990) 21 ATR 1123 at 1132; 91 ATC 4007 at 4014-4015 per Hill J. The reference in Furse to “real bargaining” is significant. It focuses on actual dealing between the parties: see also Re Hains; Barnsdall v FCT (1988) 19 ATR 1352; 88 ATC 4565; 81 ALR 173. That is not surprising. It is the same mental process as that described by Griffith CJ in Spencer v Commonwealth (1907) 5 CLR 418 at 432.

The question of whether parties dealt with each other at arms length in respect of a particular dealing is one of fact in each case: Granby Pty Ltd v FCT (1995) 30 ATR 400 at 403-404; 95 ATC 4240 at 4243-4244; 129 ALR 503 at 507. What is required is that “parties to a transaction have acted severally and independently in forming their bargain”: Granby (at ATR 403-404; ATC 4243-4244; ALR 507). Put another way, it requires consideration of how “unrelated parties, each acting in his or her own best interest, would carry out a particular transaction”: Australian Trade Commission v WA Meat Exports Pty Ltd (1987) 7 AAR 248 at 252; 75 ALR 287 at 291.

Consistent with those principles, there is no presumption that parties at arms length

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dealt with each other at arms length: Hains and Furse (at ATR 1132; ATC 4014-4015). Parties may be at arms length generally yet not deal with each other at arms length in respect of a particular matter: Re RAL and FCT (2002) 50 ATR 1076 at 1094-1095 [45]-[51]; 2002 ATC 109 at 124-126 [45]-[51]. So, for example, even where parties to a transaction are at arms length, they will not “be dealing with each other at arms length in a transaction in which they collude to achieve a particular result, or in which one of the parties submits the exercise of its will to the discretion of the other, perhaps, to promote the interests of the other”: Granby (at ATR 403-404; ATC 4243-4244; ALR 507).

Similarly, where one party to a transaction seeks only an overall result and is indifferent to the outcome of a particular aspect on which the statute focuses, the parties will be found not to have dealt with each other at arms length on that particular aspect: Collis v FCT (1996) 33 ATR 438 at 443; 96 ATC 4831 at 4837. In Collis, there was a question as to whether a vendor (the taxpayer) and purchaser of land had dealt at arms length in connection with the signing of 2 contracts of sale in relation to 4 parcels of land which had been sold at auction in a single bid. The purchaser who made the single bid for all blocks did not inquire as to why the contracts were apportioned between the blocks in the manner proposed by the taxpayer. Jenkinson J considered that this failure to inquire suggested “indifference” on the part of the purchaser such as to indicate that the dealing was not at arms length. The taxpayer in Collis argued that not all arms length dealings involve a discussion or inquiry as to price (using an analogy of purchasing items of stock in a food store) and that the absence of such discussions or inquiries did not suggest indifference by the taxpayer. His Honour rejected that submission, noting that (at ATR 443; ATC 4837): “A parcel of land is not ordinarily dealt with in commerce as is a can of beans in a food store.”

In Baxter v FCT (2002) 51 ATR 209; 2002 ATC 4917; 196 ALR 519, a sales tax case, Gyles J held that a lease devised in order to obtain a revenue advantage did not make it a non-arms length transaction, “no matter how widely that concept is construed” (at [38]). (Baxter was considered the “most obviously helpful” by the trial judge when determining whether the transaction was an arms length one: see (at ATR 873-874 [105]; ATC 10,503 [105]) of the trial judge’s reasons for decision).

In this context, one further matter should be noted. At first instance, the Commissioner submitted that Macquarie Bank and AXA “colluded” to achieve the purpose of minimising tax independently of, and in addition to, the commercial purposes they were pursuing. The Commissioner placed particular reliance on ACI Operations Pty Ltd v Berri Ltd (2005) 15 VR 312 and Granby (at ATR 403-404; ATC 4243-4244; ALR 507). The trial judge rejected the submission and held that AXA and Macquarie Bank did not collude to devise a means to avoid the incidence of capital gains tax (or at all): see (at ATR 873-874 [103]; ATC 10,502 [103]) of the trial judge’s reasons for decision. On appeal, the Commissioner submitted that he did not consider it necessary to put his submission “as high as” collusion and that the situation in the present case was “where you have one party, acting not in its own self-interests but acting in the interests of the other party, design[ing] a transaction to enable the other party to avoid tax.”

Application of facts to the legal principles

As noted earlier, the Commissioner submitted that Macquarie Bank’s “overriding objective” was to structure the transaction to further the interests of AXA. In support of this submission, the Commissioner pointed to the following factual findings and conclusions:

(1) from the early stages of the bid for AXA Health, Macquarie Bank “had it in mind” to structure the bid in such a way that capital gains tax would not be payable: see [70] above;

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(2) on 17 April 2002, the AXA board discussed the capital gains tax consequences of proceeding by way of a scrip-for-scrip roll-over: see at [79] above;

(3) that “in all of the evidence in the case, no explanation for a large part of the consideration flowing to [AXA] in the form of stock, other than to take advantage of the scrip-for-scrip roll-over provisions, was proffered”: at ATR 867-868 [88]; ATC 10,497 [88] of the trial judge’s the reasons for decision;

(4) that “so far as [AXA was] concerned, more or less from the outset it was aware that the Macquarie Bank bid was structured so that capital gains tax would not arise on any resulting transaction” and that “that circumstance was recognised as an attractive feature of the bid”: at ATR 868 [90]; ATC 10,497 [90] of the trial judge’s reasons for decision; and

(5) the trial judge “consider[ed] it to be almost self-evident that Macquarie Bank’s intention was that capital gains tax not be payable by any relevant entity at any stage of the proposed transactions”: at ATR 868-869 [91]; ATC 10,497-10,498 [91] of the trial judge’s reasons for decision.

Further, the Commissioner pointed to “indicia” that supported this submission, namely each of the elements of the structure designed to achieve the scrip-for-scrip roll-over relief. Specifically, the Commissioner pointed to the existence of Macquarie Health Holdings, the vendor call option granted by Macquarie Bank to AXA over the shares in Macquarie Health Acquisitions, the call option granted by Macquarie Health Holdings to AXA over its share in Macquarie Health Acquisitions, and the put option granted by MB Health Holdings to AXA. The Commissioner submitted, citing Furse, this demonstrated there was “no real bargaining … because both parties were pushing in the same direction.”

However, AXA identified several facts and matters that indicated that both parties were acting in their own interests, or were acting “severally and independently in forming their bargain” (Granby (at ATR 403-404; ATC 4243-4244; ALR 507). These circumstances included:

(1) AXA had no input into the structure and form of the initial non-binding bid of 1 March 2002: see at [76] above;

(2) between 8 March 2002 and 29 April 2002, AXA and Macquarie Bank negotiated on the “key commercial issues” of the non-binding bid, including discussions about the amount of Macquarie Bank’s underwriting fee and the voting entitlements associated with vendor shares: see at [77]-[82] above;

(3) on 29 April 2002, at the meeting between Macquarie Bank advisory (representing AXA), Macquarie Bank PTG and BUPA, AXA expressed concern about the payment of large fees to Macquarie Bank for no apparent benefit in the sale to BUPA. At around the same time, AXA expressed concern about BUPA having a larger equity stake in the acquisition of AXA Health: see at [81] and [82] above; and

(4) on 27 May 2002, Mr Facioni presented the proposition summary to the Macquarie Bank senior executives for approval. This document outlined the transaction risks and benefits to Macquarie Bank in entering into the transaction: see at [88]-[91] above.

It was accepted by all parties that a feature of the offer put to AXA by Macquarie Bank was that it could provide AXA with the choice of obtaining scrip-for-scrip roll-over relief. It was accepted that the evidence was that Macquarie Bank perceived the availability of roll-over relief as a benefit to AXA and that it would make Macquarie Bank’s offer more attractive to AXA.

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However, it does not follow that, in making the offer with the intent to attract AXA’s acceptance, that Macquarie Bank’s structuring of the bid to obtain scrip-for-scrip roll-over relief was the “over-riding objective” or that, in making the offer, Macquarie Bank was not acting in its own interests. There were a number of factors or circumstances identified by AXA (see at [113] above) that indicated that the parties were acting severally and independently in forming their bargain. The Commissioner’s submissions ignored the benefits Macquarie Bank would obtain, and the self-interest it exercised, in the acquisition of AXA Health. Macquarie Bank structured the bid not only to obtain scrip-for-scrip roll-over relief for AXA, but also in such a way so that Macquarie Bank could and did charge an underwriting fee. Macquarie Bank further structured the bid in such a way that it would be able to sell-down its interest in the equity it had created without putting in cash up-front. As correctly identified by the trial judge, the transaction did not amount to either collusion or submission of the will of Macquarie Bank to the wishes of AXA, or vice-versa: see Granby (at ATR 403-404; ATC 4243-4244; ALR 507).

Concerning the Commissioner’s reliance on Collis, we agree with the finding of the trial judge that the circumstances of this case are different when he stated:

[104] Neither do I accept the Commissioner’s submission that the present is a stronger case than Collis for the reason that the putative disinterested party (Macquarie Bank) actively co-operated to achieve the fiscal advantage sought by the putative taxpayer [AXA]. In my view, the present is a different case from Collis. There, the parties, having made their commercial bargain on the fall of the auctioneer’s hammer, manipulated the legal expression of that bargain for fiscal purposes. That could only be done by a consensus driven either by a mutual desire to achieve those purposes or by the submission of the will of one to the wishes of the other. Here, by contrast, the corporate structure lying behind Macquarie Health Acquisitions was the doing of Macquarie Bank alone. The architecture of that structure was integral to the Macquarie Bank offer which [AXA] accepted. It truly reflected the commercial reality of what was agreed. True it is that that architecture made the Macquarie Bank bid the more attractive for [AXA], but I cannot, with respect to the Commissioner, appreciate how that circumstance made the dealing between them other than an arms length one.

AXA was motivated to sell its business. Macquarie Bank wanted to acquire and on-sell that business. That the structure through which the acquisition would be achieved contained features attractive to AXA (including the scrip-for-scrip roll-over) does not make the transaction a non-arms length transaction. Many agreements negotiated between parties at arms length involve promises that will provide a benefit to a promisee. The fact that a purchaser of an asset seeks to obtain, for its own benefit, a collateral advantage from the purchase transaction (in this case the earning of fees) over and above the acquisition of the asset, cannot, without more, lead to a conclusion that the parties to the transaction were not dealing with each other at arms length. There is no evidence that the purchase consideration did not represent the market value of the asset and the fact that the vendor (AXA) had the right to participate in any profit arising to the purchaser (Macquarie Bank) from the onward sale of the asset does not, in our view, reflect any such perception; on the contrary, it reflects the bargaining power which the vendor (AXA), acting in its own best interest, brought to bear on the overall architecture of the transaction.

The trial judge was correct to conclude that the fact the transaction was devised to obtain a revenue advantage to AXA does not mean that the transaction was a non-arms length one: see Baxter. If the Commissioner’s submission was taken to its logical

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conclusion, it would be difficult to conceive of any circumstances in which parties to an arrangement under which roll-over relief is provided could to be said to be an arms length transaction.

Finally, we consider there may be real risks in approaching the question of whether 2 parties are dealing with each other at arms length by “dissecting” the dealing into segments or aspects and submitting that the parties “colluded” or “yielded judgment” one to the other on some aspect of the dealing in the manner contended for by the Commissioner. As the facts of this case demonstrate, one party can frame an offer in terms that it knows will attract the other party. There may be little debate between them about the terms (or some of the terms) yet the parties will still have dealt with each other at arms length. If, however, the dealings are dissected, it may be thought to lead to the result that if A offers B a term that it knows will attract B, A has somehow yielded its freedom of bargaining power to B when, in fact, the contrary is the position – A has exercised its freedom of bargaining power with a view to attracting acceptance by B. In the end, what must be borne steadily in mind is that any assessment of whether parties were dealing at arms length is a question of fact and that question of fact is resolved by “an assessment [of] whether in respect of that dealing they dealt with each other as arms length parties would normally do, so that the outcome of their dealing is a matter of real bargaining”: Furse (at ATR 1132; ATC 4014-4015) per Hill J. “Dissecting” the dealing into segments may not assist that inquiry. But that is not to deny, however, the possibility that there may be one or more aspects of parties’ dealings which, on assessment, can be seen not to have been a dealing where the parties dealt with each other as arms length parties would normally do: see, by way of example, Collis.

For those reasons, we reject the Commissioner’s appeal grounds 1-4. The trial judge was correct to conclude that AXA and Macquarie Bank did deal with each other at arms length.

Did AXA obtain a tax benefit within the meaning of s 177C?

The next issue raised by the Commissioner on appeal was whether AXA obtained a “tax benefit” in connection with the scheme within the meaning of s 177C of the ITAA 1936. The Commissioner submitted, in broad terms, that the trial judge erred in his interpretation of s 177(1)(a) and erred in concluding that there was no tax benefit. The Commissioner submitted that the “tax benefit” AXA obtained in connection with the “scheme” was the capital gain of $383,125,293 (being part of the capital gain on disposal of AXA’s shares in AXA Health) which allegedly would have been or might reasonably be expected to have been included in AXA’s assessable income if the scheme had not been entered into or carried out.

In FCT v Spotless Services Ltd (1996) 186 CLR 404 at 413; 34 ATR 183 at 185-186; 96 ATC 5201 at 5204-5205; 141 ALR 92 at 95, the High Court stated:

Part IVA operates where: (i) there is a “scheme” as defined in s 177A; (ii) there is a “tax benefit” which, in relation to income amounts, is identified in para (a) of s 177C(1) as an amount not included in the assessable income of the taxpayer where that amount would have been included or might reasonably be expected to have been included in that assessable income for the relevant year of income if the scheme had not been entered into or carried out; (iii) having regard to the 8 matters identified in para (b) of s 177D, it would be concluded that there was the necessary dominant purpose of enabling the taxpayer to obtain the tax benefit; and (iv) the Commissioner makes a determination that the whole or part of the amount of the tax benefit is to be included in the assessable income of the taxpayer (s 177F(1)(a)). The Commissioner then “shall take such action as he considers necessary to give effect to that determination” (s 177F(1)). (Citations omitted.)

The Commissioner identified the scheme as comprising:

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(a) establishing the corporate structure to acquire AXA Health from [AXA] and in particular:

(i) the incorporation of Macquarie Health Funding as a wholly owned subsidiary of Macquarie Health Acquisitions;

(ii) the incorporation of Macquarie Health Acquisitions as a subsidiary of Macquarie Bank (which owned 99 $1 shares), with one share being owned by Macquarie Health Holdings; and

(iii) the incorporation of Macquarie Health Holdings as a subsidiary of Macquarie Bank (which owned 99 $1 shares), which one share being owned by BDW [Nominees Pty Ltd];

(b) the incorporation of MB Health Holdings as a special purpose company jointly owned as to 50% by Macquarie Bank and as to 50% by BUPA, through BAPL;

(c) issuing [AXA] with a replacement interest in Macquarie Health Acquisitions on the disposal of the shares to Macquarie Health Funding;

(d) attaching special rights to the vendor shares so that the replacement interest was not a significant stake in Macquarie Health Acquisitions thereby enabling [AXA] to make the choice unilaterally to obtain the roll-over;

(e) the agreements by and under which the vendor shares were created and issued by Macquarie Health Acquisitions to [AXA];

(f) all of the agreements and steps taken up to and on 28 February 2003 to complete the sale of AXA Health to MB Health Holdings;

(g) [AXA] purportedly choosing to obtain the roll-over; and

(h) The relevant scheme was entered into or carried out by one or more of [AXA], Macquarie Health Funding, Macquarie Health Acquisitions, Macquarie Health Holdings, MB Health Holdings, Macquarie Bank and their legal and taxation advisors, with the requisite purpose.

Neither the existence nor the identification of the “scheme” for the purposes of s 177A was in dispute. However, 3 matters must be noted. First, the reference to “all of the agreements” in para (f) is a reference to “all agreements that [were] in evidence before the court”: see (at ATR 875 [107]; ATC 10,503-10,505 [107]) of the trial judge’s reasons for decision. Secondly, the reference in para (h) does not include BUPA. Counsel for AXA informed the court that before the trial judge the relevant parties in para (h) were AXA and Macquarie Bank. Finally, the scheme was defined broadly and the Commissioner eschewed reliance on any other or narrower scheme: see at ATR 876-878 [110]-[113]; ATC 10,504-10,506 [110]-[113] of the trial judge’s reasons for decision.

Identification of the alternative postulate

Relevant legal principles

The starting point in any consideration of s 177C must be the whole of Pt IVA of the ITAA 1936. No one provision can be viewed in isolation: FCT v Hart (2004) 217 CLR 216 at 232-234 [37]; 55 ATR 712 at 722-723 [37]; 78 ALJR 875 at 882-884 [37]; 2004 ATC 4599 at 4607-4609 [37]; 206 ALR 207 at 217-218 [37] per Gummow and Hayne JJ.

Section 177C(1) provides:

(1) Subject to this section, a reference in this Part to the obtaining by a taxpayer of a tax benefit in connection with a scheme shall be read as a reference to:

(a) an amount not being included in the assessable income of the taxpayer of a year of income where that amount would have been included, or might reasonably be expected to have been included, in the assessable income of the taxpayer of that year of income if the scheme had not been entered into or carried out; or

(b) a deduction being allowable to the taxpayer in relation to a year of income where the

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whole or a part of that deduction would not have been allowable, or might reasonably be expected not to have been allowable, to the taxpayer in relation to that year of income if the scheme had not been entered into or carried out; or

… and, for the purposes of this Part, the amount of the tax benefit shall be taken to be:

(d) in a case to which paragraph (b) applies – the amount of the whole of the deduction or of the part of the deduction, as the case may be, referred to in that paragraph.

Section 177C (read with the other provisions in Pt IVA) identifies that it is an “objective fact” whether a taxpayer obtained a tax benefit in relation to a scheme to which Pt IVA applies: FCT v Peabody (1994) 181 CLR 359 at 382; 28 ATR 344 at 351; 68 ALJR 680 at 684-685; 94 ATC 4663 at 4669-4670; 123 ALR 451 at 458-459; Hart (at CLR 232-234 [37]; ATR 722-723 [37]; ALJR 882-884 [37]; ATC 4607-4609 [37]; ALR 217-218 [37]); FCT v Lenzo (2008) 167 FCR 255 at 277 [119]; 71 ATR 511 at 532-533 [119]; 2008 ATC 20-014 at 8166 [119]; 247 ALR 242 at 263 [119]; citing FCT v Mochkin (2003) 127 FCR 185 at 194 [26]; 52 ATR 198 at 205 [26]; 2003 ATC 4272 at 4278 [26].

In the case of an amount being included in the assessable income of a taxpayer, s 177C(1)(a) provides that it is an objective inquiry as to what would have been included or might reasonably be expected to have been included in the assessable income had the “scheme” not been entered into or carried out: Epov v FCT (2007) 65 ATR 399 at 412 [62]; 2007 ATC 4092 at 4102 [62] and Peabody (at CLR 385-386; ATR 353-354; ALJR 686-687; ATC 4671-4672; ALR 461-462).

The legislation requires a comparison between the relevant scheme and an alternative postulate, or counterfactual: Hart (at CLR 243-244 [66]; ATR 730 [66]; ALJR 889 [66]; ATC 4614 [66]; ALR 226 [66]).

The alternative postulate requires a “prediction as to events which would have taken place if the relevant scheme had not been entered into or carried out and that prediction must be sufficiently reliable for it to be regarded as reasonable” (emphasis added). “A reasonable expectation requires more than a possibility”: Lenzo (at FCR 278 [122]; ATR 533 [122]; ATC 8167 [122]; ALR 264 [122]); citing Peabody (at CLR 385; ATR 353; ALJR 686; ATC 4671; ALR 461). The question posed by s 177C(1) is answered on the assumption that the scheme had not been entered into or carried out: Lenzo (at FCR 277-278 [121]; ATR 533 [121]; ATC 8167 [121]; ALR 263-264 [121]).

In its notice of contention, AXA submitted that any alternative postulate could not include a direct sale to MB Health Holdings, as the scheme included the incorporation of MB Health Holdings and if the scheme had not been entered into, MB Health Holdings would never have been incorporated to allow a direct acquisition. AXA relied on the statement of Sackville J in Lenzo (at FCR 281 [136]; ATR 536 [136]; ATC 8169 [136]; ALR 266 [136]) that s 177C required the “entirety of the scheme to be ignored.”

However, contrary to AXA’s submissions, that is not the entire question posed by s 177C. The rest of the question involves the objective inquiry of predicting the particular activity or the events that would have, or might reasonably be expected to have, taken place in the absence of the scheme: Lenzo (at FCR 279 [128]; ATR 534 [128]; ATC 8,168 [128]; ALR 265 [128]); Peabody (at CLR 385; ATR 353; ALJR 686; ATC 4671; ALR 461) and FCT v Trail Bros Steel and Plastics Pty Ltd (2010) 186 FCR 410 at 418 [28]; 2010 ATC 198 at 11,216 [28]; 272 ALR 40 at 47 [28]; 79 ATR 780 at 789 [28]. The particular activity or the events that would have, or might reasonably be expected to have, taken place in the absence of the scheme and which are identified as a

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result of the objective inquiry are not confined or defined by the scheme. As the High Court has said, “scheme” is a word of wide import: Peabody (at CLR 383; ATR 351-352; ALJR 685; ATC 4670; ALR 459-460); Hart (at CLR 259-260 [87]; ATR 741 [87]; ALJR 899 [87]; ATC 4624-4625 [87]; ALR 238 [87]).

The express words of s 177C require a prediction about what would happen or might reasonably be expected to happen. It is necessarily a hypothetical analysis. But it is a hypothetical analysis directed at ascertaining what particular activity would have been (or might reasonably have been) undertaken if the scheme was not entered into. The “integers” comprising the scheme that are relevant to that objective inquiry are not limited and “may not always permit the precise identification of … all the integers of a particular ‘scheme’”: Hart (at CLR 236 [43]; ATR 724-725 [43]; ALJR 885 [43]; ATC 4610 [43]; ALR 220 [43]) and Trail Bros (at FCR 418-419 [30]; ATR 789 [30]; ATC 11,216-11,217 [30]; ALR 48 [30]).

It is contrary to the express words of s 177C (including s 177C(2)), its context and its purpose to exclude particular integers from a prediction about what would happen or might reasonably be expected to happen. Put another way, absent particular integers, the inquiry would not be an objective inquiry as required by s 177C but a prediction of what would happen or might happen having regard to only a sub-set of the integers available to a taxpayer: see Trail Bros (at FCR 419 [31]; ATR 789 [31]; ATC 11,217 [31]; ALR 48 [31]).

Finally, the onus is on the taxpayer (AXA) to establish that he or she did not obtain a tax benefit in connection with the scheme; that is the taxpayer needs to show that the amount would not have been included, or might not reasonably be expected to have been included, in its assessable income if the scheme had not been entered into or carried out: ss 14ZZK and 14ZZO of the Taxation Administration Act 1953 (Cth); McAndrew v FCT (1956) 98 CLR 263 at 268-269; [1956] ALR 1008 at 1009-1010; Gauci v FCT (1975) 135 CLR 81 at 89; 5 ATR 672 at 676-677; 50 ALJR 358 at 361; 34 LGRA 321 at 326; 75 ATC 4257 at 4261; 8 ALR 155 at 160; McCormack v FCT (1979) 143 CLR 284 at 303, 306 and 323; 9 ATR 610 at 622, 624 and 635-636; 53 ALJR 436 at 443, 444 and 451; 79 ATC 4111 at 4121, 4123 and 4132-4133; 23 ALR 583 at 597-598, 599-600 and 614; FCT v Dalco (1990) 168 CLR 614 at 620 and 623-625; 20 ATR 1370 at 1372 and 1374-1376; 64 ALJR 166 at 168 and 169-170; 90 ATC 4088 at 4090-4091 and 4092-4094; 90 ALR 341 at 343-344 and 345-347 and Lenzo (at FCR 278-279 [125]; ATR 523-524 [125]; ATC 8167 [125]; ALR 264 [125]).

Analysis

At first instance, the Commissioner relied on 2 alternative postulates as to what would or might reasonably be expected to have occurred had the scheme not been entered into. The first was that if AXA had not entered into the scheme, it would have or might reasonably be expected to have disposed of AXA Health directly to MB Health Holdings. The second was that if AXA had not entered into the scheme, AXA would or might reasonably be expected to have disposed of AXA Health in the same way as it did (that is, to Macquarie Health Acquisitions) but with Macquarie Bank holding 100% of Macquarie Health Acquisitions.

On appeal, the Commissioner only relied on the first alternative postulate. The trial judge held that having regard to the Commissioner’s identification of the scheme (see at [123] above), the time for assessing any alternative postulate must be at the time that AXA decided to enter into the scheme, being 3 June 2002 “or some other point in time thereabouts when Macquarie Bank and the BUPA interests had executed the equity

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participation agreement but before the execution of the underwriting agreement.” After considering the evidence before him, the trial judge rejected the alternative postulate, stating:

The same conclusion cannot, in my view, be reached with respect to the position which Macquarie Bank would occupy in its relations with the applicant, if it be assumed that there was to be a direct sale to MB Health Holdings. As I have pointed out above, it must be here assumed that there would have been no underwriting agreement. Thus Macquarie Bank would have foregone the underwriting fee of $5,000,000. Neither would the equity sell down agreement have made any sense under a direct sale scenario. There would, therefore, have been no equity sell down fee of $5,000,000. Thus Macquarie Bank itself would have been $10,000,000 the worse off for the absence of the mechanism by which AXA Health was sold indirectly to MB Health Holdings. Mr Facioni was adamant that Macquarie Bank would never have made itself part of a direct acquisition of AXA Health by MB Health Holdings for the reason (at least) that it would not then derive this fee income. Although his apprehension that a direct sale would have denied Macquarie Bank the prospect (which existed on 3 June 2002) of profiting from the on-sale of its interest in MB Health Holdings is not, I have found, a relevant point of difference between the 2 scenarios, I accept what he said about the loss of the fees to which I have referred. I therefore consider it to be outside the range of reasonable expectation that, if AXA Health had not been sold in the way that it was, it would have been sold directly by the applicant to MB Health Holdings at the same price.

The Commissioner submitted that the words “might reasonably be expected to have been included” in s 177C(1)(a), when considered in light of the object and purpose of Pt IVA, set a “relatively low hurdle” which provided the gateway for the other provisions in Pt IVA to operate. The Commissioner submitted the trial judge erred in:

(1) not treating it “as a given” that AXA would have (or might reasonably be expected to have) disposed of its shares in AXA Health, and that MB Health Holdings would have (or might reasonably be expected to have) acquired the shares in AXA Health, if the scheme had not been carried out;

(2) testing the Commissioner’s alternative postulate in such a detailed and exacting manner;

(3) relying on “the subjective evidence of witnesses as to what they thought would have occurred if the scheme had not been entered into or carried out”;

(4) failing to consider “the usual or conventional way to structure the transaction and use this as the alternative postulate”;

(5) failing to have regard to the putative purpose of the scheme in considering whether the amount would have been included, or might reasonably be expected to have been included, in the assessable income AXA absent the scheme; and

(6) in the alternative, rejecting the alternative postulate on the basis that a direct sale from AXA to MB Health Holdings “essentially on the basis” that Macquarie Bank would not have agreed to such a transaction because it would have deprived it of its opportunity to earn its fees.

In reaching his conclusion that the Commissioner’s alternative postulate should be rejected, the trial judge cited with approval the evidence of Mr Facioni and then addressed the alternative postulate as follows (at ATR 880-881 [122]-[123]; ATC 10,508-10,509 [122]-[123]):

[122] In his affidavit sworn on 8 December 2008, Mr Facioni said:

In the course of preparing this affidavit I have become aware that the [Commissioner] has suggested that if [AXA] had not sold AXA Health to Macquarie Health Acquisitions, it would have sold AXA Health directly to MB Health Holdings. That

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suggestion is incorrect. The transaction with [AXA] to purchase AXA Health had been originated, structured, negotiated and executed by Macquarie Bank. MB Health Holdings, BUPA and BAPL were participants in the transaction, with Macquarie Bank as the overall transaction sponsor. Macquarie Bank stood to receive certain financial benefits for arranging and leading the transaction and for assuming certain material risks (financial and reputational) and devoting significant resources throughout the course of the transaction. At no time was MB Health Holdings in a position independently to offer to acquire AXA Health and, as a 50 per cent shareholder in MB Health Holdings with significant commercial benefit at stake, Macquarie Bank would not have permitted such a transaction to occur.

Objection was taken to the final sentence in that extract. I deferred my ruling on that objection pending Mr Facioni being asked in chief what was the basis for the statement contained in that sentence. He was so asked, and responded as follows:

I was the transaction leader, so I was directing the transaction on behalf of [Macquarie Bank] and I was reporting through to [Macquarie Bank’s] executive committee and ultimately board of directors. The transaction had been arranged in a way that [Macquarie Bank] stood to make quite significant economic benefits by virtue of how the transaction was anticipated to proceed; that is, AXA Health to be acquired by [Macquarie Bank] and then on-sold to a consortium. That was the nature of the transaction that we structured. That was how [Macquarie Bank] stood to make an economic benefit. If [Macquarie Bank] were to be bypassed in that sequence, it would sacrifice quite significant fees and it wasn’t in its interests for that to occur. So [Macquarie Bank] was highly incentivised to ensure that the transaction proceeded along those lines. I guess, further to that, MB Health Holdings itself had no resources, had no employees, had no financial resources, and was only able to ultimately acquire AXA Health through the work that [Macquarie Bank] and [Macquarie Bank’s] executives – being myself and the team – were conducting.

On the strength of that evidence, counsel for the Commissioner did not pursue their objection. Under cross-examination, Mr Facioni confirmed that the transactions which Macquarie Bank negotiated with the applicant were separate from those which it negotiated with BUPA. He agreed that the “significant commercial benefit” to which he referred in the final sentence in the passage from his evidence set out above was the selldown fee of $5,000,000 provided for in the equity sell down agreement and the underwriting fee of $5,000,000 provided for in the underwriting agreement, adding “plus also any profits that [Macquarie Bank] could make through an on-sale.” He was challenged about that latter aspect, and explained that, as at the time when the underwriting agreement was executed with the applicant on 4 June 2002, Macquarie Bank had obtained a commitment from BUPA that it (or presumably BAPL) would take 100% of AXA Health if MB Health Holdings were not able in the meantime to sell it to third parties at a profit. It was only later, when no such third parties could be found, that it was agreed as between Macquarie Bank and BUPA that the latter would assume complete ownership of MB Health Holdings (and, presumptively, of AXA Health).

[123] I consider that the question whether it might reasonably be expected that MB Health Holdings would have made an offer to buy AXA Health directly from the applicant must be asked, notionally, at 3 June 2002, or some other point in time thereabouts when Macquarie Bank and the BUPA interests had executed the equity participation agreement but before the execution of the underwriting agreement. It was the latter that primarily set up the structure that was employed for the sale of AXA Health, a structure that could not be described as a direct sale from the applicant to MB Health Holdings. Put another way, the execution of the underwriting agreement necessary destroyed any prospect of a direct sale, thereby excluding it from the range of outcomes that might reasonably be expected to have occurred. (Emphasis added.)

The Commissioner submitted that Mr Facioni’s evidence was “speculative” as it concerned the subjective views of participants as to what would or would not have

216 FEDERAL COURT OF AUSTRALIA [(2010)

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occurred absent the scheme. As noted earlier, the inquiry is based on objective facts (see at [126] above). However, AXA was entitled (as it did) to lead evidence to discharge its onus of proof. As Sackville J said in Lenzo, the taxpayer may lead evidence that the taxpayer would have undertaken a particular activity, or adopted a particular course, in lieu of the scheme. It is also conceivable that a taxpayer may not lead positive evidence of an alternative postulate because, for example, the result of any objective inquiry of the alternative postulate is inevitable. In the end, the court will decide what would have been done, or might reasonably be expected to have been done, in lieu of the scheme having regard to all of the evidence that is led. If a taxpayer has given evidence of what he or she would have done but for entering the scheme, that evidence will be relevant and useful to the extent to which it reveals facts or matters that bear upon the objective determination of the alternative postulate.

As Greenwood J stated in McCutcheon v FCT (2008) 168 FCR 149; 69 ATR 607; 2008 ATC 20-009:

[37] It is perfectly clear that a deponent in seeking to demonstrate (and discharge the onus of proof) that an assessment is excessive having regard to a prediction as to whether an amount might reasonably have been included in the assessable income of the taxpayer, cannot simply give evidence that the answer is to be found in the deponent speculating as to what he or she would or would not have done in the absence of the scheme: WD & HO Wills (Australia) Pty Ltd v FCT (1996) 65 FCR 298. The Commissioner accepted in the course of argument on the appeal that it is perfectly proper for a deponent in the position of Mr McCutcheon to say in evidence that the trustee (controlled by the taxpayers) would not have made distributions of the amounts postulated by the Commissioner to the taxpayers, provided the foundation for that observation or conclusion is given in evidence. In other words, Mr McCutcheon might have said that “the trustee would never have distributed such a substantial portion to either my wife or I” because (or for that reason that) and then identify factual circumstances which support the proposition. The vice said to exist in Mr McCutcheon’s evidence is that it is simply speculative evidence on the ultimate question unsupported by any evidence of material facts from which the conclusion Mr McCutcheon contends for could be drawn.

…

[39] It seems to me that the tribunal is entitled to receive into evidence the statement objected to by the respondent provided foundation facts are given in evidence which support what would otherwise be a bald speculative statement. Those foundation facts would in the ordinary course of events be detailed and comprehensive and seek to explain why the prediction could not reasonably be entertained in the context of a full understanding of the matrix of fact. Such an approach would be consistent with principle and enable the taxpayer to state a position derived from a factual foundation. …

…

[45] The tribunal also concluded that it was a matter for the Commissioner to demonstrate to the tribunal that a basis for sufficiently reliable prediction subsisted once the appellants put the determination and assessments in issue. There is no doubt that the onus and burden of proof falls upon the appellants to demonstrate that the assessment issued to each taxpayer is excessive. That necessarily involves each taxpayer adducing evidence which would discharge the onus of demonstrating that the Commissioner’s prediction or hypothesis was not sufficiently reliable for it to be regarded as reasonable. The appellants sought to do that by reliance upon the history of distributions.

The objective facts before the trial judge were that the underwriting agreement (see at [94] above) and the equity sell down agreement (see at [95] above) would not have been entered into had the scheme not been carried out and the fees payable to Macquarie Bank under those agreements would have been lost. These objective facts were identified by Mr Facioni and accepted by the trial judge thereby discharging AXA’s onus of

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demonstrating that the Commissioner’s alternative postulate “was not sufficiently reliable for it to be regarded as reasonable”: McCutcheon. The trial judge was entitled to have regard to and rely upon the evidence of Mr Facioni.

The Commissioner’s submission that it was a “given” that a direct sale from AXA to MB Health Holdings would have taken place absent the scheme is contrary to the evidence of Mr Facioni and ignores the significance of the fees that were imposed under the underwriting agreement and the equity sell down agreement (see at [136] and [138] above). The contention by the Commissioner that there was “no good reason why these fees … could not have been charged by Macquarie Bank in connection with a direct sale from AXA to MB Health Holdings” was similarly contrary to the evidence of Mr Facioni that was accepted by the trial judge. Further, although there cross-examination at first instance of Mr Penn and Mr Owen about the nature of the fee (specifically whether the fee was a “structuring fee” or otherwise), no witnesses were cross-examined on whether there would have been a fee charged by Macquarie Bank in any event with a direct sale from AXA to MB Health Holdings.

Similarly, the Commissioner’s submission that the trial judge erred in failing to consider “the usual or conventional way to structure the transaction (that is, a direct sale from AXA to MB Health Holdings) and use this as the alternative postulate” and that “the facts of the transaction themselves yielded up that alternative postulate” must also be rejected. The evidence accepted by the trial judge demonstrated that a direct sale of the shares in AXA Health from AXA to MB Health Holdings would not have (or would not reasonably be expected to have) occurred because it would have, inter alia, denied Macquarie Bank its fees. The facts did not support the Commissioner’s alternative postulate.

The Commissioner further submitted that the trial judge erred in testing the alternative postulate in such a detailed and exacting matter. The Commissioner submitted the trial judge “in effect approached the question on the basis of what would have occurred if the scheme had not been entered into or carried out,” rather than a more “conceptual inquiry” about what might reasonably be expected to have occurred had the scheme not been entered into or carried out. This submission must be rejected. As noted in Lenzo and Peabody, a reasonable expectation requires more than a possibility. The trial judge’s evaluation of the evidence to determine what would or might reasonably be expected to have taken place in the absence of the scheme was consistent with authority and no error has been demonstrated.

Finally, the Commissioner submitted that the trial judge erred in failing to consider the “putative purpose” of the scheme. The submission is without foundation and must be rejected. First, there was no factual finding by the trial judge that the “putative purpose” of the scheme was to attract the benefit of the scrip-for-scrip roll-over relief. Secondly, counsel for the Commissioner conceded that this submission contradicted his earlier submission concerning the use of subjective evidence: see at [139]-[140] above. As a result, the Commissioner stated that this was an alternative submission. Looking to the “putative purpose” of the scheme is not something contemplated by s 177C(1)(a) and is contrary to the notion that the inquiry be one based on objective fact: Epov (at ATR 412 [62]; ATC 4102 [62]) and Peabody (at CLR 385-386; ATR 353-354; ALJR 686-687; ATC 4671-4672; ALR 461-462).

One final matter should be noted. In our view, having regard to the evidence before the trial judge, it might reasonably be expected that, had the scheme not been entered into or carried out, a direct sale to MBF would have occurred. That was the only other offer on the table on 3 June 2002: see at [93] above. Neither party suggested this as the alternative postulate. AXA conducted the case at first instance by demonstrating that

218 FEDERAL COURT OF AUSTRALIA [(2010)

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144

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there would have been no sale to MB Health Holdings, as that was what was the alternative postulate identified by the Commissioner. AXA did not propose or pursue another alternative postulate and, in particular, did not pursue an alternative postulate that there would have been a direct sale to MBF. On appeal, AXA submitted that it was “content” for a direct sale to MBF to be the alternative postulate. The Commissioner opposed this approach and submitted that the court should not find the alternative postulate of a direct sale to MBF because “it was not the subject of questioning of witnesses and … therefore the evidence is incomplete on that issue.” We reject the Commissioner’s submission. Both parties referred the court to evidence that suggested MBF was a likely buyer, indeed largely the preferred buyer, for AXA Health: see, for example, at [63]-[66], [68], [74], [87] and [93] above. As noted earlier, it was the only other offer on the table on 3 June 2002. The difficulty for the Commissioner was that if a direct sale to MBF was the alternative postulate, there would be no tax benefit within the meaning of s 177C(1)(a) because AXA would not have generated a capital gain but rather a profit in the hands of AXA Health. Why? Because MBF wanted to acquire the business and not the shares.

The finding that it might reasonably be expected that the alternative postulate was a direct sale to MBF is a further example of the difficulties which now arise in litigation concerning Pt IVA where the focus is on the “scheme” and the “alternative postulate” identified by the parties. Of course, this is a direct result of the adversarial process. The problem is that it does run the risk of creating considerable artificiality often divorced from commercial reality.

For these reasons, the Commissioner’s appeal grounds concerning the tax benefit must be rejected. The trial judge was correct to conclude that there was no tax benefit. Having concluded that there was no tax benefit, it is unnecessary to consider the submissions concerning s 177C(2)(a), s 177D(b) and penalties.

Solicitor for the appellant: Australian Government Solicitor.

Solicitors for the respondent: Mallesons Stephen Jaques.

KIRK WILSON

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FinalOnlinePDF-2012Reprint.pdf

AustrAliAn Guide to leGAl AustrAliAn CitAtion Aust

AustrAliAn Guide to Guide to leGAl CitA

AustrAliAn to leGAl CitAtion

Guide to leGAl CitAtion

AustrAliAn Guide to leGAl CitAtion

Third Edition

AGLC3 - Front Cover 4 (MJ) - CS4.indd 1 21/04/2010 12:32:24 PM

Melbourne University Law Review Association Inc

in collaboration with

Melbourne Journal of International Law Inc

Melbourne

2010

AUSTRALIAN GUIDE

TO LEGAL CITATION Third Edition

Published and distributed by

the Melbourne University Law Review Association Inc

in collaboration with the Melbourne Journal of International Law Inc

National Library of Australia Cataloguing-in-Publication entry

Australian guide to legal citation / Melbourne University Law Review Association Inc.,

Melbourne Journal of International Law Inc.

3rd ed.

ISBN 9780646527390 (pbk.).

Bibliography.

Includes index.

Citation of legal authorities - Australia - Handbooks, manuals, etc.

Melbourne University Law Review Association

Melbourne Journal of International Law

808.06634

First edition 1998

Second edition 2002

Third edition 2010

Reprinted 2010, 2011 (with minor corrections), 2012 (with minor corrections)

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Law Inc. This work is protected by the laws of copyright. Except for any uses permitted under the

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The Melbourne University Law Review Association and

the Melbourne Journal of International Law

gratefully acknowledge the generous support of the sponsors of

the third edition of the Australian Guide to Legal Citation.

Foreword to the Third Edition The third edition of the Australian Guide to Legal Citation (‘Guide’) deserves

celebration. The Guide is the successor to the Melbourne University Law Review Style

Guide, the bane and vade mecum of student editors for many years. The first edition of

the Guide appeared in 1998 and the second in 2002. This third edition is considerably

longer and more detailed than its predecessors, offering guidance on the citation of

new sources of law.

Until I worked on the Melbourne University Law Review as a student in the 1970s, I

was oblivious to the delights, agonies and obsessions of editorial style and citation

methods. That experience imparted enduring respect for well-tempered punctuation as

well as accurate and judicious footnoting.

It is easy to dismiss rules of punctuation and legal citation as the province of pedants

and to imply that attention to such matters privileges style over substance.

Punctuation, however, can be critical to meaning and clarity. Lynne Truss

acknowledges this significance in her charming meditation on punctuation, Eats,

Shoots and Leaves, which she dedicates:

To the memory of the striking Bolshevik printers of St Petersburg who, in 1905,

demanded to be paid the same rate for punctuation marks as for letters, and thereby

directly precipitated the first Russian Revolution. 1

As for citation, scholars have a responsibility to acknowledge the sources of their

information and ideas carefully so that they can be readily traced by their readers. In

this sense, citation practices are akin to musical scales — technical exercises that

ground scholarly sonatas.

The third edition expands and updates earlier versions of the Guide. Now legal

scholars have a stern but reliable guide to the vexing issue of the use of ellipses in

quotations, or the citation of parties’ submissions in court cases. The distinction

between em- and en-dashes is helpfully explicated. One particularly welcome change

from earlier editions is the inclusion of examples for almost all rules. The third edition

also contains a number of tables that present complex rules in a simple and accessible

manner.

This volume mirrors the increasing significance of both comparative and international

law in Australian legal scholarship. The earlier single chapter on the citation of

international materials has now become seven chapters. The international section

(Part IV) devotes considerable attention to treaties and the documents generated by

international institutions. It includes an entirely new chapter on the citation of

documents from international criminal tribunals, reflecting the astonishing growth in

the law in this area over the past decade.

1 Lynne Truss, Eats, Shoots and Leaves: The Zero Tolerance Approach to Punctuation

(Profile Books, 2003) v.

Part V introduces rules for citing legal materials from China, France, Germany,

Malaysia, Singapore and South Africa and contains extensive revisions of rules

relating to the United Kingdom and the United States. Such guidelines will enhance

the accessibility of foreign legal sources and thus gently erode Australian legal

parochialism.

The third edition is the product of intense and detailed work. It is meticulous without

being stultifying. The authors are respectful sticklers working on behalf of readers

everywhere and all Australian legal scholars will benefit from the careful scrutiny and

sensibility of the three generations of the Guide’s authors.

Sticklers unite! Like the printers of St Petersburg, the authors of this Guide take the

conventions of language and research seriously. May this compendium repay their

hard work by encouraging precision in prose and clarity in citation.

Hilary Charlesworth

Professor of Law and ARC Federation Fellow

The Australian National University

Melbourne University Law Review Editor 1979

January 2010

vii

Foreword to the First Edition Many publishers and some publications have their own Style Guides. For years, the

editors of the Melbourne University Law Review referred to the Style Guide published

by the Review’s constituent body to solve problems of how to cite materials referred to

in the articles and notes appearing in each issue. Now the Melbourne University Law

Review Association has produced an Australian Guide to Legal Citation.

The project is ambitious. As its Preface says, the Guide ‘attempts to set down and

clarify citation customs where they exist, and to determine the best practice where no

particular custom has been established’. In so doing the Association seeks to emulate

other, long established and authoritative citation guides published by university law

reviews. Of these, the ‘Bluebook’ is, perhaps, the best known. Published by a group of

law reviews led by the Harvard Law Review, The Bluebook: A Uniform System of

Citation has become the standard work in the field in the United States and has now

passed through many editions. Other university law reviews have entered the field, for

example, the University of Chicago Manual of Legal Citation and, in Canada, the

Canadian Guide to Uniform Legal Citation published by the McGill Law Journal.

Not all such works attract only praise. Judge Posner has written of the Bluebook that it

‘creates an atmosphere of formality and redundancy in which the drab, Latinate,

plethoric, euphemistic style of law reviews and judicial opinions flourishes’. 1 But this

Guide is not, and does not pretend to be a guide to legal style any more than it is a

guide to substantive law. The Guide is concerned only with how sources may be

identified. Its principles require that they be identified clearly and accurately, simply

and efficiently, and with due sensitivity. The way in which the material from those

sources is then used and presented is for the author to choose.

It is for the author to develop a style that will engage the reader. Every reader will, no

doubt, wish that the style chosen is not ‘drab, Latinate, plethoric [or] euphemistic’. If it

is the fault will lie with the author not the Guide.

Justice K M Hayne

Justice of the High Court of Australia

Melbourne University Law Review Editor 1966

Melbourne

19 March 1998

1 Richard Posner, ‘Goodbye to the Bluebook’ (1986) 53 University of Chicago Law

Review 1343, 1349.

viii

Preface to the Third Edition The third edition of the Australian Guide to Legal Citation is the product of

collaboration between the Melbourne University Law Review Association and the

Melbourne Journal of International Law. This edition marks the first time that the

Review and the Journal have worked together on the AGLC. This collaboration has

made this edition a more comprehensive, thorough and rigorous citation guide. As in

previous editions, the AGLC aims to codify and clarify Australian citation customs

where they are settled and suggests best practice where no settled custom exists.

History of the AGLC

The AGLC was first published by the Melbourne University Law Review Association

in 1998. The second edition, marking a significant revision and expansion of the

AGLC, was published in 2002. Since its first publication, the AGLC has become the

authoritative legal citation guide within Australia, used by practitioners, law students

and academics alike. It is currently prescribed by law schools and law journals around

Australia as their official legal citation guide, the list of law journals who have adopted

the AGLC reflecting the enthusiasm with which it has been received.

The Third Edition

The third edition of the AGLC marks a comprehensive restructure and revision. For

ease of use, the AGLC has been divided into six Parts, separated by tabs, to allow

readers to reach relevant rules quickly. For ease of reference, tables have also been

included where lists of information were previously provided. All examples from the

second edition have been replaced, and further examples to illustrate the possible

permutations under each rule have been added. This, along with the 14 new chapters

included, is the main reason for the increased length of the third edition.

Importantly, the general rules chapter has been expanded and reordered to improve the

flow and clarity of rules generally applicable. This has also allowed the removal of

repetition from later chapters. The Australian cases and legislation chapters have been

carefully updated in order to ensure that the AGLC remains comprehensive and current

for Australian materials. A particularly significant change has been the vastly

expanded and updated international law section (now Part IV of the AGLC) and the

addition of several new chapters for materials from foreign jurisdictions (in Part V).

Important inclusions are:

 clarified rules for subsequent references;

 rules on the use of paragraph numbers in pinpoint references for cases and secondary sources;

 a rule requiring publisher information in citations of books;

 a rule on citing definitions in legislative materials;

 revised and comprehensive rules on material from the United Nations, European supranational institutions and the World Trade Organization;

 new rules for citing international criminal tribunal decisions and decisions in investor–state disputes;

 new chapters for materials from China, Hong Kong, France, Germany, Malaysia, Singapore and South Africa; and

 a chapter providing guidance on how to cite legal materials from jurisdictions not specifically covered by the AGLC.

Acknowledgements

Members of the Melbourne University Law Review Association and the Melbourne

Journal of International Law have been involved in production of this edition of the

AGLC over the last four years. Additionally, the third edition of the AGLC has been

subject to a comprehensive external feedback process, which took place from

September to December 2009. Of course, the Review and the Journal had previously

received much feedback on the AGLC, which was also very helpful in compiling the

third edition and for which we are grateful.

We thank first and foremost the past and present members of the ‘AGLC3 Committee’

for their work in revising and expanding the AGLC: Xiu Jing Chang, James Ellis,

David Foster, Christopher Hibbard, Errol Lloyd, Luke Pallaras, Miranda Webster and

Anna Zhang. The 2008 leaders of the Committee, May-Ling Low and Sunny Leow,

deserve our gratitude for laying the groundwork for the third edition of the AGLC.

We would like to express our thanks to all those from the Melbourne Law School,

from external bodies and organisations and past Members of the Review and Journal

who took the time to provide us with feedback on an Exposure Draft of the third

edition. This process resulted in a table of over 150 pages of suggestions for

improvements to the AGLC, all of which we have carefully considered and many of

which we have gratefully adopted. Our thanks go to Elizabeth Adeney, Renée Amyot,

Alice Anderson, Adrian Bates, Laura Bellamy, Debbie Bennett, Bruce Bott, Sonia

Brownhill, Adam Bushby, Howard Choo, Philip Chung, Katherine Cooke, the Hon

Justice Clyde Croft, Danielle Davies, Michael Edwards, Stan Emmerson, Caroline

Falshaw, Angela Fassoulas, Michele Frankeni, Robin Gardiner, Andrew Godwin,

Tatum Hands, Rich Hewett, Carole L Hinchcliff, Rebecca Hughes, Tanya Josev, Chian

Kee, Dakshinee Kodituwakku, Karen Kong, Jürgen Kurtz, Sunny Leow, Jeremy

Leung, Dylan Lino, May-Ling Low, Bernard Lyons, Ian Malkin, Zach Meyers,

Andrew D Mitchell, David Morgan, Lois Nichol, Morgan Nyland, Megan O’Brien,

Ann O’Connell, Marianna Parry, Imelda Payne, Claire Riethmuller, Michelle Sanson,

Dorothy Shea, Alison Shield, Alissa Sputore, Stacey Steele, Ruth Talbot-Stokes,

Dominique Thiriet, Marcia Townsend, Kay Tucker, Tania Voon and Joseph Wenta. We

thank especially David Foster and Xiu Jing Chang, who coordinated this external

feedback process, and Ian Malkin, whose thorough, detailed and thoughtful feedback

from a teaching and learning perspective was invaluable.

We would also like to express our sincere gratitude to Members of the Review and the

Journal who, on a voluntary basis, have contributed in myriad ways to the production

of the third edition. We are very grateful to Michelle Janczarski and Jordan Wilson-

Otto for their tireless work revising the list of law report abbreviations in the

Appendix. We acknowledge in this regard the assistance of Branko Ananijevski, Ella

Biggs, Evgenia Bourova, Jeannette Chan, Olaf Ciolek, Martin Clark, David Davies,

Shane Dawson, Kylie Finnin, Brendan Fitzgerald, Katherine Gardiner, Aditi Gorur,

Liam Hickey, Rudi Kruse, Timothy Lau, Julian Law, Loretta Li, Lu Li, Amy Lim,

Elliot Luke, Christopher Lum, Yin Lin Ma, Cassandra Marsh, Courtney McLennan,

Laura Morfuni, Stephen Muirhead, Kristina Ong, Emma Poole, Mary Quinn, Claire

Roberts, Felicity Ryburn, Darryl Slabe, Julia Wang, Ingrid Weinberg and Renshao Xu.

We are also grateful to Nicholas Butera, Matthew Jaensch, Duy Nguyen and Darryl

Slabe for their assistance with the cover and layout of the AGLC. We express our

gratitude to Nirmalan Amirthanesan, Blake Ericksen, Greg Roebuck, Jenny Si and

Tessa Setiadi for their dedicated administrative work in facilitating publication.

We thank all past and present Members of the Review and the Journal, and others, who

participated in proofreading the final drafts of the AGLC: Claire Agius, Daniel Allman,

Genevieve Bourke, Alex Bowen, Nicholas Butera, Xiu Jing Chang, Martin Clark,

Andrew Currie, Shane Dawson, Leah Deery, James Ellis, Tim Farhall, Brendan

Fitzgerald, David Foster, Simon G Frauenfelder, Katherine Gardiner, Aditi Gorur,

Christopher Hibbard, Martin Ivanovski, Michelle Janczarski, Grace Jennings-Edquist,

Duncan Kauffman, James Kearney, Dakshinee Kodituwakku, Rudi Kruse, Julian Law,

Sunny Leow, Lu Li, Jessica Liang, Jian Liu, Errol Lloyd, Christopher Lum, Cassandra

Marsh, Laura Morfuni, Simin Ngan, Jack O’Connor, Kristina Ong, Mevelyn Ong,

Alexandra Phelan, Michelle Phillips, Jordina Rust, Tiong Tjin Saw, Michael Ting,

Kathryn Tomasic, Vicki Toong Zi Jun, Alexandra Tran, Christopher Tran, Julia Wang,

Katherine Wangmann, Ingrid Weinberg, Tiffany Wong, Zoe Wong, Fei Wu, Renshao

Xu, Celine Yim, Albert Yu, Sarah Zeleznikow and Suzanne Zhou. We thank especially

Luke Pallaras, Mary Quinn, Miranda Webster and Anna Zhang, whose proofreading

and hard work ensured the AGLC was completed.

We wish to acknowledge the Melbourne Law School’s continuing support of the

Review and the Journal and of the AGLC. We also wish to acknowledge the generous

support of the sponsors of the third edition of the AGLC: Arnold Bloch Leibler,

Freehills and Mallesons Stephen Jaques.

Our task in compiling the third edition of the AGLC was made infinitely easier by the

very solid base from which we started. In this regard, we acknowledge the General

Editor of the first edition, Andrew D Mitchell, and the General Editors of the second

edition, Lucy Kirwan and Jeremy Masters, as well as all those from the Review who

contributed to the publication of both previous editions. In addition, we thank David

Brennan, Howard Choo, Michael Crommelin AO, Bruce ‘Ossie’ Oswald, John Tobin

and the 2006, 2007 and 2008 Editors of the Review and the Journal for their efforts in

bringing about the successful collaboration between the Review and the Journal that

has led to this third edition.

Finally, like the General Editors of the second edition, we wish to thank all students,

practitioners, academics, judges, court officers and staff, law school administrators,

law librarians, law journal editors and others who have supported the AGLC. We look

forward to the Review and Journal receiving feedback on possible improvements to

the AGLC for its fourth edition.

Sara Dehm and David Heaton

General Editors, Australian Guide to Legal Citation (3 rd

ed)

Melbourne

March 2010

xii

How to Use This Guide The rules in the AGLC have been drafted with maximum usability in mind, and slabs

of text have been avoided where possible. However, some complexity in the rules is

inevitable due to the variety of sources cited and the precision required in legal

citation. Like most things in life, legal citation and the application of the rules in the

AGLC should be undertaken with a good measure of common sense.

Conventions Adopted in the Rules

To avoid repetition, words in the singular usually include the plural and vice versa,

except where different rules for the singular and plural are specified. Thus, ‘the

author’s name’ means the names of one or all authors (depending on the source) in

most rules. In contrast, ‘the last two authors’ in rule 1.14.2 refers to specific authors

where there are several.

Examples have also been selected to illustrate the various aspects of each rule and are

set out in the same order as these aspects are explained where possible.

Except where a rule specifies otherwise, the rule applies to text (that is, discursive text

in the body or in the footnotes of a piece) and to citations.

The most specific rule for a source should be used (for example, the Charter of the

United Nations should be cited according to rule 8.1, although it is a treaty and could

be cited applying the rules in chapter 7).

Finally, brief descriptions of cross-referenced rules (usually preceded by ‘so’ or ‘in

particular’) have been included for convenience and to highlight the reason for the

cross-reference. However, these descriptions are only summaries and do not

necessarily capture all requirements of the cross-referenced rule. The cross-referenced

rule should be consulted and applied in its entirety as appropriate.

Suggested Approach to Using the AGLC

First-time users of the AGLC are advised to read through the general rules (chapter 1).

The first time a source of a particular kind is cited, it is also advisable to read through

the chapter containing the relevant rule.

Users of previous editions will notice that some parts of the AGLC have moved. The

contents and index should be consulted when looking for a particular rule or a means

of citing a particular source. Additionally, the Quick Reference Guide at the back of

the AGLC has been updated to reflect the rules in the third edition. This provides

examples of commonly cited sources, which users familiar with the underlying rules

can employ as a model for citations.

xiii

Subsequent References

Rules regarding subsequent references have been clarified. ‘Ibid’ can now be used for

all sources, including Acts of Parliament and treaties. Rule 1.4 establishes a system for

subsequent references whereby:

 if a chapter contains a rule (generally the last rule in a chapter) on subsequent references, that rule should be followed for all materials within that chapter;

 for rules on foreign jurisdictions in Part V, subsequent references should adhere to the rule for the analogous source in Parts II–III; and

 if a chapter in Part III does not contain a rule on subsequent references, ‘above n’ should be used as described in rules 1.4.2–1.4.3.

Sources Not Included in the AGLC

Where there is no rule for a particular source in the AGLC, users should attempt to

adapt the closest fitting rule. Such citations should be guided by common sense and

the following principles (roughly in order of importance):

 clarity and accuracy — sufficient information to unambiguously identify the source and any pinpoint reference should be included;

 consistency with AGLC style and other rules — general rules should always be observed, as should common practice in identifying a certain type of source;

 pinpoint references should appear at the end of citations (and anything qualifying a pinpoint should appear immediately after the pinpoint); and

 aesthetic appeal — convoluted citations should be avoided where possible. Chapter 25 provides source-specific rules to be applied when citing judicial and

legislative materials from foreign jurisdictions that do not have their own chapter in

Part V.

In addition, when citing a source for which the AGLC does not contain a rule it may be

instructive to examine the practice of the Review and Journal in implementing these

principles. The variety of legal sources that exist invariably means that the rules in the

AGLC are constantly developed and applied by the Review and the Journal to new

situations.

Users are encouraged to inform the Review and Journal of any sources that they think

could usefully be included in future editions of the AGLC via the Suggestion Form or

via email.

Contents

PART I — GENERAL RULES

1 General Rules ...................................................................... 1 1.1 General Format of Footnotes .......................................................... 1

1.1.1 When to Footnote ................................................................. 1 1.1.2 The Position of Footnote Numbers ....................................... 2 1.1.3 Multiple Sources in Footnotes .............................................. 2 1.1.4 Full Stops at the End of Footnotes ....................................... 3 1.1.5 Pinpoint References ............................................................. 3 1.1.6 Spans of Pinpoint References .............................................. 4

1.2 Introductory Signals for Citations .................................................. 5 1.3 Sources Referring to Other Sources .............................................. 6 1.4 Subsequent References .................................................................. 7

1.4.1 Ibid ........................................................................................ 7 1.4.2 Above and Below .................................................................. 8 1.4.3 Short Titles .......................................................................... 10 1.4.4 At ........................................................................................ 11

1.5 Quotations ...................................................................................... 12 1.5.1 Short and Long Quotations ................................................. 12 1.5.2 Punctuation Introducing Quotations .................................... 13 1.5.3 Quotations within Quotations .............................................. 14 1.5.4 Punctuation within Quotations ............................................ 14 1.5.5 Capitalisation at the Start of Quotations ............................. 15 1.5.6 Ellipses ............................................................................... 16 1.5.7 Editing Quotations .............................................................. 16 1.5.8 [sic] ..................................................................................... 17 1.5.9 Emphasis and Citations in Quotations ................................ 18

1.6 Punctuation ..................................................................................... 18 1.6.1 Full Stops ............................................................................ 18 1.6.2 Commas ............................................................................. 19 1.6.3 Em-Dashes, En-Dashes, Hyphens and Slashes ................ 19 1.6.4 Quotation Marks ................................................................. 20 1.6.5 Parentheses ........................................................................ 20 1.6.6 Square Brackets ................................................................. 21

1.7 Capitalisation .................................................................................. 21 1.8 Italicisation...................................................................................... 23

1.8.1 Italicisation for Emphasis .................................................... 23 1.8.2 Italicisation of Source Titles ................................................ 23 1.8.3 Italicisation of Foreign Words ............................................. 24

1.9 Spelling and Hyphenation: Official Dictionary ............................ 24 1.10 Grammar: Official Guide ................................................................ 25 1.11 Inclusive Language ........................................................................ 25 1.12 Numbers and Currency.................................................................. 26

1.12.1 Numbers ............................................................................. 26

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1.12.2 Currency ............................................................................. 27 1.13 Dates................................................................................................ 27

1.13.1 Full Date ............................................................................. 27 1.13.2 Spans of Dates ................................................................... 28 1.13.3 Decades and Centuries ...................................................... 28

1.14 Names.............................................................................................. 28 1.14.1 General Rule ....................................................................... 28 1.14.2 Authors of Secondary Sources ........................................... 29 1.14.3 Publications Authored by or Produced on Behalf of a Body .................................................................................... 30 1.14.4 Judges ................................................................................ 31

1.15 Headings and Titles ....................................................................... 33 1.15.1 Title and Author .................................................................. 33 1.15.2 Heading Levels ................................................................... 33

1.16 Bibliographies ................................................................................ 33

PART II — DOMESTIC SOURCES

2 Cases ................................................................................ 37 2.1 Case Name ...................................................................................... 37

2.1.1 Parties’ Names: General Rule ............................................ 37 2.1.2 Business Corporations and Firms ....................................... 38 2.1.3 The Commonwealth and the States and Territories ........... 39 2.1.4 The Crown .......................................................................... 39 2.1.5 Governmental Entities, Foreign Governments and International Organisations ................................................. 39 2.1.6 Ministers and Officers of the Commonwealth, States and Territories, and Government Departments .................. 40 2.1.7 Attorneys-General and Directors of Public Prosecutions .... 41 2.1.8 Re ....................................................................................... 42 2.1.9 Ex parte .............................................................................. 42 2.1.10 ex rel ................................................................................... 43 2.1.11 v .......................................................................................... 43 2.1.12 Admiralty Cases .................................................................. 44 2.1.13 Multiple Proceedings between the Same Parties ............... 44 2.1.14 Abbreviated and Popular Case Names .............................. 45 2.1.15 Omitting the Case Name .................................................... 46

2.2 Year and Volume ............................................................................ 47 2.3 Law Report Series .......................................................................... 48

2.3.1 Authorised/Unauthorised and Generalist/Specific Report Series ...................................................................... 48 2.3.2 Abbreviations for Report Series .......................................... 49

2.4 Starting Page .................................................................................. 50 2.5 Pinpoint Reference ......................................................................... 50 2.6 Court ................................................................................................ 51 2.7 Parallel Citations ............................................................................ 52 2.8 Unreported Decisions .................................................................... 52

2.8.1 Decisions with a Medium Neutral Citation .......................... 52

xvii

2.8.2 Decisions without a Medium Neutral Citation ..................... 54 2.9 Identifying Judges and Counsel ................................................... 55

2.9.1 Identifying Judicial Officers ................................................. 55 2.9.2 Subsequent Elevation ......................................................... 57 2.9.3 Statements Made during Argument .................................... 57

2.10 Case History ................................................................................... 58 2.11 Quasi-Judicial Decisions ............................................................... 58

2.11.1 Administrative Decisions ..................................................... 58 2.11.2 Arbitrations .......................................................................... 59

2.12 Transcripts of Proceedings ........................................................... 61 2.12.1 General Rule ....................................................................... 61 2.12.2 High Court of Australia from July 2003 ............................... 61

2.13 Submissions in Cases ................................................................... 62 2.14 Subsequent References ................................................................ 62

3 Legislative Materials ........................................................ 64 3.1 Statutes (Acts of Parliament) ........................................................ 64

3.1.1 Title ..................................................................................... 64 3.1.2 Year .................................................................................... 65 3.1.3 Jurisdiction .......................................................................... 65 3.1.4 Pinpoint Reference ............................................................. 66 3.1.5 Multiple Pinpoint References .............................................. 68 3.1.6 Definitions ........................................................................... 69

3.2 Australian Constitutions ................................................................ 70 3.3 Delegated Legislation .................................................................... 71

3.3.1 General Rule ....................................................................... 71 3.3.2 Pinpoint Reference ............................................................. 71

3.4 Quasi-Legislative Materials ........................................................... 72 3.4.1 Gazettes ............................................................................. 72 3.4.2 Orders and Rulings of Government Instrumentalities and Officers (ASIC Class Orders, Taxation Rulings, etc) ... 73 3.4.3 Legislation Delegated to Non-Government Entities (ASX Listing Rules, Professional Conduct Rules, etc) ....... 73 3.4.4 Court Practice Directions and Practice Notes ..................... 74

3.5 Bills .................................................................................................. 75 3.6 Explanatory Memoranda, Statements and Notes ........................ 75 3.7 Order of Parallel Australian Statutes and Bills............................ 76 3.8 Legislative History: Amendments, Repeals and Insertions ....... 77 3.9 Subsequent References ................................................................ 78

3.9.1 Legislative Materials in Their Entirety ................................. 78 3.9.2 Individual Parts of Legislative Materials .............................. 79

PART III — SECONDARY SOURCES

4 Journal Articles ................................................................ 81 4.1 Author .............................................................................................. 81

4.1.1 Signed Articles .................................................................... 81 4.1.2 Unsigned Articles ................................................................ 82

xviii

4.2 Title .................................................................................................. 82 4.3 Year.................................................................................................. 83 4.4 Volume and Issue ........................................................................... 83 4.5 Journal ............................................................................................ 85 4.6 Starting Page .................................................................................. 85 4.7 Pinpoint Reference ......................................................................... 86 4.8 Articles Published in Parts ............................................................ 86 4.9 Articles Published in Electronic Journals ................................... 87 4.10 Symposia ........................................................................................ 88

5 Books ................................................................................ 89 5.1 Author .............................................................................................. 89

5.1.1 General Rule ....................................................................... 89 5.1.2 Editors ................................................................................. 90

5.2 Title .................................................................................................. 90 5.3 Publication Details ......................................................................... 91

5.3.1 Publisher ............................................................................. 91 5.3.2 Edition Number and Date of First Publication ..................... 92 5.3.3 Revised Editions ................................................................. 93 5.3.4 Publication Year .................................................................. 94

5.4 Pinpoint Reference ......................................................................... 94 5.4.1 General Rule ....................................................................... 94 5.4.2 Multi-Volume Books ............................................................ 95

5.5 Chapters in Edited Books .............................................................. 96 5.6 Translations .................................................................................... 97

6 Other Sources ................................................................... 99 6.1 Government Documents ................................................................ 99

6.1.1 Parliamentary Debates ....................................................... 99 6.1.2 Parliamentary Papers ......................................................... 99 6.1.3 Parliamentary Research Papers, Notes and Briefs .......... 100 6.1.4 Parliamentary Committee Reports .................................... 100 6.1.5 Bills Digests and Alert Digests .......................................... 101 6.1.6 Evidence to Parliamentary Committees ............................ 102 6.1.7 Royal Commission Reports .............................................. 102 6.1.8 Law Reform Commission Reports .................................... 103 6.1.9 Australian Constitutional Convention Debates ................. 104

6.2 Submissions to Government Inquiries, Committees and Agencies ................................................................................ 104 6.3 Legal Encyclopedias .................................................................... 105 6.4 Looseleaf Services ....................................................................... 106 6.5 Newspaper Articles ...................................................................... 107

6.5.1 Printed Newspapers ......................................................... 107 6.5.2 Unsigned and Untitled Articles .......................................... 108 6.5.3 Electronic Newspapers ..................................................... 109

6.6 Television and Radio Transcripts ............................................... 110 6.7 Films and Audiovisual Recordings ............................................ 110 6.8 Press and Media Releases .......................................................... 111

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6.9 Working Papers and Similar Documents of Various Bodies ... 112 6.10 Theses ........................................................................................... 113 6.11 Conference Papers....................................................................... 113 6.12 Speeches....................................................................................... 114 6.13 Interviews ...................................................................................... 114

6.13.1 Interviews Conducted by the Author ................................. 114 6.13.2 Interviews Not Conducted by the Author .......................... 115

6.14 Written Correspondence ............................................................. 115 6.15 Internet Materials.......................................................................... 116

6.15.1 Author ............................................................................... 117 6.15.2 Document Title .................................................................. 117 6.15.3 Full Date ........................................................................... 117 6.15.4 Website Name .................................................................. 117 6.15.5 Pinpoint Reference ........................................................... 118 6.15.6 Uniform Resource Locator (‘URL’) .................................... 118 6.15.7 Blogs and Online Forums ................................................. 119

6.16 Subsequent References .............................................................. 119

PART IV — INTERNATIONAL MATERIALS

7 Treaties ........................................................................... 121 7.1 Treaty Title .................................................................................... 121 7.2 Parties’ Names.............................................................................. 122 7.3 Date Opened for Signature or Signed and Date of Entry into Force ............................................................................ 123

7.3.1 Opened for Signature (Open Multilateral Treaties) ........... 123 7.3.2 Signed by All Parties (Closed Multilateral or Bilateral Treaties) .............................................................. 124 7.3.3 Treaties Not Yet in Force .................................................. 124

7.4 Treaty Series ................................................................................. 125 7.5 Pinpoint Reference ....................................................................... 127 7.6 Subsequent References .............................................................. 128

8 United Nations Materials ................................................ 130 8.1 Constitutive Document ................................................................ 130 8.2 Official Documents of the United Nations ................................. 130

8.2.1 Author ............................................................................... 131 8.2.2 Title ................................................................................... 132 8.2.3 Resolution or Decision Number ........................................ 132 8.2.4 Official Records ................................................................ 133 8.2.5 Committee Number ........................................................... 134 8.2.6 Session (and Part) Number .............................................. 134 8.2.7 Meeting Number ............................................................... 134 8.2.8 Agenda Item ..................................................................... 135 8.2.9 Supplement ....................................................................... 136 8.2.10 UN Document Number ..................................................... 136 8.2.11 Full Date ........................................................................... 139 8.2.12 Annex ................................................................................ 139

8.2.13 Pinpoint Reference ........................................................... 140 8.2.14 Documents of Multiple Organs ......................................... 142

8.3 UN Treaty Body Documents ........................................................ 142 8.3.1 Decisions of UN Treaty Bodies on Individual Communications ............................................... 142 8.3.2 Communications and Submissions to UN Treaty Bodies ............................................................. 143

8.4 United Nations Yearbooks ........................................................... 143 8.5 Subsequent References .............................................................. 145 8.6 Commonly Cited Documents ...................................................... 146

9 International Court of Justice and Permanent

Court of International Justice ........................................ 147 9.1 Constitutive and Basic Documents ............................................ 147 9.2 Decisions ...................................................................................... 148

9.2.1 Case Name ....................................................................... 148 9.2.2 Parties’ Names or Advisory Opinion ................................. 149 9.2.3 Phase ................................................................................ 150 9.2.4 Year .................................................................................. 151 9.2.5 Report Series and Series Letter ....................................... 152 9.2.6 Starting Page and Case Number ...................................... 152 9.2.7 Pinpoint Reference ........................................................... 153 9.2.8 Identifying Judges ............................................................. 154

9.3 Pleadings and Other Documents Originating in ICJ and PCIJ Proceedings ................................................................. 154 9.4 Unreported Materials ................................................................... 156

9.4.1 Decisions .......................................................................... 156 9.4.2 Pleadings and Other Documents ...................................... 157

9.5 Subsequent References .............................................................. 158

10 International Arbitral and Tribunal Decisions ................ 160 10.1 State–State Decisions .................................................................. 160

10.1.1 Reported Decisions .......................................................... 160 10.1.2 Unreported Decisions ....................................................... 161

10.2 Individual–State Decisions (including Investor–State Decisions) ..................................................................................... 162

10.2.1 Reported Decisions .......................................................... 162 10.2.2 Unreported Decisions ....................................................... 163

10.3 Subsequent References .............................................................. 164

11 International Criminal Tribunals and Courts .................. 166 11.1 Basic Documents ......................................................................... 166

11.1.1 Constitutive Documents .................................................... 166 11.1.2 Rules ................................................................................. 167

11.2 Cases ............................................................................................. 168 11.2.1 Parties’ Names ................................................................. 168 11.2.2 Phase ................................................................................ 169 11.2.3 Court ................................................................................. 169

xxi

11.2.4 Chamber ........................................................................... 169 11.2.5 Case Number .................................................................... 170 11.2.6 Full Date ........................................................................... 171 11.2.7 Pinpoint Reference ........................................................... 171 11.2.8 Identifying Judges ............................................................. 171

11.3 Reports of Cases .......................................................................... 172 11.4 Subsequent References .............................................................. 173

12 International Economic Materials .................................. 174 12.1 World Trade Organization ........................................................... 174

12.1.1 Constitutive and Basic Documents ................................... 174 12.1.2 Official WTO Documents .................................................. 175 12.1.3 WTO Panel, Appellate Body and Arbitration Decisions .... 177

12.2 General Agreement on Tariffs and Trade ................................... 179 12.2.1 Official GATT Documents ................................................. 179 12.2.2 GATT Panel Reports ........................................................ 180

12.3 Investment and Trade Treaties and Investor–State Arbitrations ................................................................................... 181 12.4 Subsequent References .............................................................. 181

13 European Supranational Materials ................................. 183 13.1 European Union Materials ........................................................... 183

13.1.1 Official Journal of the European Union ............................. 183 13.1.2 Constitutive Treaties of the European Union .................... 185 13.1.3 Courts of the European Union .......................................... 188

13.2 Council of Europe ........................................................................ 190 13.2.1 Basic Documents of the Council of Europe ...................... 190 13.2.2 European Court of Human Rights ..................................... 192 13.2.3 European Commission of Human Rights .......................... 194

13.3 Subsequent References .............................................................. 195

PART V — FOREIGN DOMESTIC MATERIALS

14 Canada ............................................................................ 197 14.1 Cases ............................................................................................. 197

14.1.1 General Rule ..................................................................... 197 14.1.2 Official and Unofficial Report Series ................................. 197

14.2 Legislation .................................................................................... 198 14.2.1 Title ................................................................................... 198 14.2.2 Statute Volume and Jurisdiction ....................................... 198 14.2.3 Year .................................................................................. 200 14.2.4 Chapter ............................................................................. 200 14.2.5 Pinpoint Reference ........................................................... 201

14.3 Constitutions ................................................................................ 201 14.3.1 Federal .............................................................................. 201 14.3.2 Provincial and Territorial ................................................... 202

14.4 Delegated Legislation (Regulations) .......................................... 202 14.4.1 Revised Federal Regulations ............................................ 202

xxii

14.4.2 Unrevised Federal Regulations ........................................ 202 14.4.3 Provincial and Territorial Regulations ............................... 203

14.5 Other .............................................................................................. 205

15 China ............................................................................... 206 15.1 Specific Rules for Chinese Language Materials ....................... 206 15.2 Cases ............................................................................................. 207

15.2.1 General Rule ..................................................................... 207 15.2.2 Report Series .................................................................... 208 15.2.3 Unreported Judgments ..................................................... 209

15.3 Legislative Materials .................................................................... 209 15.3.1 Chinese Legislative Acts ................................................... 209 15.3.2 Constitutions ..................................................................... 210

15.4 Chinese Language Secondary Sources ..................................... 211 15.4.1 General Rules ................................................................... 211 15.4.2 Author Names and Subsequent ‘Above n’ References .... 212

16 France ............................................................................. 214 16.1 Cases ............................................................................................. 214 16.2 Legislative Materials .................................................................... 215

16.2.1 Individual Laws ................................................................. 215 16.2.2 Codes ............................................................................... 216 16.2.3 Constitution ....................................................................... 216

17 Germany .......................................................................... 217 17.1 Cases ............................................................................................. 217 17.2 Legislative Materials .................................................................... 218

17.2.1 Individual Laws ................................................................. 218 17.2.2 Codes ............................................................................... 218 17.2.3 Constitution ....................................................................... 219

18 Hong Kong ....................................................................... 220 18.1 Cases ............................................................................................. 220 18.2 Legislative Materials .................................................................... 221

18.2.1 Principal and Delegated Legislation ................................. 221 18.2.2 Constitution ....................................................................... 221

19 Malaysia .......................................................................... 222 19.1 Cases ............................................................................................. 222

19.1.1 General Rule ..................................................................... 222 19.1.2 Report Series .................................................................... 222 19.1.3 Unreported Cases ............................................................. 223

19.2 Legislative Materials .................................................................... 223 19.2.1 Statutes and Delegated Legislation .................................. 223 19.2.2 Constitution ....................................................................... 224

20 New Zealand ................................................................... 225 20.1 Cases ............................................................................................. 225

xxiii

20.1.1 General Rule ..................................................................... 225 20.1.2 Official and Unofficial Report Series ................................. 225 20.1.3 Unreported Cases ............................................................. 225 20.1.4 Māori Land Court and Māori Appellate Court ................... 226 20.1.5 Waitangi Tribunal .............................................................. 227

20.2 Legislative Materials .................................................................... 227 20.2.1 Statutes ............................................................................. 227 20.2.2 Delegated Legislation ....................................................... 227

20.3 Other .............................................................................................. 228

21 Singapore ........................................................................ 229 21.1 Cases ............................................................................................. 229

21.1.1 General Rule ..................................................................... 229 21.1.2 Report Series .................................................................... 229 21.1.3 Unreported Cases ............................................................. 230

21.2 Legislative Materials .................................................................... 230 21.2.1 Statutes and Subsidiary Legislation .................................. 230 21.2.2 Constitutional Documents ................................................. 231

21.3 Other .............................................................................................. 232

22 South Africa .................................................................... 233 22.1 Cases ............................................................................................. 233

22.1.1 General Rule ..................................................................... 233 22.1.2 Report Series .................................................................... 234

22.2 Legislative Materials .................................................................... 235 22.2.1 Statutes and Delegated Legislation .................................. 235 22.2.2 Constitutions ..................................................................... 235

22.3 Truth and Reconciliation Commission ....................................... 236

23 United Kingdom .............................................................. 237 23.1 Cases ............................................................................................. 237

23.1.1 General Rule ..................................................................... 237 23.1.2 Modern English Reports ................................................... 237 23.1.3 Nominate Reports ............................................................. 238 23.1.4 Scottish Reports ............................................................... 239 23.1.5 Unreported Cases ............................................................. 239 23.1.6 Identifying Judicial Officers ............................................... 241

23.2 Legislation .................................................................................... 242 23.2.1 Title and Year ................................................................... 243 23.2.2 Jurisdiction ........................................................................ 243 23.2.3 Regnal Year ...................................................................... 244 23.2.4 Chapter, Act or Measure Number ..................................... 245 23.2.5 Pinpoint Reference ........................................................... 246

23.3 Delegated Legislation .................................................................. 246 23.4 Government Publications ............................................................ 247

23.4.1 Parliamentary Debates ..................................................... 247 23.4.2 Command Papers ............................................................. 248 23.4.3 Parliamentary Papers ....................................................... 248

xxiv

23.5 Other .............................................................................................. 249

24 United States of America ............................................... 250 24.1 Cases ............................................................................................. 250

24.1.1 Parties’ Names ................................................................. 250 24.1.2 Volume .............................................................................. 250 24.1.3 Report Series and Series Number .................................... 251 24.1.4 Starting Page and Pinpoint Reference ............................. 252 24.1.5 Jurisdiction and Court Name ............................................ 252 24.1.6 Year .................................................................................. 256 24.1.7 Unreported Cases ............................................................. 256 24.1.8 Identifying Judges ............................................................. 257

24.2 Legislation: Code ......................................................................... 258 24.2.1 Statute Title and Original Pinpoint .................................... 258 24.2.2 Title, Chapter or Volume Number in Code ........................ 259 24.2.3 Abbreviated Code Name .................................................. 260 24.2.4 Pinpoint Reference ........................................................... 262 24.2.5 Publisher’s Name .............................................................. 263 24.2.6 Year of Code and Supplement ......................................... 264

24.3 Legislation: Session Laws .......................................................... 265 24.3.1 Statute Title ....................................................................... 266 24.3.2 Public Law, Private Law or Chapter Number .................... 266 24.3.3 Original Pinpoint Reference .............................................. 267 24.3.4 Volume or Year ................................................................. 268 24.3.5 Abbreviated Name ............................................................ 268 24.3.6 Starting Page and Pinpoint Reference ............................. 270 24.3.7 Year .................................................................................. 270 24.3.8 Legislative History: Amendments, Repeals and Insertions .......................................................................... 271

24.4 Constitutions ................................................................................ 271 24.5 Delegated Legislation .................................................................. 272

24.5.1 Federal .............................................................................. 272 24.5.2 State ................................................................................. 272

24.6 Federal Congressional Materials ................................................ 273 24.6.1 Debates ............................................................................ 273 24.6.2 Bills and Resolutions ........................................................ 274

24.7 Restatements ................................................................................ 275 24.8 Other .............................................................................................. 276

25 Other Foreign Domestic Materials .................................. 277 25.1 Translations of Legislation and Decisions ................................ 277

25.1.1 Non-English Primary Materials Translated by Author ....... 277 25.1.2 Foreign Primary Materials Consulted in English (Published Translations) ................................................... 278

25.2 Judicial and Administrative Decisions ....................................... 280 25.3 Legislative Materials .................................................................... 281 25.4 Other Non-English Language Materials ..................................... 283

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PART VI — APPENDIX

Appendix: Law Report Abbreviations ..................................... 285

Table A: Australian Medium Neutral Unique Court

(and Tribunal) Identifiers ........................................ 316

Table B: Pinpoint Abbreviations ........................................... 319

Bibliography ............................................................................ 320

Suggestion Form ..................................................................... 321

Index ....................................................................................... 322

Quick Reference Guide ........................................................... 335

G eneral

R ules

1 General Rules

1.1 General Format of Footnotes

1.1.1 When to Footnote

Rule Footnotes should be used to: • provide authority for a proposition;

• acknowledge a source that is relevant to an argument and indicate how it is relevant (for example, to indicate that a source directly supports or directly contradicts an argument);

• provide information that enables the retrieval of relevant sources and quotations that appear in the text; and

• provide other (often tangential or extraneous) information that is not appropriate to include in the text.

Direct quotations should always be followed by a footnote unless their source is provided in full in the text.

The first citation of a source should appear in full.

Examples Some judges have argued that a presumption of advancement applies wherever there is a ‘greater prima facie probability of a beneficial interest being intended’.1

This situation is likely to occur only in the rarest of cases, since the court can always make a judgement about the relative credibility of evidence given by living parties.22

__________ 1 Wirth v Wirth (1956) 98 CLR 228, 237 (Dixon CJ). See also

Calverley v Green (1984) 155 CLR 242, 250 (Gibbs CJ). … 22 In Gissing v Gissing [1971] AC 886, 907, Lord Diplock

commented that presumptions are easily rebutted if both parties are still alive and capable of giving evidence.

2 Part I — General Rules

1.1.2 The Position of Footnote Numbers

Rule A footnote number should immediately follow the portion of text to which it is relevant. It should appear directly after any relevant punctuation (usually a full stop or a comma) other than an em-dash.

Examples The court describes the best interests of the child as the ‘paramount or pre-eminent consideration’;12 it is the ‘final determinant’ of what orders the court must make.13

Bainbridge acknowledges that ‘the tort creditor has no ability to bargain out of the default rule’ of limited liability and that the company is likely to be the cheapest cost avoider (with the ability to organise insurance or take precautions to ensure the accident is prevented).28

The Gilbert + Tobin Centre of Public Law argued that s 80.2(5) was ‘welcome because it would criminalise … incitement to violence against racial, religious, national, or political groups’34 — consistent with international human rights treaty obligations.

The Court of Appeal in Burger King Corporation v Hungry Jack’s Pty Ltd was also of the opinion that a duty of good faith should be implied in law.40

Their Honours went on to observe: The appellant has indeed behaved badly, but no worse than many of his age who have also lived as members of the Australian community all their lives but who happen to be citizens. The difference is the barest of technicalities. It is the chance result of an accident of birth, the inaction of the appellant’s parents and some contestable High Court decisions.55

1.1.3 Multiple Sources in Footnotes

Rule If a series of sources is cited within one footnote, a semicolon should be used to separate the sources. The word ‘and’ should not be used to separate the last two sources.

Examples While a traditional approach insists strictly on offer and acceptance,89 modern authorities have on occasion relaxed this requirement.90

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________________ 89 See, eg, Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256;

Gibson v Manchester City Council [1978] 2 All ER 583; MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125. [Not: … [1978] 2 All ER 583 and MacRobertson Miller …]

90 See, eg, Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153, 179–81 (Heydon JA).

1.1.4 Full Stops at the End of Footnotes

Rule A full stop (or other appropriate closing punctuation) should appear at the end of every footnote.

Examples 46 R v Gomez [1993] AC 442. 47 Ibid; R v Macleod (2001) 52 NSWLR 389. 50 But what of the second proposition, namely, that Mr Ford was

benefited by the receipt of the means of obtaining goods and services that he genuinely and subjectively desired?

1.1.5 Pinpoint References

Rule A ‘pinpoint reference’ is a reference to a specific page, paragraph, footnote or other section of a source. Pinpoint references should not be preceded by ‘at’ (except in accordance with rule 1.4.4).

A pinpoint reference to a page should appear as a number. It should not be preceded by ‘p’ or ‘pg’.

A pinpoint reference to a paragraph should appear as a number in square brackets. It should not be preceded by ‘para’.

If both a page and a paragraph are referred to, the pinpoint should appear as follows:

Page [ Paragraph ]

A pinpoint reference to a footnote or endnote within a source should include the page on and/or paragraph in which the footnote or endnote

4 Part I — General Rules

appears followed by:

n Footnote/Endnote Number

Multiple pinpoint references to the same source should be separated by commas.

Examples 57 H L A Hart, The Concept of Law (Clarendon Press, 1970) 15. 79 Cartwright v Cartwright [2007] NTSC 32 (9 May 2007) [10].

[Not: … (9 May 2007) at [10].] 92 Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd (2009) 81

IPR 1, 6 [23]. 104 Davies v Gertig [No 2] (2002) 83 SASR 521, 528 [57] n 6,

529 [64].

Note For rules on how pinpoint references involving more than a page, paragraph or footnote number (such as pinpoint references to legislation and treaties) should appear, see subsequent chapters of this Guide.

1.1.6 Spans of Pinpoint References

Rule A span of pinpoint references should be separated by a non-spaced en-dash (–).

Spans of page, paragraph and footnote pinpoint references should appear as follows:

Type of Pinpoint

Rule Examples

Pages Page – Page 431–2

Paragraphs [ Para ]–[ Para ] [57]–[63]

Pages and Paragraphs

Page – Page [ Para ]–[ Para ] 312–13 [15]–[18]

Footnotes Page / [ Para ] nn Fn – Fn 466 nn 7–8

[88] nn 113–14

23 [40] nn 22–3

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In spans of paragraphs, both paragraph numbers should appear separately, enclosed in square brackets (so their numerals should not be shortened according to rule 1.12.1 on number spans).

Examples 57 Karen J Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford University Press, 2001) 182–91.

79 City of Swan v Lehman Brothers Australia Ltd [2009] FCAFC 130 (25 September 2009) [50]–[59]. [Not: … [50–9].]

92 Wurridjal v Commonwealth (2009) 237 CLR 309, 389–90 [196]–[197].

104 Paul L Davies, Gower’s Principles of Modern Company Law (LBC Information Services, 6th ed, 1997) 348 nn 22–4.

1.2 Introductory Signals for Citations

Rule An introductory signal may be used before a citation to indicate the relationship between the source and a proposition in the text.

No introductory signal should be used where the source is quoted or directly supports the proposition in the text (for example, if paraphrased).

The following introductory signals may be used:

Introductory Signal

Meaning

See The source provides qualified support for the proposition in the text.

See, eg, The source is one of several authorities supporting the proposition.

See also The source provides additional or general support for the proposition in the text.

See especially The source is the strongest of several authorities supporting the proposition in the text.

6 Part I — General Rules

See generally The source provides background information on the

topic discussed in the text.

Cf The source provides a useful contrast to illustrate the

proposition in the text. (‘Cf’ means ‘compare’.)

But see The source is in partial disagreement with the

proposition in the text.

Contra The source directly contradicts the proposition in the

text.

Except for ‘contra’, introductory signals should not be italicised.

Examples 1 See, eg, James v Australia and New Zealand Banking Group Ltd

(1986) 64 ALR 347.

2 Cf Legislative Instruments Act 2003 (Cth) s 5.

3 Contra Giorgio Gaja, ‘Expulsion of Aliens: Some Old and New

Issues in International Law’ (1999) 3 Cursos Euromediterráneos

Bancaja de Derecho Internacional 283, 293.

1.3 Sources Referring to Other Sources

Rule The original of any source referred to should be consulted and cited.

However, where it is important to show that one source is referred to

in another source, the following clauses should be used to join the

citations:

Clause Meaning

quoting The first-listed source directly quotes the second

source.

quoted in The first-listed source is quoted directly in the second

source.

citing The first-listed source refers to (but does not directly

quote) the second source.

cited in The first-listed source is referred to (but not quoted

directly) in the second source.

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These clauses should be preceded by a comma.

Examples 7 Burger King Corporation v Hungry Jack’s Pty Ltd (2001) 69 NSWLR 558, 570 (Sheller, Beazley and Stein JJA), quoting Metropolitan Life Insurance Co v RJR Nabisco Inc, 716 F Supp 1504, 1517 (Walker J) (SD NY, 1989).

8 Mason v Freedman [1958] SCR 483, cited in Shelanu Inc v Print Three Franchising Corporation (2003) 64 OR (3d) 533, 556.

1.4 Subsequent References

1.4.1 Ibid

Rule ‘Ibid’ should be used to refer to a source in the immediately preceding footnote. However, ‘ibid’ should not be used where there are multiple sources in the preceding footnote.

‘Ibid’ can be used regardless of how the source is cited in the preceding footnote (whether in full, using ‘ibid’ or using ‘above n’).

If the pinpoint reference is identical to that in the preceding footnote, ‘ibid’ should appear without (repeating) the pinpoint reference.

If the pinpoint reference is different from that in the preceding footnote, ‘ibid’ should be followed by the (different) pinpoint reference. There should not be a comma (or other punctuation) between ‘ibid’ and a pinpoint reference.

As ‘ibid’ directs the reader back to the immediately preceding footnote, it should not be used to refer to a source cited earlier in the same footnote. (Rather, ‘at’ should be used in accordance with rule 1.4.4.)

‘Ibid’ should be capitalised if it appears at the start of a footnote.

Examples 18 Eric Barendt, Freedom of Speech (Oxford University Press, 2nd ed, 2005) 163.

19 Ibid. 20 Ibid 174–5.

8 Part I — General Rules

21 Defamation Act 2005 (Vic) s 37. 22 Ibid s 38. … 156 Rosalyn Higgins, Problems and Process: International Law and

How We Use It (Clarendon Press, 1994). Cf Barendt, above n 18, 67.

157 Barendt, above n 18, 69. [Not: Ibid 69 or Barendt, ibid 69.] … 204 Higgins, above n 156, 220. 205 Ibid 222, 239.

1.4.2 Above and Below

Rule ‘Above n’ should be used where a source has been cited: • in a previous footnote other than the immediately preceding

footnote; or

• in the immediately preceding footnote, if it is not the only source in that footnote.

However, ‘above n’ should not be used for:

• cases, international judicial decisions and other materials in chapters 2, 9, 10, 11 (in accordance with rules 2.14, 9.5, 10.3, 11.4);

• legislation and other materials in chapter 3 (in accordance with rule 3.9);

• certain sources in chapter 6 (in accordance with rule 6.16);

• treaties (in accordance with rule 7.6); and

• UN, WTO, GATT and EU documents (in accordance with rules 8.5, 12.4, 13.3),

and analogous sources in Part V.

Citations using ‘above n’ should appear as follows:

Author’s Surname , above n Footnote Number , Pinpoint .

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The ‘footnote number’ is the footnote in which the source is first cited.

Where the author is a body (such as a government department), the body’s name should be included in place of the author’s surname.

Where there is no author or editor, the title (or an abbreviated form of the title) should be included in place of the author’s surname.

Where works by different authors with the same surname are cited, the authors’ full names as they appear on the source should be included in place of the author’s surname (to avoid ambiguity).

Where multiple works by the same author are referred to, subsequent references should appear as follows:

Author’s Surname , Title (Shortened if Necessary) , above n Footnote Number , Pinpoint .

‘Above’ and ‘below’ may also be used to direct the reader to portions of the text (to particular footnotes, page numbers or numbered parts of the text). To direct the reader to more than one footnote, ‘above nn’ or ‘below nn’ should be used.

‘Op cit’, ‘loc cit’, ‘supra’ and ‘infra’ should not be used.

Examples 9 Catharine MacMillan, Mistakes in Contract Law (Hart Publishing, 2010) 38.

… 20 MacMillan, above n 9. … 22 N C Seddon and M P Ellinghaus, Cheshire and Fifoot’s Law of

Contract (LexisNexis, 9th ed, 2008) 867. … 27 Seddon and Ellinghaus, above n 22, 20. … 31 ‘Obama Moves to Bring Russia in from the Cold’, The Age

(Melbourne), 21 September 2009, 10. … 34 ‘Obama Moves to Bring Russia in from the Cold’, above n 31, 10.

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… 39 Sir Anthony Mason, ‘Future Directions in Australian Law’ (1987)

13 Monash University Law Review 149. 40 Keith Mason, Constancy and Change: Moral and Religious Values

in the Australian Legal System (Federation Press, 1990). … 43 Keith Mason, above n 40, 28. … 47 Kim Rubenstein, ‘Meanings of Membership: Mary Gaudron’s

Contributions to Australian Citizenship’ (2004) 15 Public Law Review 305.

48 Kim Rubenstein, Australian Citizenship Law in Context (Lawbook, 2002).

… 61 Rubenstein, Australian Citizenship Law in Context, above n 48,

65–74. 62 Rubenstein, ‘Meanings of Membership’, above n 47, 307–11. … 74 See above n 21 and accompanying text. 75 See above nn 31–3. 76 See below Part III(A)(1).

1.4.3 Short Titles

Rule Short titles are an abbreviated form of the title of a source. A short title should appear in italic text and be enclosed in (non-italic) inverted commas and parentheses after the initial citation of a source. It should appear after any pinpoints or parenthetical clauses in the citation. Only one short title should be included in the first citation of a source.

Cases, legislation, certain sources in chapter 6, treaties, international judicial decisions and UN, WTO, GATT and EU documents (and analogous sources in Part V) may be given short titles for subsequent references in accordance with rules 2.14, 3.9, 6.16, 7.6, 8.5, 9.5, 10.3,

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11.4, 12.4, 13.3.

For reports and other similar secondary sources (and additionally where indicated throughout the Guide), a short title based on the title of the source may be used with an ‘above n’ reference instead of the author’s surname. Subsequent references should then appear as follows:

Short Title , above n Footnote Number , Pinpoint .

Examples 2 Parliamentary Joint Committee on Corporations and Financial Services, Parliament of Australia, Opportunity Not Opportunism: Improving Conduct in Australian Franchising (2008) 4 (‘Opportunity Not Opportunism Report’).

… 16 Opportunity Not Opportunism Report, above n 2, 7.

1.4.4 At

Rule Where the same source is cited multiple times within the same footnote, the full citation should not be repeated and ‘at’ should precede subsequent pinpoint references. However, it is not necessary to repeat a pinpoint reference using ‘at’ if the subsequent pinpoint reference is the same as that immediately beforehand.

Where there are multiple sources in a footnote, ‘at’ should be used only to refer to the immediately preceding source.

‘At’ can be used regardless of how the source is first cited in a footnote (whether in full, using ‘ibid’ or using ‘above n’).

Examples 291 Commonwealth, Parliamentary Debates, Senate, 17 June 2008, 2626. The Minister explained that ‘[t]here may be a number of reasons that prevent a person’s immediate removal, … includ[ing] … issues surrounding the acquisition of the person’s travel documentation’: at 2627. [Not: … documentation’: ibid 2627.]

292 Ibid 2625. The Minister noted that his Department had ‘grouped the data to prevent the identification, or potential identification, of any one person.’ [Not: … any one person’: at 2625.]

12 Part I — General Rules

... 378 Cf Andrew Lynch and George Williams, ‘Beyond a Federal

Structure: Is a Constitutional Commitment to a Federal Relationship Possible?’ (2008) 31 University of New South Wales Law Journal 395; Tony Blackshield, ‘New South Wales v Commonwealth — Corporations and Connections’ (2007) 31 Melbourne University Law Review 1135. Blackshield notes a failed ‘attempt to confine the scope of s 51(xx)’: at 1137. Lynch and Williams argue that the Commonwealth nevertheless has ‘inadequate powers to fully regulate industrial relations’: Lynch and Williams, above n 378, 397 n 10. [Not: … industrial relations’: at 397 n 10.]

1.5 Quotations

1.5.1 Short and Long Quotations

Rule In the body of the text and in the footnotes, short quotations (of three lines or less) should be incorporated within single quotation marks.

Long quotations (of more than three full lines) should appear indented from the left margin, in a smaller font size, and without quotation marks. Legislative and treaty extracts, regardless of length, may also appear this way.

Where a long quotation appears in a footnote, the citation of the source should appear on the line directly preceding or following the quotation.

Examples Priestley JA stated that ‘there is a close association of ideas between the terms unreasonableness, lack of good faith, and unconscionability.’67

The Judge stated: Thus elaborating, the first question is whether ‘a financial benefit is given’ within the meaning of s 229 of the Corporations Act (in relation to the prohibition on related party benefits without member approval). The second question is whether the exception for arm’s length terms in s 210 of the Corporations Act is made out …135

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The Constitution provides in s 92 that: On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

__________ 138 The claims are inferred from the rhetorical question:

Do we respond [to the problems in remote communities] with more of what we have done in the past? Or do we radically change direction with an intervention strategy matched to the magnitude of the problem?

Commonwealth, Parliamentary Debates, House of Representatives, 7 August 2007, 10 (Malcolm Brough, Minister for Families, Community Services and Indigenous Affairs and Minister Assisting the Prime Minister for Indigenous Affairs).

1.5.2 Punctuation Introducing Quotations

Rule A short quotation should be integrated into the sentence. No specific punctuation is required to introduce it. It may be introduced by a colon.

No punctuation should be used where a sentence leads seamlessly into a long quotation. However, a colon is typically the appropriate punctuation to introduce a long quotation.

Examples This was most obvious in relation to proof of title to land, which ‘necessitated tracing title back through an unbroken chain of events and documents, perhaps as far as the Crown grant.’7

As the Privy Council commented: ‘it does not, in their Lordships’ opinion, assist to rationalise the defence … as concerned to protect security of receipts and then to derive from that rationalisation a limitation on the defence.’8

However, he ultimately rejected the submission that the detention of these children was indefinite and explained that

14 Part I — General Rules

the period of detention had a clear terminus. This (putting it broadly) is the voluntary election of the children (through their parents) to leave Australia or the completion of the legal proceedings brought by the parents on the children’s behalf …9

In 2005, the matter finally reached the House of Lords, whereupon Baroness Hale declared:

My Lords, this is, and has always been, a case about children, their rights and the rights of their parents and teachers. Yet there has been no one here or in the courts below to speak on behalf of the children. … The battle has been fought on ground selected by the adults.10

1.5.3 Quotations within Quotations

Rule In short quotations (integrated within the text), double quotation marks should be used for a quotation within the quoted text, single quotation marks for a further quotation inside that, and so forth.

In long quotations, single quotation marks should be used for a quotation within the quoted text, double quotation marks for a further quotation inside that, and so forth.

Quotation marks in quoted text should be changed to adhere to this rule.

Examples He observed that ‘the threshold for determining that an international organisation has “effective control” over an operation ought to be high.’

They summarised Kolb’s view as follows: Kolb describes good faith as a general principle of international law that has as its aim ‘to blunt the excessively sharp consequences sovereignty and its surrogates … may have in the international society, in ever- increasing need of cooperation’ …

1.5.4 Punctuation within Quotations

Rule Punctuation marks at the end of quoted text (full stops, commas, etc) should not be included in a quotation unless the punctuation mark forms part of and is important to the quotation. Other punctuation marks within a quotation should be retained in quoted text.

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Hyphens, en-dashes and em-dashes in quotations should be altered to adhere to rule 1.6.3. Full stops in abbreviations in quotations should be omitted to adhere to rule 1.6.1.

Examples As Walker observed, the ‘call for states to grant asylum to those persecuted because of prostitution or homosexuality was made over 20 years ago’. [Original: … over 20 years ago, and since then …]

Carmody J goes on to offer the following interpretation of the ‘paramount but not sole’ formulation appearing in previous cases:

The best interests of the child(ren) concerned, both in the short and longer term, and not the interests or needs of the parents (let alone the interests of either one of them) are the paramount consideration. However, they are not the sole factor. [Original: … sole factor. The …]

The observation that ‘there is a sharp student–teacher dichotomy that ought to be observed’ was repeated. [Original: … a sharp student-teacher dichotomy …]

1.5.5 Capitalisation at the Start of Quotations

Rule If a quotation begins a sentence, the first letter of the quotation should be capitalised. Otherwise, the first letter of the quotation should not be capitalised. Both may require use of square brackets to indicate amendment to the quotation (see rule 1.6.6).

Where a colon precedes a quotation, the first letter of the quotation should appear as it does in the original (whether capitalised or not).

Examples According to the Oxford English Dictionary, an ‘exception’ is [s]omething that is excepted; a particular case which comes within the terms of a rule, but to which the rule is not applicable; a person or thing that does not conform to the general rule affecting other individuals of the same class.30

Subsequently, in Dextra, the Privy Council asserted inequitability as the central rationale of the defence:

The defence should be regarded as founded on a principle of justice designed to protect the defendant from a claim to restitution in respect of a benefit received … in circumstances in which it would be inequitable to pursue that claim, or to pursue it in full.94

16 Part I — General Rules

1.5.6 Ellipses

Rule Omissions from a quotation should be indicated by an ellipsis ( … ). A space should precede and follow an ellipsis (however, a space should not separate an ellipsis and a footnote number, in accordance with rule 1.1.2).

Where the omitted text immediately follows a complete sentence, a full stop (or other closing punctuation) at the end of that sentence should be included before an ellipsis.

A full stop should not be included after an ellipsis (whether to show that words before the end of the sentence have been omitted, or to show that an omission falls between complete sentences in the source).

‘Leaders’ (ellipses at the start of quotations) should not be included.

An ellipsis should be added to or replace any punctuation at the end of a long quotation if the quotation does not end with an appropriate closing punctuation mark.

Examples In applying Sullivan, his Honour considered that the High Court had emphasised … that foreseeability of harm to the fathers was not sufficient to ground a duty of care. … Sullivan v Moody is not on all fours with the present case because it involved a statutorily imposed duty … Notwithstanding this difference, in my view Sullivan v Moody gives guidance … [Not: … imposed duty … . Notwithstanding …]

In Australian Capital Television, McHugh J noted: If the institutions of representative and responsible government are to operate effectively … the business of government must be examinable and the subject of scrutiny, debate and ultimate accountability at the ballot box. The electors must be able to ascertain and examine the performances of their elected representatives …84

1.5.7 Editing Quotations

Rule If a quotation is altered, the alteration should be included within square brackets (in accordance with rule 1.6.6). Omissions from a quotation should be indicated by an ellipsis (in accordance with rule 1.5.6).

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Spelling and capitalisation within quotations generally should not be changed (except as required by rule 1.5.5).

All case names, statute titles, treaty titles and titles of sources that should be italicised according to the rules in this Guide should also be italicised where they appear in quotations (in accordance with rule 1.8.2).

Examples The Court observed that ‘the [Commonwealth] Act was clearly within power.’ [Original: … the Act was clearly within power. …]

Additionally, in Tasmania, an as yet insufficiently tested provision in the Anti-Discrimination Act 1998 (Tas) appears to enlarge the concept and application of anti-vilification laws in relation to conduct which ‘offends, humiliates, … insults or ridicules’. [Original: … offends, humiliates, intimidates, insults or ridicules …]

As Bunjevac has observed: According to the International Organization of Securities Commissions, this perception was significant in structured finance ratings because the rating served as an independent informational input about complex transactions. [Not: … Organisation …]

1.5.8 [sic]

Rule ‘[sic]’ (meaning ‘thus’) should be inserted after a significant error in material being quoted. Insignificant errors should be left as they appear in the original and should not be followed by ‘[sic]’.

The term ‘[sic]’ should not be used to mark non-Australian English spelling or non-standard capitalisation.

Although a quotation is obviously the work of another author, ‘[sic]’ may be inserted after discriminatory or offensive expressions in quotations. The preferable solution, where possible, is to paraphrase the passage to avoid any such expression.

Example He stated brazenly: ‘They misunderestimated [sic] me.’

18 Part I — General Rules

1.5.9 Emphasis and Citations in Quotations

Rule Any change of emphasis in or omission of citations from a quotation should be indicated in parenthetical clauses after the citation. The parenthetical clauses should follow any pinpoint reference.

Where italics appear in or are added to quoted text for emphasis, the following parenthetical clauses should be used:

Parenthetical Clause Meaning

(emphasis in original) The emphasis was in the original text and has not been changed.

(emphasis added) There was no emphasis in the original text and emphasis has been added.

(emphasis altered) The emphasis in the original text has been removed or changed.

Any omission of citations from a quotation should be indicated by ‘(citations omitted)’ immediately after the pinpoint (regardless of whether one or several citations have been omitted). However, where possible, a quotation within a quotation should be attributed to its original source in accordance with rule 1.3.

If multiple parenthetical clauses are necessary, they should be enclosed in separate sets of parentheses.

Examples 16 Commonwealth v WMC Resources Ltd (1998) 194 CLR 1, 91–2 (emphasis in original) (citations omitted).

17 Julie Mertus, ‘Considering Nonstate Actors in the New Millennium: Toward Expanded Participation in Norm Generation and Norm Application’ (2000) 32 New York University Journal of International Law and Politics 537, 552–3 (citations omitted).

1.6 Punctuation

1.6.1 Full Stops

Rule Full stops should be used only to mark the end of a sentence or

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footnote.

Full stops should not be used in abbreviations, after initials or after heading numbers or letters.

If a quotation or an element of a citation includes full stops in abbreviations or after initials, the full stops should be omitted. This should not be indicated in the quotation or the citation element, with an ellipsis or otherwise.

Examples Dr Messrs Mr Mrs Ms A-G LLB Cth NSW Qld cf eg et al ie D H Lawrence

James Hadley, Introduction to Roman Law in Twelve Academical Lectures (D Appleton, 1873). [Not: … (D. Appleton, 1873).]

1.6.2 Commas

Rule Among other uses, commas should be used to separate items in a list of more than two (including the last two items where necessary to avoid ambiguity).

Commas should appear on both sides of a subordinate clause within a sentence or not at all. They should not be used only before, or only after, a subordinate clause.

Examples It was agreed that there would be significant implications for solicitors, barristers and the judiciary.

Methods of transport included car, horse and cart, and hovercraft.

The effect of any equality guarantee would have been so far-reaching that, even if currently out of favour, it cannot be ignored. [Not: The effect of any equality guarantee would have been so far-reaching that even if currently out of favour, it cannot be ignored.]

1.6.3 Em-Dashes, En-Dashes, Hyphens and Slashes

Rule An em-dash (—) may be used to indicate an interruption within a sentence or in place of a colon. Em-dashes may also be used on both sides of a parenthetical remark or apposition.

20 Part I — General Rules

An en-dash (–) is half the length of an em-dash and may be used to indicate a span between two numbers (see rules 1.1.6, 1.12.1 and 1.13.2). An en-dash should be used in preference to a forward slash (/) to mark a tension or disjunction between two concepts. However, a forward slash may be used to separate alternatives.

A hyphen (-) is half the length of an en-dash and is used to connect the parts of a compound word. Hyphenation should adhere to rule 1.9.

Examples There was no clear ratio in the decision — indeed, with seven judgments, this was to be expected. [em-dash]

Once again, those who might have thought otherwise — presumably including Judge McDonald in her dissent in Tadić — were in fact conflating two fundamentally different types of liability. [em-dashes]

There was much discussion on pages 14–22. [en-dash]

tort–contract dichotomy [en-dash]

a yes/no question [slash]

evidence-based policymaking [hyphen]

1.6.4 Quotation Marks

Rule Single (and double) quotation marks should be used for quotations in accordance with rules 1.5.1 and 1.5.3.

Single quotation marks may be used to indicate that a word is being used in an unconventional sense.

Example The State Department ‘confirmed’ the accuracy of the information by not formally objecting to its publication.

1.6.5 Parentheses

Rule A full stop or other punctuation ending a sentence should be placed before a closing parenthesis only if the entire sentence appears within the parentheses.

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Example There can be no doubt of the importance of such a law. (That does not mean, of course, that its comparative merits cannot be debated.) [Not: (That does not mean, of course, that its comparative merits cannot be debated).]

1.6.6 Square Brackets

Rule Square brackets should be used to indicate an adjustment to a quotation (for example, where a letter that was upper-case in the original text has been changed to lower-case or vice versa). They may also be used to enclose comments that did not appear in the original text being quoted.

Square brackets should also be used to enclose information in citations of translations (see rule 5.6 and chapter 25).

Example As Kirby J noted, ‘[t]he Minister did not appoint [Justice Mathews] as reporter until her consent was first signified.’

1.7 Capitalisation

Rule Capitalisation should be consistent throughout a document. Generally, words should be capitalised only where they:

• appear at the beginning of a sentence, title or heading; or

• are proper nouns.

However, where it is important to expression or meaning, other words may be capitalised.

In the titles of all cited materials and in all headings, the first letter of the following should be capitalised:

• the first word in a title or heading (and a subtitle or subheading); and

22 Part I — General Rules

• all other words in the title except articles (‘the’, ‘a’, ‘an’), conjunctions (for example, ‘and’, ‘but’) and prepositions (for example, ‘on’, ‘with’, ‘before’).

However, phrases in foreign languages appearing in titles and headings should be capitalised in accordance with convention in that language.

The following words should generally be capitalised wherever they occur:

Act (or ‘Bill’) of Parliament Attorney-General Bar (that is, the group of practising barristers) Cabinet

Commonwealth Crown Executive Council (but ‘the executive’)

Governor Governor-General

Her Majesty, the Queen Imperial

her Honour, his Honour, their Honours

Minister (of the Crown) Ombudsman Parliament (but ‘parliamentary’) Premier Prime Minister

The following words should generally appear in lower case (except at the beginning of a sentence, in a title or in a heading):

common law (and other names of legal classification such as ‘administrative law’)

federal government internet

judiciary legislature local government press (that is, the media) statute

‘Court’ should be capitalised when used to refer to a specific court (such as the High Court or the Court of Appeal). However, ‘a court’ and ‘the court’ when used in a general sense (absent reference to a specific court) should not be capitalised.

‘State’ and ‘Territory’ should be capitalised (whether used as a noun or an adjective) when referring to a specific state or territory. However, when used generally they should not be capitalised.

Examples In a negligence claim, the court must judge the reasonableness of the defendant’s act or omission.

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The High Court had handed down its judgment in Cole v Whitfield,22 but not in Bath v Alston Holdings Pty Ltd.23 The Court’s decision in Cole nevertheless proved difficult to apply.

The State of New South Wales has always taken a different approach from that of other states.

1.8 Italicisation

1.8.1 Italicisation for Emphasis

Rule Words within the text may be italicised for emphasis. If words in a quotation are italicised for emphasis, a parenthetical clause must be inserted in the footnote to indicate this (in accordance with rule 1.5.9).

Example Rather, the suggested changes would act as a signalling mechanism to parent companies that their control, and their wrongdoing through that control, would result in a statutory piercing of the veil.

1.8.2 Italicisation of Source Titles

Rule All case names, statute titles, treaty titles and titles of other materials that should be italicised according to the rules in this Guide should appear in italics in the text and footnotes (regardless of whether a full citation of the source is included).

They should also be italicised in quotations and in citations (for example, within the titles of journal articles) whether or not they are italicised and/or cited in full in the original source. Where source titles are italicised in a quotation, this need not be indicated by a parenthetical clause in the footnote or by ‘[sic]’.

Examples However, there is one key provision — s 39(1) — of the Charter that is unique:

24 Part I — General Rules

If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter. [Original: … Charter … Charter …]

Ann Elizabeth Mayer, ‘Reflections on the Proposed United States Reservations to CEDAW: Should the Constitution Be an Obstacle to Human Rights?’ (1996) 23 Hastings Constitutional Law Quarterly 727.

1.8.3 Italicisation of Foreign Words

Rule Foreign words and phrases should be italicised unless they appear in the latest edition of the Macquarie Dictionary.

Accordingly, the following examples of foreign words and phrases should not be italicised:

ab initio ad hoc ad idem amicus curiae bona fide caveat emptor de facto de jure et al ex gratia ex parte ex post facto habeas corpus inter alia laissez-faire non est factum obiter dictum per se prima facie quid pro quo raison d’être ratio decidendi sui generis terra nullius ultra vires vice versa vis-a-vis

The following are examples of foreign words and phrases that should be italicised:

contra proferentem ex ante jus ad bellum lex fori ne bis in idem non-refoulement quantum meruit res ipsa loquitur stare decisis

1.9 Spelling and Hyphenation: Official Dictionary

Rule Spelling should comply with the latest edition of the Macquarie Dictionary. Where alternative spellings are given, the first-listed should be used unless there is good reason to do otherwise.

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Hyphenation should also comply with the latest edition of the Macquarie Dictionary. If a compound expression does not appear in the Macquarie Dictionary, it should be hyphenated (not spelt as one word).

Generally, if a hyphenated word should be capitalised according to rule 1.7, the letter following the hyphen should also be capitalised.

Examples home-buyer peacekeeping pre-industrial re-enact reinvigorated decision-maker multidimensional policymaker nonpayment

Peter Birks (ed), Wrongs and Remedies in the Twenty-First Century (Clarendon Press, 1996). [Not: … Twenty-first Century…]

1.10 Grammar: Official Guide

Rule Grammar should be guided by the latest edition of Fowler’s Modern English Usage.

1.11 Inclusive Language

Rule Gender-inclusive language should be used. The words ‘he’, ‘his’ and ‘him’ should not be employed as the supposedly neutral third-person singular. It is acceptable to use ‘he or she’, ‘she or he’ or any derivative form (‘his’, ‘her’ and ‘him’). It is also acceptable to use ‘they’ (and derivative forms ‘their’ and ‘them’) as neutral singular pronouns.

Authors should avoid terms such as ‘the reasonable man’, ‘chairman’ and ‘spokesman’. Neutral terms such as ‘the reasonable person’, ‘chairperson’ and ‘spokesperson’ should be substituted. However, it may be appropriate to retain gender-specific language where this accurately conveys the intended meaning in the relevant context (for example, in the sentence: ‘A plaintiff may be liable in negligence to her own foetus while driving.’)

26 Part I — General Rules

1.12 Numbers and Currency

1.12.1 Numbers

Rule Numbers under 10 should be written in words. Numerals should be used for:

• numbers over nine;

• numbers of sections, pages, paragraphs, clauses, editions and other elements of citations;

• ratios, mathematical expressions, decimal numbers, etc; and

• series of related quantities, numbers, ages, etc.

However:

• a sentence should never begin with a numeral (even if it is a date) — words should be used instead; and

• a number 10 or above may be written out in full where it forms part of a proper noun.

In numbers of five digits or more, a space (not a comma) should be used to separate each group of three digits.

In numbers expressed in terms of millions or billions, the relevant term should be written out in full (not abbreviated to ‘m’ or ‘bn’ etc).

Where a span of numbers is referred to, only the minimum number of digits necessary should be included in the second number (for example, 87–8, 436–62). However, for numbers whose last two digits are 10–19, the last two digits should always be included (for example, 11–14, 215–19).

The above rules also apply to ordinal numbers (for example, second, 40th). The letters in ordinal numbers over nine should appear in superscript.

Examples one six nine 10 per cent 19 673 8700 [Not: 8,700 or 8 700] 10 695 [Not: 10,695] 2 000 000 2.6 million [Not: 2.6m or 2.6 m] 7 billion 3.9 trillion

The High Court split 4:3.

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The government announced a Ten Point Plan in response to Wik.

In June 2008, the Minister informed the Senate that as of 7 May 2008 there were 25 people in immigration detention following the cancellation of their visas. Of those 25 persons, only 1 had been in Australia for less than 5 years, with the remaining 24 having been in Australia for between 11 and 45 years prior to visa cancellation.

first third ninth 10th 21st 52nd

1.12.2 Currency

Rule Currency amounts should appear in figures, immediately preceded by an appropriate symbol (or commonly used code) indicating denomination. The currency denomination need not be specified if it is obvious from the context.

Examples AUD100 $1600 A$16 000 HK$1.3 million USD200 000 US$300 000 £150 ¥250 000 €47 373.75

The Court awarded $110 000 in damages under the Trade Practices Act 1974 (Cth).

The declared value of the cargo was US$6600.

1.13 Dates

1.13.1 Full Date

Rule The ‘full date’ should be written in the form:

Day Month Year

The day should not be an ordinal number.

If the day of the week is included in addition to the full date, the name

28 Part I — General Rules

of the day should precede the full date and should not be followed by a comma.

Examples 15 June 1985 [Not: 15th June 1985]

Thursday 6 March 1987 [Not: Thursday, 6 March 1987]

1.13.2 Spans of Dates

Rule Spans of years should include the first year in full, an en-dash, and the last two digits of the final year. However, if the final year occurs in a different century from the first, the final year should appear in full.

Spans of days in the same month should include both dates in full separated by an en-dash. Spans of dates over different months and spans of full dates should be separated by a spaced en-dash.

Examples 1986–87 1999–2009 21–22 September [Not: 21–2] 17 July – 19 August 1 January – 29 February 1996 22 March 1946 – 27 August 1947

1.13.3 Decades and Centuries

Rule When referring to decades, an apostrophe should not be placed between the year and the ‘s’. If only the last two digits of the year are included, an apostrophe should precede them.

Centuries should be indicated using ordinal numbers (which should adhere to rule 1.12.1).

Examples 1970s or ’70s [Not: 1970’s or ’70’s]

21st century

1.14 Names

1.14.1 General Rule

Rule Initials in names should be separated by a space and should not be

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followed by full stops (see rule 1.6.1).

Conventional titles such as ‘Ms’ or ‘Mr’ may be included in discursive text before a person’s name (in both the body and the footnotes), but should not be included in authors’ names in citations.

Honorific titles or titles indicating qualification, such as ‘the Hon’, ‘Dr’ or ‘Professor’, may be included in discursive text (in both the body and the footnotes) before a person’s name. They should not be used in an author’s name in citations, except for ‘Sir’, ‘Dame’ and peerage titles (such as ‘Lord’, ‘Baroness’, ‘Earl’ and ‘Viscount’).

Postnominals, such as ‘AM’ (Member of the Order of Australia) and ‘LLB’ (Bachelor of Laws), should not be included after the name of an individual in either the text or the footnotes (unless relevant). They should never be included after the name of an author in a citation.

Examples Referring to an individual discursively in the text or footnotes:

Referring to an author in a citation:

Associate Professor Tania Voon Tania Voon Dame Nellie Melba Dame Nellie Melba Lord Nicholls Lord Nicholls Professor Ian Malkin Ian Malkin Baroness Hale Baroness Hale Dr Cockburn John Cockburn Ms Sharon Rodrick Sharon Rodrick Mr Gageler SC Stephen Gageler H L A Hart H L A Hart

1.14.2 Authors of Secondary Sources

Rule In citations of secondary sources, authors’ names should appear exactly as they do on the source (subject to the other rules in this chapter). This may require the same author’s name to appear differently in citations of several of their works.

30 Part I — General Rules

Where there are two or three authors, the names of all authors should be included and the word ‘and’ should separate the names of the last two authors. All surnames should be included in ‘above n’ references.

Where there are more than three authors, the name of the author appearing first on the source should be included, followed by ‘et al’. The first listed author’s surname and ‘et al’ should be included in ‘above n’ references.

Examples 14 P D Finn, ‘The Fiduciary Principle’ in T G Youdan (ed), Equity, Fiduciaries and Trusts (Carswell, 1989) 1, 4. [Not: Paul Finn, ‘The Fiduciary Principle’ …]

15 Kathy Bowrey and Natalie Fowell, ‘Digging Up Fragments and Building IP Franchises’ (2009) 31 Sydney Law Review 185.

16 Robert Cryer et al, An Introduction to International Criminal Law and Procedure (Cambridge University Press, 2007). [Not: Robert Cryer, Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst, …]

… 19 Bowrey and Fowell, above n 15, 187. 20 Cryer et al, above n 16, 124.

1.14.3 Publications Authored by or Produced on Behalf of a Body

Rule If a publication is authored by a body (for example, a government department or a non-governmental organisation), the name of that body should appear as the author.

Where a government department is the author and the jurisdiction is not apparent from the department’s name, the abbreviated jurisdiction may be included in parentheses after the department’s name. The abbreviations in rule 3.1.3 should be used.

If a subdivision of a body or an individual writing on behalf of a body is the author, both the name of the subdivision or individual and the body should be included in the form:

Individual/Subdivision , Body

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Where there are multiple subdivisions, only the most specific subdivision should be included (unless this creates ambiguity).

Examples Queensland Government, ClimateSmart 2050 — Queensland Climate Change Strategy 2007: A Low Carbon Future (2007).

Department for Women (NSW), Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault (1996).

Criminal Justice Sexual Offences Taskforce, Attorney-General’s Department (NSW), Responding to Sexual Assault: The Way Forward (2006).

Russell Cocks, Law Institute of Victoria, Ethics Handbook: Questions and Answers (2004) 133.

1.14.4 Judges

Rule Judges writing curially (that is, in a judgment) should be referred to by their surname and their judicial title (such as ‘Justice’) or peerage title (such as ‘Lord’), both in the text and in citations. Typically, but not always, the judicial title should be indicated by an abbreviation placed after the judge’s name (in accordance with rules 2.9.1, 9.2.8, 23.1.6 and 24.1.8). Honorifics (such as ‘the Hon’) should not be included when citing a judge writing curially. Where a judge’s first name or initials appear on a case and are necessary to unambiguously identify the judge, they should be included.

When citing a judge writing extra-curially (both in the text and in citations), the unabbreviated judicial or peerage title (such as ‘Justice’ or ‘Chief Justice’) should be included before the judge’s name, unless the judge has a title (such as ‘Sir’, ‘Dame’ or a peerage title) that makes a judicial title unnecessary.

When citing a former judge (writing extra-curially), their former judicial title should not be included. ‘Sir’, ‘Dame’ or any peerage title should be included. Honorifics may be included in the text, but not in citations (in accordance with rule 1.14.1).

In both curial and extra-curial writing, any territorial designation of a peer (such as ‘of Chieveley’) should not be included unless necessary to avoid confusion.

32 Part I — General Rules

Examples Context Example(s)

Citing a judge writing curially (in text):

As Dixon J noted in Essendon Corporation v Criterion Theatres Ltd, …

Citing a judge writing curially (in a citation):

58 Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1, 18 (Dixon J).

Citing a judge writing extra-curially (in text):

Opening the Law Librarians’ Symposium, Sir Daryl Dawson stated: ‘The modern law library is something which I could not have envisioned in my student days.’ … Justice Virginia Bell … Lord Hoffmann …

Citing a judge writing extra-curially (in a citation):

99 Sir Anthony Mason, ‘Future Directions in Australian Law’ (1987) 13 Monash Law Review 149; Lord Cooke, ‘Foreword’ in Janet McLean (ed), Property and the Constitution (Hart Publishing, 1999) v; Justice Michael Kirby, ‘Transnational Judicial Dialogue, Internationalisation of Law and Australian Judges’ (2008) 9 Melbourne Journal of International Law 171.

Citing a former judge (in text):

As pointed out by the Hon Mary Gaudron in a recent speech, …

Citing a former judge (in a citation):

104 Michael Kirby, ‘The Dreyfus Affair — Lessons for Today’ (Speech delivered at the Melbourne Law School, Melbourne, 1 September 2009).

Including the territorial designation of a peer

This was a different approach from that of Lord Nicholls. [Not: … Lord Nicholls of Birkenhead]

But: Lord Keith of Avonholm had a very different view of negligence from that held by Lord Keith of Kinkel.

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1.15 Headings and Titles

1.15.1 Title and Author

Rule Titles should be capitalised, centred and in bold type. The name(s) of the author(s) should be in large and small capitals and centred.

Example REFLECTIONS ON THE WORLD TRADE ORGANIZATION AND THE PROSPECTS FOR ITS FUTURE

BRYAN MERCURIO*

1.15.2 Heading Levels

Rule Headings should appear as follows:

Heading Level Attributes

I HEADING LEVEL ONE Upper-case Roman numeral not italicised; heading in large and small capitals and centred

A Heading Level Two Upper-case letter not italicised; heading italicised and centred

1 Heading Level Three Arabic numeral not italicised; heading italicised and left-aligned

(a) Heading Level Four Lower-case letter and heading italicised and left-aligned

(i) Heading Level Five Lower-case Roman numeral and heading italicised and left-aligned

Capitalisation in headings should adhere to rule 1.7.

1.16 Bibliographies

Rule Where a bibliography is required, it should list all sources that were relied upon (not only those referred to in the text and footnotes).

34 Part I — General Rules

The bibliography may be divided into the sections below. However, a section may be omitted and other categories or subdivisions may be included as needed (with appropriate renumbering).

A Articles/Books/Reports

B Cases

C Legislation

D Treaties

E Other

All sources listed in the bibliography should be cited as set out in these rules (cases should be set out as if referred to in the text). However:

• an author’s first name and surname should be inverted and separated by a comma — for works by two or more authors, only the first author’s name and surname should be inverted; and

• full stops should not follow the citations.

Sources should be listed in alphabetical order according to:

• the surname of the first-listed author;

• where the author is an institution, the first word of the name of the institution (excluding ‘the’); or

• where there is no author, the first word of the title.

Where two authors have the same surname, the authors should be sorted alphabetically according to their first names. Where more than one work by an author is listed, the works should be listed in chronological order.

Example BIBLIOGRAPHY

A Articles/Books/Reports

Eastwood, Christine, Sally Kift and Rachel Grace, ‘Attrition in Child Sexual Assault Cases: Why Lord Chief Justice Hale Got It Wrong’ (2006) 16 Journal of Judicial Administration 81

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Foster, Michelle, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (Cambridge University Press, 2007)

McLachlin, Beverley, ‘Academe and the Courts: Professor Mullan’s Contribution’ in Grant Huscroft and Michael Taggart (eds), Inside and Outside Canadian Administrative Law: Essays in Honour of David Mullan (University of Toronto Press, 2006) 9

B Cases

Lane v Morrison [2009] HCA 29 (26 August 2009)

Northern Cameroons (Cameroon v United Kingdom) (Preliminary Objections) [1963] ICJ Rep 15

C Legislation

Aerodrome Landing Fees Act 2003 (Vic)

Australian Constitution

D Treaties

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

E Other

New South Wales, Parliamentary Debates, Legislative Assembly, 15 December 1909

C ases

2 Cases

R v Tang (2008) 237 CLR 1 , 7 Examples

Bakker v Stewart [1980] VR 17 , 22

Element Case Name Year Volume Law Report Series

Starting Page

Pinpoint

Rule 2.1 2.2 2.2 2.3 2.4 2.5

2.1 Case Name

2.1.1 Parties’ Names: General Rule

Rule A citation of an Australian case should include the parties’ names in italics as they appear on the first page of the report, except that:

• punctuation should adhere to rule 1.6.1 (so full stops should not be used in abbreviations);

• capitalisation should adhere to rule 1.7;

• where the parties are individuals, given names and initials should be omitted;

• only the first-named plaintiff and first-named defendant should be cited (‘& Anor’ or ‘& Ors’ should not be used to indicate other parties); and

• where the case involves more than one action, only the first action should be cited.

Examples Alati v Kruger (1955) 94 CLR 216.

Momentum Productions Pty Ltd v Lewarne (2009) 254 ALR 223. [Not: Momentum Productions Pty Ltd v Richard John Lewarne …]

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149. [Not: Hot Holdings Pty Ltd v Creasy and Ors …]

Tame v New South Wales (2002) 211 CLR 317. [Not: Tame v New South Wales; Annetts v Australian Stations Pty Ltd …]

38 Part II — Domestic Sources

2.1.2 Business Corporations and Firms

Rule Where a party is a business corporation or firm, the following abbreviations should be used:

Word Abbreviation

and & Company Co Limited Ltd Proprietary Pty Incorporated Inc (in liquidation) (in liq) (in provisional liquidation) (in prov liq) (administrator appointed) (admin apptd) (manager appointed) (mgr apptd) (receiver appointed) (rec apptd)

Other (including foreign) words and phrases designating corporate status (for example, GmbH, AG, plc, SA, Sarl, etc) or a special status under incorporation legislation (for example, rec and mgr apptd) should be abbreviated according to convention.

‘Trading as’ or ‘t/as’, trading names and former company names should not be included.

Where ‘the’ forms part of a company or firm name, it should be included.

Examples Andrew Shelton & Co Pty Ltd v Alpha Healthcare Ltd (2002) 5 VR 577.

Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51.

Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635. [Not: … Pty Ltd (in liquidation) …]

Olivaylle Pty Ltd v Flottweg GmbH & Co KGaA [No 3] (2008) 76 IPR 152.

The Mond Staffordshire Refining Co Ltd v Harem (1929) 41 CLR 475. [Not: Mond Staffordshire Refining Co Ltd v Harem trading as ‘Mulsol’ Laboratories …]

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C ases

2.1.3 The Commonwealth and the States and Territories

Rule Where the Commonwealth of Australia is a party, ‘Commonwealth’ should be used. Where a party is an Australian state or territory, only the name of that State or Territory should be used (for example, ‘Queensland’, not ‘State of Queensland’).

‘The’ should be omitted from such names.

Examples Wong v Commonwealth (2009) 236 CLR 573. [Not: … The Commonwealth …]

New South Wales v Amery (2006) 230 CLR 174. [Not: State of New South Wales …]

2.1.4 The Crown

Rule Rex (‘the King’) and Regina (‘the Queen’) should be abbreviated to ‘R’ where the Crown is the first-named party. Where the Crown is the respondent, ‘The King’ or ‘The Queen’ (as appropriate) should be written out in full.

Examples R v Reid [2007] 1 Qd R 64.

Nydam v The Queen [1977] VR 430.

Kemp v The King (1951) 83 CLR 341.

2.1.5 Governmental Entities, Foreign Governments and International Organisations

Rule Where a governmental entity or instrumentality, a foreign government or an international organisation is a party, its name should appear in the conventional shortened form (if any exists), rather than the full elaborate form. However, the full form should be used where this is necessary to avoid ambiguity.

‘The’ should be omitted from such names.

40 Part II — Domestic Sources

Examples BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266. [Not: … President, Councillors and Ratepayers of the Shire of Hastings …]

Papua New Guinea v Daera Guba (1973) 130 CLR 353. [Not: Administration of the Territory of Papua New Guinea …]

O’Donoghue v Ireland (2008) 234 CLR 599. [Not: … Republic of Ireland …]

European Community v Commissioner of Patents (2006) 68 IPR 539.

But: Zoeller v Federal Republic of Germany (1989) 23 FCR 282.

2.1.6 Ministers and Officers of the Commonwealth, States and Territories, and Government Departments

Rule Where a Minister of the Crown or government officer is a party, their title should appear in the conventional shortened form (if any exists), rather than the full elaborate form.

Where both the title and name of a Minister or officer are included in the report, only the title should be included (and the name omitted). However, where only their name is included in the report, this should be included.

Where the jurisdiction of the Minister or officer is included in their title (but not evident in the conventional shortened form), it should not appear in full, but should appear in parentheses in an abbreviated form after their title (using the abbreviations in rule 3.1.3).

Where a secretary, under secretary or officer of a government department is a party and the name of the department appears in the case name, their position and the name of the department (separated by a comma) should be included. If the jurisdiction of the department is included in its title, it should appear in parentheses in an abbreviated form after the department name (using the abbreviations in rule 3.1.3).

‘The’ should be omitted from such titles.

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C ases

Examples MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622. [Not: MacCormick v Commissioner of Taxation of the Commonwealth of Australia …]

M238 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 (21 November 2003). [Not: … Ruddock, The Minister for Immigration …]

Hicks v Ruddock (2007) 156 FCR 574.

Zhu v Treasurer (NSW) (2004) 218 CLR 530. [Not: Zhu v Treasurer of New South Wales …]

Houssein v Under Secretary, Department of Industrial Relations and Technology [1980] 2 NSWLR 398.

2.1.7 Attorneys-General and Directors of Public Prosecutions

Rule Where an Attorney-General is a party, ‘Attorney-General’ should be used in the text and ‘A-G’ in a footnote citation.

Where a party is a Director of Public Prosecutions, ‘Director of Public Prosecutions’ should be used in the text and ‘DPP’ in a footnote citation.

Both should be followed by the abbreviated form of the relevant jurisdiction within parentheses (see rule 3.1.3), even if it is not included in the report.

‘The’ should not precede ‘A-G’ or ‘DPP’ in a citation.

Examples In Director of Public Prosecutions (NSW) v RHB,2 the Court of Criminal Appeal of New South Wales reconsidered a sentence imposed for murder.

__________ 16 DPP (Vic) v Finn (2008) 186 A Crim R 235. 17 Bradshaw v A-G (Qld) [2000] 2 Qd R 7, 13.

42 Part II — Domestic Sources

2.1.8 Re

Rule Procedural phrases such as ‘In re’ and ‘In the matter of ’ should be shortened to ‘Re’.

Examples Re Judiciary and Navigation Acts (1921) 29 CLR 257. [Not: In re Judiciary and Navigation Acts …]

Re Palmer; George v McIntyre (1902) 2 SR (NSW) 200.

Note ‘Re’ means ‘in the matter of ’ and is commonly used when a court acts in an advisory or guardianship capacity, as it does in cases involving the interpretation of wills or trusts. For example, if Re Smith were a trusts case, Smith would be the testator or settlor. Extended case names such as Roberts v Jones; Re Williams can occur where, for example, Williams left property to Jones to hold on trust for Roberts and Roberts sues Jones to enforce the will. In speech, ‘Re’ should be rendered ‘in the matter of ’.

2.1.9 Ex parte

Rule ‘Ex parte’ should not be abbreviated and ‘Ex’ should be capitalised.

Examples Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372.

J Boag & Son Brewing Ltd v Cascade Brewery Co Pty Ltd; Ex parte Banks Paton Australia Pty Ltd (1997) 7 Tas R 119.

R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.

Notes ‘Ex parte’ indicates that the party to an action is acting in the absence of the other party. For example, Ex parte Wilson indicates that Wilson brought the action. Extended case names such as Ex parte Wilson; Re Ho can occur where, for example, Wilson brings an action concerning the rights of Zhang (a third party) under Ho’s will.

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Case names such as R v Chan; Ex parte Owen can refer to applications for prerogative writs (administrative law remedies) and contempt proceedings. In the case of a prerogative writ, the above citation would mean that Owen has made an application for a prerogative writ against Chan.

2.1.10 ex rel

Rule When citing a relator action, the first-named relator should always be included and should be introduced by the abbreviation ‘ex rel’.

Example 227 A-G (Vic) ex rel Dale v Commonwealth (1945) 71 CLR 237. [Not: A-G (Vic) (at the relation of Dale and Others) …]

Note The abbreviation ‘ex rel’ stands for ‘ex relatione’, which means ‘upon the relation or information of’. Where a legal action is brought by the Attorney-General at the request of a private individual who lacks the necessary standing to sue in their own name, the private individual is termed the ‘relator’ and the case ‘the relator action’. In pre-20th century law reports, ‘ex rel’ ordinarily denoted that the reporter did not personally witness the proceedings but obtained an account second-hand.

2.1.11 v

Rule A ‘v’ should generally separate the parties’ names. It should not be followed by a full stop and should be italicised.

Example K-Generation Pty Ltd v Liquor Licensing Court (2007) 99 SASR 58.

Note In speech, the ‘v’ between the parties’ names is rendered ‘and’ in a civil action and ‘against’ in a criminal action both in Australia and the United Kingdom. It is not pronounced ‘versus’ as it is in the United States of America.

44 Part II — Domestic Sources

2.1.12 Admiralty Cases

Rule For admiralty cases in rem, only the name of the vessel in question should appear as the case name.

For admiralty cases in personam, the parties’ names (separated by ‘v’) followed by a semicolon and the name of the vessel at issue should appear as the case name.

‘The’ should be included in names of vessels.

Examples The Maria Luisa [No 2] (2003) 130 FCR 12. [Not: Kent v Vessel ‘Maria Luisa’ [No 2] …]

Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd; The Great Peace [2003] QB 679.

Note Admiralty cases in rem are proprietary actions brought against the ship itself, and the ship (not a person) is named as the respondent. Admiralty cases in personam are actions between private parties that relate to a ship.

2.1.13 Multiple Proceedings between the Same Parties

Rule For multiple proceedings under the same name, the number of the decision should be indicated in square brackets if the number appears in the case name itself.

Where there are multiple proceedings under the same name, but the case names do not (all) include numbers, it may be appropriate to give the cases descriptive short titles to differentiate them (see rule 2.1.14).

Examples Bahr v Nicolay [No 2] (1988) 164 CLR 604.

Wentworth v Rogers [No 5] (1986) 6 NSWLR 534.

Kuwait Airlines Corporation v Iraqi Airways Co [Nos 4 and 5] [2002] 2 AC 883.

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C ases

The litigation commenced by Mrs Cubillo went through many stages.6

__________ 6 See Cubillo v Commonwealth (1999) 89 FCR 528 (‘Cubillo Strike-

Out Application’); Cubillo v Commonwealth [No 2] (2000) 103 FCR 1 (‘Cubillo Trial’); Cubillo v Commonwealth (2001) 112 FCR 455 (‘Cubillo Appeal’).

2.1.14 Abbreviated and Popular Case Names

Rule Where a case is commonly referred to by a popular name or is referred to more than once, the popular name or an abbreviated version of the case name may be included as a short title and used in subsequent references to the case. A popular case name may also be included as a short title to identify a case (even where the case is not referred to subsequently).

The short title should adhere to rule 1.4.3 (so should be italicised and placed within single inverted commas and parentheses following the initial citation). It may be placed in the text or in the footnotes.

In subsequent references, the short title should replace the parties’ names. Otherwise, the citation should appear as normal.

Examples Several Justices on the Court have shown an extreme aversion to ‘[t]op-down reasoning’.1 This aversion has emerged in several different contexts. … Those arguing for judicial acknowledgment of restitution for unjust enrichment have not been immune to this criticism.4

The external affairs power has been interpreted widely in many recent decisions, such as Commonwealth v Tasmania (1983) 158 CLR 1 (‘Tasmanian Dam Case’).9

__________ 1 See, eg, McGinty v Western Australia (1996) 186 CLR 140, 232

(McHugh J) (‘McGinty’). See also Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516, 544–5 (Gummow J) (‘Roxborough’).

46 Part II — Domestic Sources

… 4 See Roxborough (2001) 208 CLR 516, 544–5 (Gummow J), 579

(Kirby J). Gummow J relied upon the comments of McHugh J in McGinty (1996) 186 CLR 140, 232.

… 9 See also Victoria v Commonwealth (1996) 187 CLR 416

(‘Industrial Relations Act Case’).

2.1.15 Omitting the Case Name

Rule The case name should be omitted in a footnote citation if the case name appears in full (or as a defined short title in accordance with rule 2.1.14) in the sentence accompanying the footnote.

Examples In Thomas v Mowbray,12 the control order regime established under the schedule to the Criminal Code Act 1995 (Cth) survived a constitutional challenge.

Toohey J, in Mabo v Queensland [No 2], also discussed fiduciary obligations.14

But: In Al-Kateb, several High Court Justices discussed the role of international law in Australian constitutional interpretation.20

__________ 12 (2007) 233 CLR 307. … 14 (1992) 175 CLR 1, 204. … 20 Al-Kateb v Godwin (2004) 219 CLR 562.

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2.2 Year and Volume

Rule Volumes of law report series are organised either by year or by volume number.

Where the volumes of a law report series are organised by volume number, the year in which the decision was handed down (often, but not necessarily, the year in which the case was reported) should appear in parentheses ‘( )’.

Where the volumes of a law report series are organised by year, the year of the volume in which the case is reported should appear in square brackets ‘[ ]’. If more than one volume is produced in a single year, the volume number should be included between the year and the report series abbreviation.

Examples R v Lester (2008) 190 A Crim R 468.

Sent v Andrews (2002) 6 VR 317. [Not: … (2002–03) 6 VR 317]

King v King [1974] Qd R 253.

Rowe v McCartney [1976] 2 NSWLR 72.

Notes On occasion, a law report series may change from being organised by year to volume number or vice versa. The system used for the volume in which the relevant case appears should be used.

Where a law report series organised by year contains decisions that were handed down before the year of the volume, the year of the volume (not that of the decision) should nevertheless be included. The discrepancy between the year of the volume and the year of decision may be explained discursively if it is important.

48 Part II — Domestic Sources

2.3 Law Report Series

2.3.1 Authorised/Unauthorised and Generalist/Specific Report Series

Rule 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. Where a case has not been reported in an authorised report series, an unauthorised report series should be cited.

Generalist (unauthorised) report series should be cited in preference to subject-specific (unauthorised) report series, which sometimes include extracts rather than the full decision.

If the only report of a case is a partial report and the relevant part is not extracted, the case should be cited as unreported (in accordance with rule 2.8).

Examples Balchin v Anthony (2008) 22 NTLR 52. [Not: … [2008] NTSC 2 (4 January 2008).]

Rural Press Pty Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53. [Not: … (2003) 203 ALR 217.]

Mar Mina (SA) Pty Ltd v City of Marion (2008) 163 LGERA 24.

Scott v CAL No 14 Pty Ltd [No 2] (2009) 256 ALR 512. [Not: … (2009) 52 MVR 45.]

But: Tobacco Control Coalition Inc v Philip Morris (Australia) Ltd [2000] FCA 1004 (27 July 2000) [69], [74]. [Not: … [2000] ATPR (Digest) ¶46-205.]

Note Authorised reports usually indicate that they are the ‘authorised reports’ of the court in the opening pages of each volume. Judgments reproduced therein have been approved by a judge or their associate.

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2.3.2 Abbreviations for Report Series

Rule The name of the report series should be abbreviated using the abbreviations contained in the Appendix to this Guide. The name of the report series should not appear in italics.

The following are the most commonly cited Australian authorised (or preferred) report series:

Court/Jurisdiction Report Series Years

High Court of Australia CLR 1903– Federal Court of Australia FCR 1984–

ACTR (in ALR) 1973–2008 Australian Capital Territory ACTLR 2007– SR (NSW) 1901–59 NSWR 1960–70

New South Wales

NSWLR 1971– NTR (in ALR) 1979–91 Northern Territory NTLR 1990– QSR 1902–57 Queensland Qd R 1958– SALR 1899–1920 South Australia SASR 1921– Tas LR 1904–40 Tas SR 1941–78

Tasmania

Tas R 1979– VLR 1875–1956 Victoria VR 1957– WALR 1898–1958 Western Australia WAR 1958–

Commonly used unauthorised Australian report series are: ALR, ALJR, FLR, Fam LR, NTR.

Names of report series that do not appear in the Appendix should be written out in full and not italicised.

Example Arnold v Regent Press Pty Ltd [1957] QSR 211.

50 Part II — Domestic Sources

2.4 Starting Page

Rule The first page of the case should appear after the abbreviated form of the report series. If the case is identified by a unique reference rather than a starting page, that reference (including accompanying symbols) should be used instead of a starting page number.

Examples Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104.

Borg v Commissioner, Department of Corrective Services [2002] EOC ¶93-198.

Overlook Management BV v Foxtel Management Pty Ltd [2002] Aust Contract Reports ¶90-143, 91 970.

Note CCH report series often use a unique reference instead of a starting page.

2.5 Pinpoint Reference

Rule Pinpoint references should adhere to rules 1.1.5–1.1.6 and be preceded by a comma and a space. Where the pinpoint reference is to the first page of the report, the page number should be repeated. In accordance with rule 1.1.5, a series of pinpoint references should be separated by commas rather than ‘and’.

Where cases are paginated, pinpoint references should be to pages. Page numbers should adhere to rule 1.12.1.

Where a report has both page numbers and paragraph numbers, page numbers should always be included in a pinpoint reference. In accordance with rules 1.1.5–1.1.6, paragraph numbers may be included in addition.

Where pages and paragraph numbers are included in pinpoint references, both a page number and a paragraph number should be included after ‘ibid’ unless exactly the same page(s) and paragraph(s) are referred to in the ‘ibid’ citation.

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Examples Re Mackenzie Grant & Co (1899) 1 WALR 116, 116.

De L v Director-General, Department of Community Services (NSW) [No 2] (1997) 190 CLR 207, 211, 221–2.

Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd [1999] ATPR ¶41-703, 43 014.

Total Ice Pty Ltd v Maroochy Shire Council [2009] 1 Qd R 82, 89–92 [18]–[19], 93 [24].

At trial, it was held that ‘the appellants had not proved that they had suffered any loss or damage.’49 On appeal, it was pointed out that the appellants may have suffered loss ‘if the outgoings for which they were liable included sums of a kind which had not been taken into account in forming the estimate they were given.’50 This was so even though the appellants may have received value for their payments.51 Yet the case had been dismissed at first instance.52

__________ 49 Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388,

402 [29]. 50 Ibid 404 [32]. 51 Ibid. 52 Ibid 404 [33].

2.6 Court

Rule Generally, the name of the court should not be included in a citation of a reported case. However, where it is important to identify the court and the court is not otherwise apparent (for instance, from the report series or the text), the name of the court may be included in parentheses, following any pinpoint references and parenthetical clauses.

The jurisdiction of the court should not be indicated where it is otherwise apparent (as is the case for authorised state law reports).

52 Part II — Domestic Sources

Examples 22 Aldrick v EM Investments (Qld) Pty Ltd [2000] 2 Qd R 346 (Court of Appeal).

23 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2001) 188 ALR 493, 498 (emphasis added) (Queensland Court of Appeal).

2.7 Parallel Citations

Rule Parallel citations should not be used in citations of Australian cases.

In accordance with rule 2.3.1, the most authoritative available version of a case should be cited.

Example Perre v Apand Pty Ltd (1999) 198 CLR 180. [Not: Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; [1999] HCA 36.]

Note Parallel citations are used in citations of the United Kingdom Nominate Reports (see rule 23.1.3) and early United States Supreme Court decisions (see rule 24.1.3).

2.8 Unreported Decisions

2.8.1 Decisions with a Medium Neutral Citation

Example Quarmby v Keating

[2009] TASSC 80 (9 September

2009) [11]

Element Case Name

Year Unique Court

Identifier Judgment Number

Full Date Pin- point

Rule Unreported decisions with a medium neutral citation (a citation system that does not depend on publisher or medium) should be cited as shown above. However, a medium neutral citation should only be used where the medium neutral citation was allocated by the court itself. Where this is not the case, unreported judgments should be cited in accordance with rule 2.8.2.

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Case names should adhere to rule 2.1. Pinpoint references should appear as paragraph numbers, and should adhere to rules 1.1.5–1.1.6. There should be no punctuation between the full date and any pinpoint.

The following are the current preferred unique court identifiers for Australian Supreme and superior Commonwealth courts, and the years for which the courts allocated judgment numbers themselves:

Court Unique Court Identifier

Years

High Court of Australia HCA 1998– High Court of Australia — Special Leave Dispositions

HCASL 2008–

Federal Court of Australia FCA 1999– FCA 1999–2001 Federal Court of Australia — Full Court FCAFC 2002–

Family Court of Australia FamCA 1998– FamCA 1998–2007 Family Court of Australia — Full Court FamCAFC 2008–

Supreme Court of the Australian Capital Territory (including Full Court)

ACTSC 1998–

Australian Capital Territory Court of Appeal ACTCA 2002– Supreme Court of New South Wales NSWSC 1999– New South Wales Court of Appeal NSWCA 1999– New South Wales Court of Criminal Appeal NSWCCA 1999– Supreme Court of the Northern Territory (including Full Court)

NTSC 1999–

Northern Territory Court of Appeal NTCA 2000– Northern Territory Court of Criminal Appeal NTCCA 2000– Supreme Court of Queensland QSC 1998– Queensland Court of Appeal QCA 1998– Supreme Court of South Australia (including Full Court until end of 2009)

SASC 1999–

Supreme Court of South Australia — Full Court

SASCFC 2010–

Supreme Court of Tasmania (including Full Court until end of 2009)

TASSC 1999–

54 Part II — Domestic Sources

Tasmanian Court of Criminal Appeal TASCCA 2010– Supreme Court of Tasmania — Full Court TASFC 2010– Supreme Court of Victoria VSC 1998– Victorian Court of Appeal VSCA 1998– Supreme Court of Western Australia WASC 1999– Western Australian Court of Appeal (including Full Court until end 2004)

WASCA 1999–

A list of current, commonly used Australian unique court identifiers is set out in Table A.

Examples Maguire v Leather [2009] HCASL 48 (12 March 1999).

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (23 September 2009) [27].

R v De Gruchy [2006] VSCA 10 (9 February 2006) [4]–[5] (Vincent JA).

Notes In accordance with rule 2.3.1, a case should generally not be cited as unreported if it has been reported.

Although some online databases are allocating medium neutral designations retrospectively, such designations have not been used in past citations of unreported cases. To avoid confusion and to unambiguously identify decisions, medium neutral citations should not be used to cite decisions prior to the years listed above.

2.8.2 Decisions without a Medium Neutral Citation

Example Barton v Chibber

(Unreported, Supreme Court

of Victoria, Hampel J,

29 June 1989)

Element Case Name

Unreported Description

Court Judge(s) Full Date

Pin- point

Rule Unreported decisions without a medium neutral citation allocated by the court should be cited as shown above.

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Case names should adhere to rule 2.1. Judges’ names should adhere to rule 2.9.1.

Pinpoint references are generally to page numbers and refer to the copy of the judgment itself (as delivered by the court). If paragraph numbers are used instead of or in addition to page numbers, they should appear in square brackets (in accordance with rules 1.1.5– 1.1.6). There should be no punctuation between the closing parenthesis after the full date and any pinpoint.

Example Ross v Chambers (Unreported, Supreme Court of the Northern Territory, Kriewaldt J, 5 April 1956) 77–8.

Notes In accordance with rule 2.3.1, a case should generally not be cited as unreported if it has been reported.

Older unreported judgments are sometimes compiled by courts into bound volumes, but even if citing an unreported case from such a volume, there is no need to refer to the volume or include a starting page.

2.9 Identifying Judges and Counsel

2.9.1 Identifying Judicial Officers

Rule

Where appropriate, the judicial officer(s) whose judgment is being cited may be identified in parentheses after a pinpoint reference. However, a judicial officer should not be included in a footnote citation if their identity is otherwise apparent. ‘Per’ should not be used. Judicial officers’ names should appear in accordance with rule 1.14.4.

The following abbreviations of judicial offices in Australia should appear after judicial officers’ names in the text and in citations (including where the name appears at the start of a sentence). However, those titles marked with an asterisk (*) should always appear in full before judicial officers’ names.

56 Part II — Domestic Sources

Judicial Office Abbreviation/Title

Acting Chief Justice ACJ Acting Justice of Appeal AJA Acting Justices of Appeal AJJA Acting Justice AJ Acting Justices AJJ Acting President AP Associate Justice AsJ Auxiliary Judge AUJ Chief Judge Administrator CJA Chief Judge at Common Law CJ at CL Chief Judge in Equity CJ in Eq Chief Judge of the Commercial Division CJ Comm D Chief Justice CJ Commissioner Commissioner* Deputy Chief Justice/District Court Judge DCJ Federal Magistrate FM Judge Judge* Judicial Registrar JR Justice of Appeal JA Justices of Appeal JJA Justice J Justices JJ Magistrate Magistrate* Master Master* President P Senior Judge Administrator SJA Senior Judge SJ Senior Judges SJJ Senior Puisne Judge SPJ Vice-President V-P

Examples Kartinyeri v Commonwealth (1998) 195 CLR 337, 383 (Gummow and Hayne JJ).

Ruddock v Vadarlis (2001) 110 FCR 491, 495 [4]–[7] (Black CJ).

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Vigolo v Bostin (2002) 27 WAR 121, 130 (Sheppard AUJ).

R v Merritt (2004) 59 NSWLR 557, 567 [35]–[38] (Wood CJ at CL).

Ottobrino v Espinoza (1995) 14 WAR 373, 377 (Commissioner Buss).

Re Zoudi (2006) 14 VR 580, 587–9 [24]–[28] (Maxwell P, Buchanan, Nettle, Neave and Redlich JJA).

R v Hoxha (Unreported, Victorian Court of Appeal, Charles, Callaway JJA and Vincent AJA, 1 November 1995).

2.9.2 Subsequent Elevation

Rule When identifying a judge, their judicial office at the time of the decision should be used. The phrase ‘as he/she then was’ should not be included.

2.9.3 Statements Made during Argument

Rule When citing a statement made during argument, the words ‘during argument’ should be included in separate parentheses after the judge’s or counsel’s name. ‘Arguendo’ should not be used.

When referring to statements by counsel during argument, their initials (if included in the report) and any designation as Queen’s Counsel (‘QC’), King’s Counsel (‘KC’) or Senior Counsel (‘SC’) should be included.

Examples Stephens v Abrahams [No 2] (1903) 29 VLR 229, 239 (Williams J) (during argument), 242–3 (Isaacs KC) (during argument).

Combet v Commonwealth (2005) 224 CLR 494, 497 (S J Gageler SC) (during argument).

58 Part II — Domestic Sources

2.10 Case History

Rule The subsequent history of a case may be indicated after a citation of the case by including the abbreviations ‘affd’ for ‘affirmed’ or ‘revd’ for ‘reversed’, preceded by a comma and followed by the citation of the subsequent decision.

If the case name remains the same or the parties’ names are merely reversed, the name of the subsequent decision should be omitted.

Examples Perpetual Trustees Victoria Ltd v Ford (2008) 70 NSWLR 611, 640–2 (Harrison J), revd [2009] NSWCA 186 (8 July 2009).

Harkins v Butcher (2002) 55 NSWLR 558, affd Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592.

2.11 Quasi-Judicial Decisions

2.11.1 Administrative Decisions

Rule Administrative decisions and determinations (including those of tribunals) should generally be cited in the same way as reported and unreported cases, except that:

• often ‘and’ is used to separate party names, rather than ‘v’ — this should appear as it does in the decision itself;

• the title of the decision may be a number or code, rather than party names;

• tribunal members may be referred to by a title other than ‘Mr’ or ‘Ms’ (such as ‘Dr’, ‘Prof’, etc);

• the titles ‘Member’, ‘Deputy Member’ and ‘Senior Member’ (in addition to those in rule 2.9.1, which should be used for judicial officers sitting in tribunals) are often used for administrative decision-makers and should appear before the name of the decision-maker (if they have no other title); and

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• the initials or first names of tribunal members should be omitted, unless they are necessary to avoid ambiguity (in accordance with rule 1.14.4).

Examples Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247.

McMahon v Boroondara City Council [2002] VCAT 626 (5 July 2002) [26]–[28] (Member Avery).

Application by AAPT Ltd [No 2] [2009] ACompT 6 (9 September 2009) [6.1]–[6.5] (Finkelstein J, Member Davey and Prof Round).

Dr Gerber stated: when dealing with rugby footballers, it seems to me to be a fruitless exercise to parse and analyse their every utterance in an attempt to comprehend their meaning. In the hands of rugby league footballers, the spoken word — like the game itself — is rough at the best of times …21

__________ 21 AAT Case 7422 (1991) 22 ATR 3450, 3456 [28]. He later

commented (at 3458 [45]) that: Whatever the capital gains tax provisions sought to achieve is still firmly locked in the mind of the parliamentary draftsman who, for purposes of comprehension and enlightenment, might as well have enacted Pt IIIA in Swahili.

Note Administrative decisions are often reported in the ALD, ATR and state administrative decision series. Many administrative tribunals have medium neutral unique ‘court’ identifiers, some of which are listed in Table A.

2.11.2 Arbitrations

Rule Arbitral decisions should be cited as follows:

Case Name ( Award Description , Forum , Case/Award No Number , Full Date ) Pinpoint .

60 Part II — Domestic Sources

Only information appearing on the arbitral decision should be included. If the parties’ names are omitted from an arbitral decision, the other elements should be included but should not appear in parentheses. ‘Case/Award’ should be replaced by the appropriate designation used by the relevant forum. If there is no forum, the arbitrator’s name may be included instead.

Where the parties’ names are included, there should be no punctuation between the closing parenthesis after the full date and any pinpoint. If the parties’ names are not included, a comma should separate the full date and any pinpoint. Pinpoint references should be to pages, paragraphs or both (and should adhere to rules 1.1.5–1.1.6).

Where an arbitral decision is reproduced in a report series, book or periodical, a citation of the reproduction should be included after the above information, preceded by ‘reported in’. A starting page should be included. Pinpoints should be to the page numbers of the reproduction, and may also include paragraph numbers in addition.

Examples Sandline International Inc v Papua New Guinea (Award, Sir Edward Somers, Sir Michael Kerr and Sir Daryl Dawson, 9 October 1998) [10.2].

Beckman Instruments Inc v Overseas Private Investment Corporation (Award and Opinion, American Arbitration Association Commercial Arbitration Tribunal, Case No 16 199 00209 87G, 20 February 1988) reported in (1988) 27 ILM 1260, 1263.

Meiki Co Ltd v Bucher-Guyer SA (Preliminary Award, International Chamber of Commerce, Case No 2114 of 1972, 10 October 1972) reported in Sigvard Jarvin and Yves Derains (eds), Collection of ICC Arbitral Awards: 1974–1985 (Kluwer, 1990) 49, 51.

Final Award, Netherlands Arbitration Institute, Case No 1930, 12 October 1999 reported in (2001) 26 Yearbook — Commercial Arbitration 181, 184 [5]–[6].

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2.12 Transcripts of Proceedings

2.12.1 General Rule

Rule Transcripts of proceedings should be cited as follows:

Transcript of Proceedings, Case Name ( Court , Proceeding Number , Judge(s) , Full Date of Proceedings )

Pinpoint .

A proceeding number (the number assigned by the court to the matter) should be included only if it appears on the transcript. The names of all judges hearing the matter should be included after the proceeding number.

Pinpoint references should be to page numbers or line numbers (where line numbering is continuous across a transcript). If a pinpoint is included, a speaker’s name may be included after it (in accordance with rule 2.9) but ‘(in argument)’ should not be included.

Examples Transcript of Proceedings, Celano v Swan (County Court of Victoria, 09/0867, Judge Lacava, 27 August 2009) 11 (S M Petrovich).

Transcript of Proceedings, R v MSK (Supreme Court of New South Wales, Hidden J, 18 May 2005) 112, 143, 151, 156.

2.12.2 High Court of Australia from July 2003

Rule Transcripts of proceedings in the High Court of Australia with ‘HCATrans’ numbers appearing on the transcript itself should be cited as follows:

Transcript of Proceedings, Case Name [ Year ] HCATrans Number ( Full Date of Proceedings ) Pinpoint .

Pinpoint references should be to line numbers. If a pinpoint is included, a speaker’s name may be included after it (in accordance with rules 2.9.1–2.9.2), but ‘(in argument)’ should not be included.

Transcripts of other High Court proceedings should be cited according to rule 2.12.1.

62 Part II — Domestic Sources

Examples Transcript of Proceedings, Ruhani v Director of Police [2005] HCATrans 205 (19 April 2005).

Transcript of Proceedings, Mulholland v Australian Electoral Commission [2004] HCATrans 8 (12 February 2004) 2499–517 (Callinan J and J B R Beach QC), 2589–93 (McHugh J).

Note High Court transcripts contain ‘HCATrans’ numbers from July 2003.

2.13 Submissions in Cases

Rule Submissions in cases should be cited as follows:

Party Name , ‘ Title of Submission ’, Submission in Case Name , Proceeding Number , Full Date , Pinpoint .

A title of submission and a proceeding number (the number assigned by the court to the matter) should be included only if they appear in the submission.

Pinpoints may be to page numbers, paragraph numbers or both (see rules 1.1.5–1.1.6).

Example Attorney-General (Cth), ‘Outline of Submissions of the Attorney-General of the Commonwealth as Amicus Curiae’, Submission in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd, NSD 1519/2004, 25 January 2005, [10], [20]–[22], [28].

2.14 Subsequent References

Rule ‘Ibid’ should be used for all materials in this chapter (in accordance with rule 1.4.1).

In other subsequent references, citations should appear in full each time a source is referred to. However, for citations of cases and quasi- judicial decisions, a short title may be used in place of the parties’ names (in accordance with rule 2.1.14).

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‘Above n’ should not be used for any materials in this chapter.

Examples 14 Moore v Haynes (2008) 23 NTLR 112, 116–17 [19]–[20] (‘Moore’).

15 Ibid 118 [24]. … 19 Moore (2008) 23 NTLR 112, 121 [34]. [Not: Moore, above n 14,

121 [34].] 20 Transcript of Proceedings, NV Philips Gloeilampenfabrieken v

Mirabella International Pty Ltd (High Court of Australia, No S73 of 1994, Mason CJ, 23 November 1994) 3 (R J Ellicott QC).

21 Ibid (Mason CJ). His Honour commented that it would ‘be a sacrifice’ not to hear counsel’s arguments.

3 Legislative Materials

3.1 Statutes (Acts of Parliament)

Example Crimes Act 1958 (Vic) s 3

Element Title Year Jurisdiction Pinpoint

Rule 3.1.1 3.1.2 3.1.3 3.1.4–3.1.6

3.1.1 Title

Rule A citation of an Australian Act of Parliament should begin with the short title of the Act in italics. The long title of the Act should be used only if the Act does not contain a short title.

Titles should appear as they do in the statute book, subject to chapter 1. In particular:

• punctuation should adhere to rule 1.6.1 (so full stops should not be used in abbreviations); and

• capitalisation should adhere to rule 1.7.

Where multiple Acts have the same title but contain different numbers in their short titles (for example, ‘(No 1)’ and ‘(No 2)’), the number should be included and should appear in parentheses.

Examples Evidence Act 1995 (NSW).

Social Welfare Ordinance 1964 (NT).

Law and Justice Legislation Amendment Act (No 2) 1992 (Cth).

Law and Justice Legislation Amendment Act (No 4) 1992 (Cth).

Note Statutes of the Australian Capital Territory and the Northern Territory were previously referred to as ordinances. However, these ordinances became known as Acts after the ACT (in 1988) and the NT (in 1978) attained self-government.

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3.1.2 Year

Rule The year in which the Act was originally passed should appear in italics following the title. The year should be included whether or not the Act includes it in the short title.

Example Meteorites Act 1973 (Tas). [Not: Meteorites Act 1973 (Tas).]

Notes Citations of an Act refer to that Act as amended (and consolidated). Regardless of when a particular provision was introduced, the year included should be that of original enactment. Generally, a principal Act rather than an amending Act should be cited (but see rule 3.8).

For the ACT and the NT, the year is that in which the original ordinance (which may subsequently have become an Act) was promulgated.

3.1.3 Jurisdiction

Rule An abbreviated form of the jurisdiction in which the Act was passed should appear in parentheses following the year. The jurisdiction should not be italicised.

The following abbreviations should be used for Australian jurisdictions:

Jurisdiction Abbreviation

Commonwealth Cth Australian Capital Territory ACT New South Wales NSW Northern Territory NT Queensland Qld South Australia SA Tasmania Tas Victoria Vic Western Australia WA

Examples Misrepresentation Act 1972 (SA).

Charter of Human Rights and Responsibilities Act 2006 (Vic).

66 Part II — Domestic Sources

3.1.4 Pinpoint Reference

Rule Pinpoint references to Acts usually comprise an abbreviation and a number, separated by a space.

Pinpoint references should use the following abbreviations (in the text and in citations), except where the pinpoint begins a sentence:

Designation Abbreviation Plural Abbreviation

Appendix app Appendices apps Article art Articles arts Chapter ch Chapters chs Clause cl Clauses cls Division div Divisions divs Paragraph para Paragraphs paras Part pt Parts pts Schedule sch Schedules schs Section s Sections ss Sub-clause sub-cl Sub-clauses sub-cls Subdivision sub-div Subdivisions sub-divs Sub-paragraph sub-para Sub-paragraphs sub-paras Subsection sub-s Subsections sub-ss

The words ‘item’ and ‘items’ may be used to refer to items in a table or schedule, or numbered paragraphs in an amending Act. They should not be abbreviated.

Numbered or lettered subsections should appear in parentheses immediately following the section number. The section number and subsection number should not be separated by a space (for example, ‘s 3(a)’, not ‘s 3 (a)’).

In references to a section and a subsection, a paragraph and a sub-paragraph, etc, the abbreviation that corresponds to the highest ‘level’ of the section or paragraph etc in the pinpoint should be used (for example, ‘s 31(1)’, not ‘sub-s 31(1)’).

Where multiple combinations of an abbreviation and a number are needed to form one pinpoint reference, there should be no comma between each abbreviation–number combination (for example, ‘pt III div 2’, not ‘pt III, div 2’).

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Where an Act uses a decimal numbering system (often in the form Chapter . Part . Section ), pinpoints should contain the whole of the decimal number preceded by the abbreviation for the lowest ‘level’ of section, part, chapter, etc, cited (for example, ‘s 2.3.5’, not ‘ch 2.3.5’).

Examples s 2 s 108 sub-s (3) pt V s 5(1) [Not: s5(1)] s 2(3) [Not: s 2 (3)] ch III s 14(1)(a) s 28(1)(a)(i) pt 7 div 3 sub-div 8 s 13 [Not: pt 2 s 13] cl 14(3)(a)

Despite there being no requirement to show fault, actions under Trade Practices Act 1974 (Cth) pt VA have been rare.

She drew attention to sub-s (1). Subsection (1) provides that ‘a registered trade mark is personal property’.

The judge referred to s 8(3) in argument. [Not: … sub-s 8(3) …]

Social Security (Administration) Act 1999 (Cth) s 123TE.

Aboriginal and Torres Strait Islander Act 2005 (Cth) pt 3A div 2.

Civil Liability Act 2003 (Qld) ch 2 pt 1 div 4.

Crimes at Sea Act 1999 (Vic) sch 1 cl 2.

Aboriginal Land Rights (Northern Territory) Amendment Act 2006 (Cth) sch 1 item 46.

A New Tax System (Goods and Services Tax) Act 1999 (Cth) s 38-10(1) items 1–2.

Gambling Regulation Act 2003 (Vic) s 3.2.1.

Legal Profession Act 2004 (Vic) pt 2.3.

Income Tax Assessment Act 1997 (Cth) s 20-110(1)(a).

Notes The most specific pinpoint that is appropriate should be included. Thus ‘pt 3 div 7’ is appropriate where speaking generally of that division, but ‘s 58’ is appropriate where dealing with an individual section. Because section numbering is usually continuous throughout an Act, it is unnecessary to indicate chapters, parts, divisions, etc, when citing a section.

68 Part II — Domestic Sources

Some recent taxation statutes contain sections in the form of a division number immediately followed by a hyphen and a section number (for example, ‘s 26-52’). A hyphen (not an en-dash) should be used between the division and section numbers in such pinpoints.

3.1.5 Multiple Pinpoint References

Rule The plural abbreviation of the highest ‘level’ of sections, subsections, etc, cited should precede multiple pinpoints (see rule 3.1.4).

Consecutive pinpoints should be separated by an en-dash (–) (for example, ‘sub-ss (2)–(3)’). Hyphens (-) should not be used (in accordance with rule 1.1.6).

Non-consecutive pinpoints should each be separated by a comma and a space (for example, ‘paras (3), (5)’). The word ‘and’ should not be used to separate the final two pinpoints (in accordance with rule 1.1.5).

Spans of section numbers should adhere to rule 1.12.1. In spans of alphanumeric sections, divisions, parts, etc, of an Act, the whole section number etc should be repeated (for example, ‘ss 22A–22D’, not ‘ss 22A–D’).

Where an Act uses a decimal numbering system, each section number, part number, etc, in spans and in non-consecutive pinpoints should be written out in full (for example, ‘ss 3.2.5–3.2.7’, not ‘ss 3.2.5–7’).

Examples ss 2–3 ss 42–9 ss 5, 7, 9 [Not: … 7 and 9] ss 6(7)(b)–(d) [Not: s 6(7)(b)–(d)] sub-ss (2)–(7) ss 29(2)–(5) [Not: sub-ss 29(2)–(5)] sub-paras (4)–(8) ss 3(a)–(c) [Not: ss 3(a), (b), (c)] cls (1)–(3) ss 92(1), (4), (7) divs 3–4 ss 8(2), (5)(a)–(b) [Not: ss 8(2), 8(5)(a)–(b)] ss 5, 7, 9, 28

HSI, as an ‘interested person’, sought a declaration and injunction against Kyodo for contravening ss 229–30 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

Unpublished works are dealt with in sub-ss (2)–(3).

Liquor Act 2007 (NSW) ss 5(1)(a)–(b).

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Fair Trading (Reinstatement of Regulations) Act 2008 (Tas) ss 4(2)(a)–(b), (4), 5(b).

Gas Supply Act 2003 (Qld) ch 2 pt 1 div 3 sub-div 2, ch 3 pt 1.

Unlawful Assemblies and Processions Act 1958 (Vic) ss 5–6, 10–12, 26–9. [Not: … 26–29.]

Wrongs Act 1958 (Vic) ss 28F–28G, 28J. [Not: … ss 28F–G, J.]

See Gambling Regulation Act 2003 (Vic) s 3.2.1. Sections 3.2.1–3.2.2 allow the Commission to authorise gambling. [Not: … Sections 3.2.1–2 …]

3.1.6 Definitions

Rule Unnumbered definitions should be cited as follows:

s Section Number (definition of ‘ Defined Term ’)

‘s Section Number ’ should be replaced with the schedule number (or other portion of an Act) containing the definition as appropriate.

If there are multiple paragraphs in the definition and a particular paragraph is referred to, a reference to that paragraph should be included, preceded by ‘para’. No comma should separate the defined term and ‘para’.

If definitions are contained in numbered sections of an Act, each definition should be cited as a normal section (in accordance with rules 3.1.4–3.1.5).

Examples Property Law Act 1958 (Vic) s 3 (definition of ‘legal practitioner’).

Evidence Act 2008 (Vic) Dictionary pt 1 (definition of ‘civil proc- eeding’).

Greenhouse Gas Storage Act 2009 (Qld) sch 2 (definition of ‘GHG well’ para (1)). [Not: … (definition of ‘GHG well’, para (1)).]

Corporations Act 2001 (Cth) s 9 (definition of ‘administrator’ para (a)(i)). [Not: … (Cth) s 9(a)(i).]

Human Rights Act 2004 (ACT) s 5. [Not: … s 5 (definition of ‘human rights’).]

70 Part II — Domestic Sources

Note Definitions are usually contained in a single section or a schedule of an Act, but are usually not individually numbered. When Acts are amended, new terms are often inserted in alphabetical order between existing terms.

3.2 Australian Constitutions

Rule The Constitution of the Commonwealth of Australia may be cited as the Australian Constitution, the Commonwealth Constitution, or simply the Constitution if there is no ambiguity as to which constitution is being cited.

Where necessary, the Australian Constitution may also be referred to within its enacting legislation as:

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 9.

Constitutions of the Australian states should be cited as normal statutes.

Examples Australian Constitution s 51(ii).

Australian Capital Territory (Self-Government) Act 1988 (Cth) s 22(1); Northern Territory (Self-Government) Act 1978 (Cth) s 6; Constitution Act 1902 (NSW) s 5; Constitution Act 1867 (Qld) s 2; Constitution Act 1934 (SA) s 5; Constitution Act 1934 (Tas) s 9(1); Constitution Act 1975 (Vic) s 16; Constitution Act 1889 (WA) s 2(1).

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3.3 Delegated Legislation

Example Police Regulations 2003 (Vic) reg 6

Element Title Year Jurisdiction Pinpoint

3.3.1 General Rule

Rule Delegated legislation (for example, regulations, rules and orders) should be cited in the same manner as primary legislation (in accordance with rule 3.1).

Examples Heritage Regulation 2006 (ACT) reg 5(1).

County Court (Court Fees) Order 2001 (Vic) O 3.

3.3.2 Pinpoint Reference

Rule The abbreviations in rule 3.1.4 as well as the following additional abbreviations should be used to refer to pinpoints in delegated legislation:

Designation Abbreviation Plural Abbreviation

Order O Orders OO Regulation reg Regulations regs Rule r Rules rr Sub-regulation sub-reg Sub-regulations sub-regs Sub-rule sub-r Sub-rules sub-rr

Examples Migration Regulations 1994 (Cth) regs 2.01–2.02.

Uniform Civil Procedure Rules 2005 (NSW) rr 3.4(1)(b), (2A)(a)–(b).

Federal Court Rules 1979 (Cth) OO 3, 5, 7 r 4A.

Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 3.01.

High Court Rules 2004 (Cth) r 42.02.2.

72 Part II — Domestic Sources

Notes In some court rules, for example the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and the High Court Rules 2004 (Cth), the numbering of the rules is continuous, and the decimal rule number includes the number of the order. In such cases, only a rule number need be included as a pinpoint (for example, ‘r 8.01’). An order number is not needed, but may be used when referring generally to the order as a whole (for example, ‘O 8’).

In other court rules, for example the Federal Court Rules 1979 (Cth), both the order number and the specific rule within the order (if the latter is cited) must be included (for example, ‘O 9 r 4’). In lists of pinpoints to such court rules, it may be necessary to repeat the order number to unambiguously identify the pinpoints cited.

3.4 Quasi-Legislative Materials

3.4.1 Gazettes

Rule Gazettes should be cited as follows:

Jurisdiction , Gazette Title , No Gazette Number , Full Date , Pinpoint .

Where multiple notices appear in the same gazette or on the same page, the author and title of the notice (if available) should also be included as follows:

Author , ‘ Title of Notice ’ in Jurisdiction , Gazette Title , No Gazette Number , Full Date , Starting Page , Pinpoint .

Examples Commonwealth, Gazette: Special, No S 489, 1 December 2004.

‘Australian Capital Territory Teaching Service’ in Australian Capital Territory, Australian Capital Territory Gazette, No 1, 24 May 1989, 3.

Minister for Lands (WA), ‘Land Acquisition and Public Works Act 1902 — Native Title Act 1993 (Commonwealth) — Notice of Intention to Take Land for a Public Work’ in Western Australia, Western Australian Government Gazette, No 27, 18 February 1997, 1142, 1143.

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3.4.2 Orders and Rulings of Government Instrumentalities and Officers (ASIC Class Orders, Taxation Rulings, etc)

Rule Orders and rulings of government instrumentalities and officers that are not appropriate to cite as delegated legislation (see rule 3.3) and are not published in a gazette (see rule 3.4.1) should be cited as follows:

Instrumentality/Officer , Instrument Title , Document Number , Full Date , Pinpoint .

Only the official title of an officer (not their name) should be included. Where a government department or an officer promulgates the instrument, the jurisdiction should be included in parentheses after the name of the department or officer if it is not obvious or otherwise apparent (using the abbreviations in rule 3.1.3).

A document number should be included only if it appears on the instrument. The document number should be reproduced using any abbreviations as they appear on the instrument (adhering to rule 1.6.1, so full stops should not be used in abbreviations).

Examples Australian Taxation Office, Income Tax: Carrying on a Business as a Professional Artist, TR 2005/1, 12 January 2005.

Australian Securities and Investments Commission, ASIC Class Order — Credit Rating Agencies, CO 05/1230, 15 December 2005, para 4.

Minister for Immigration and Citizenship (Cth), Direction [No 41] — Visa Refusal and Cancellation under Section 501, 3 June 2009.

3.4.3 Legislation Delegated to Non-Government Entities (ASX Listing Rules, Professional Conduct Rules, etc)

Rule Delegated legislation and quasi-legislative instruments issued by non- government entities should be cited in the same way as orders and rulings of government instrumentalities and officers (in accordance with rule 3.4.2) as far as possible.

74 Part II — Domestic Sources

Terms designating the issuing body as a company (for example, ‘Pty’, ‘Ltd’, ‘Co’, ‘Inc’) should be omitted from its name, as should ‘the’ at the start of the name.

Where such delegated legislation does not include a document number or is frequently updated, the full date may be replaced with the date of the version cited (or the effective date of the provision cited) as follows:

Issuing Body , Title (at Full Date ) Pinpoint .

Examples Australian Securities Exchange, Listing Rules (at 11 January 2010) r 1.3.3.

Law Society of New South Wales, Professional Conduct and Practice Rules (at 11 December 1995) r 2.1.

Victorian Bar, Practice Rules — Rules of Conduct and Compulsory Continuing Legal Education Rules (at 1 August 2005) rr 24–5. [Not: The Victorian Bar Inc, …]

Note If a source has provisions with different effective dates, the effective date of the provision cited should be included.

3.4.4 Court Practice Directions and Practice Notes

Rule If a court practice direction or practice note is reproduced in a report series, it should be cited as follows:

Court , Practice Direction/Note No Number — Title of Practice Direction/Note Citation of Report Series ,

Pinpoint .

The citation of the report series should adhere to rule 2.3. Pinpoint references should be to pages or pages and paragraphs (in accordance with rule 2.5).

Court practice directions and practice notes not published in a report series should be cited as follows:

Court , Practice Direction/Note No Number — Title of Practice Direction/Note , Full Date , Pinpoint .

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Examples Supreme Court of Victoria, Practice Note No 5 of 2006 — Criminal Division: Case Management by Section 5 Hearings (2006) 16 VR 702, 703.

High Court of Australia, Practice Direction No 3 of 2006 — Amendment of Practice Direction No 1 of 2000, 5 September 2006.

Federal Court of Australia, Practice Note No 1 — Appeals to a Full Court, 3 January 2008, pt B.

Note Practice directions and practice notes are often reproduced in the issuing court’s authorised report series and should be cited from there where available.

3.5 Bills

Rule Bills should be cited in the same manner as Acts, except the title and year should not be italicised. ‘Clause’ and ‘sub-clause’ are usually the appropriate pinpoint designations.

Examples Corporations Amendment Bill (No 1) 2005 (Cth).

Carbon Pollution Reduction Scheme Bill 2009 (Cth) cl 83.

Migration Amendment (Immigration Detention Reform) Bill 2009 (Cth) sch 1 item 9.

3.6 Explanatory Memoranda, Statements and Notes

Rule Explanatory Memoranda (also known in some jurisdictions as Explanatory Statements or Explanatory Notes) should be cited as follows:

Explanatory Memorandum, Citation of Bill Pinpoint .

76 Part II — Domestic Sources

‘Explanatory Memorandum’ should be replaced with ‘Explanatory Statement’ or ‘Explanatory Note(s)’ where appropriate. The citation of the Bill should appear in accordance with rule 3.5. Pinpoints should be to pages or pages and paragraphs of the memorandum, statement or note (and should adhere to rules 1.1.5–1.1.6).

Example Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic).

Explanatory Notes, Adoption Bill 2009 (Qld) 5–6, 29.

Note Chapter 6 contains rules on citing other parliamentary documents. Second reading speeches are sections of parliamentary debates and should be cited in accordance with rule 6.1.1. Bills digests and alert digests should be cited in accordance with rule 6.1.5.

3.7 Order of Parallel Australian Statutes and Bills

Rule When citing equivalent Acts or Bills across multiple Australian jurisdictions, Commonwealth Acts or Bills should appear first, followed by state and territory Acts or Bills in alphabetical order of jurisdiction.

Parallel Acts and Bills should be ordered in this way even if legislation from all Australian jurisdictions is not cited, unless there is good reason to do otherwise (for example, where the order is important to meaning).

Examples Trade Practices Act 1974 (Cth) s 52(1); Fair Trading Act 1992 (ACT) s 12(1); Fair Trading Act 1987 (NSW) s 42(1); Consumer Affairs and Fair Trading Act 1990 (NT) s 42(1); Fair Trading Act 1989 (Qld) s 38(1); Fair Trading Act 1987 (SA) s 56(1); Fair Trading Act 1990 (Tas) s 14(1); Fair Trading Act 1999 (Vic) s 9(1); Fair Trading Act 1987 (WA) s 10(1).

Oaths and Affirmations Act 1984 (ACT) s 14(1); Oaths Act 1939 (NT) s 8; Oaths Act 1867 (Qld) s 5; Oaths Act 1936 (SA) s 13; Oaths, Affidavits and Statutory Declarations Act 2005 (WA) s 5(1).

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3.8 Legislative History: Amendments, Repeals and Insertions

Rule Where it is appropriate or important, the legislative history of an Act or provision may be indicated by referring to both the original and the amending legislation. The following expressions should be used, preceded by a comma, to link the two Acts (thereby indicating the legislative history):

• ‘as amended by’/‘later amended by’/‘amending’;

• ‘as repealed by’/‘repealing’; and

• ‘as inserted by’/‘inserting’.

The term used will depend upon which Act amended, inserted or repealed the other Act or provision. They are not interchangeable.

‘Amending/repealing/inserting’ and ‘as amended by/as repealed by’ should also be used for Bills.

Examples Anti-Discrimination Act 1977 (NSW) s 4(1), as amended by Anti-Discrimination (Amendment) Act 1994 (NSW) sch 1 item 1.

Anti-Discrimination (Amendment) Act 1994 (NSW) sch 1 item 1, amending Anti-Discrimination Act 1977 (NSW) s 4(1).

Crimes Act 1914 (Cth) s 24A(g), as repealed by Anti-Terrorism Act (No 2) 2005 (Cth) sch 7 item 2.

Anti-Terrorism Act (No 2) 2005 (Cth) sch 7 item 2, repealing Crimes Act 1914 (Cth) s 24A(g).

Crimes Act 1958 (Vic) s 3B, as inserted by Crimes (Homicide) Act 2005 (Vic) s 3.

Crimes (Homicide) Act 2005 (Vic) s 3, inserting Crimes Act 1958 (Vic) s 3B.

78 Part II — Domestic Sources

Family Assistance and Other Legislation Amendment (2008 Budget and Other Measures) Bill 2009 (Cth) sch 2 item 1, repealing Social Security (Administration) Act 1999 (Cth) s 144(ka).

Social Security (Administration) Act 1999 (Cth) s 144(ka), repealed by Family Assistance and Other Legislation Amendment (2008 Budget and Other Measures) Bill 2009 (Cth) sch 2 item 1.

3.9 Subsequent References

3.9.1 Legislative Materials in Their Entirety

Rule ‘Ibid’ should be used for all materials in this chapter (in accordance with rule 1.4.1).

In other subsequent references, citations should appear in full each time a source is referred to. However:

• Acts (see rule 3.1);

• delegated legislation (see rule 3.3);

• quasi-legislative materials except for gazettes (see rules 3.4.2– 3.4.4); and

• Bills (see rule 3.5)

may be given a short title the first time they are cited. The short title should adhere to rule 1.4.3 (so should be italicised and placed within single inverted commas and parentheses following the initial citation). The short title may be placed in the text or in the footnotes. Subsequent references to these sources should appear as follows:

Short Title Pinpoint .

‘Above n’ should not be used for any materials in this chapter.

Examples 9 Historic Shipwrecks Act 1976 (Cth). 10 Ibid s 7. 11 Ibid s 9. [Not: Ibid 9.]

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12 Northern Territory National Emergency Response Act 2007 (Cth) s 3 (‘NTNER Act’).

… 16 NTNER Act s 5. [Not: NTNER Act, above n 12, s 5.] 17 Australian Securities and Investments Commission, Covered Short

Sales, CO 08/751, 22 September 2008 (‘Covered Short Sales Class Order’).

… 19 Covered Short Sales Class Order paras 3–4.

3.9.2 Individual Parts of Legislative Materials

Rule A short title may be given to a portion of an Act, a piece of delegated legislation or a Bill (in accordance with rule 1.4.3). The short title should be placed after the pinpoint to the relevant portion.

In subsequent references, pinpoints following the short title refer to sections, items, etc, within that portion of an Act. (For example, if the citation ‘Trade Practices Act 1974 (Cth) sch pt 1 (‘Competition Code’)’ is included, a subsequent reference to ‘Competition Code s 45’ is a reference to the s 45 within the Competition Code — that is, within sch pt 1 of the Act.)

In accordance with rule 1.4.3, only one short title should be introduced in a single citation.

Example 16 Criminal Code Act 1995 (Cth) sch 1 (‘Criminal Code’). … 22 Criminal Code s 80.2(5).

Note Short titles for a portion of an Act will often be appropriate for schedules of Acts, where the rest of the Act operates as ‘machinery’ to apply the schedule.

Journal A

rticles

4 Journal Articles

Andrew Kenyon,

‘Problems with Defamation Damages?’

(1998) 24 Monash

University Law Review

70 , 74

Examples Martin

Dockray,

‘Why Do We Need Adverse Possession?’

[1985] Conveyancer and Property

Lawyer 272 , 275

Element Author Title Year Volume

and Issue

Journal Page Pin- point

Rule 4.1 4.2 4.3 4.4 4.5 4.6 4.7

4.1 Author

4.1.1 Signed Articles

Rule The name of the author of a journal article should appear in accordance with chapter 1. In particular:

• names should adhere to rules 1.14.1–1.14.2 (so should appear exactly as they do on the source, subject to other general rules, and initials should be separated by a space);

• authors’ titles should adhere to rule 1.14.1 (so all titles should be omitted except for ‘Sir’, ‘Dame’ and peerage titles);

• punctuation should adhere to rule 1.6.1 (so full stops should not be used after initials or in abbreviations);

• names of bodies should adhere to rule 1.14.3;

• names of judges should adhere to rule 1.14.4; and

• names of multiple authors should adhere to rule 1.14.2.

Examples Justice Michael Kirby, ‘Is Legal History Now Ancient History?’ (2009) 83 Australian Law Journal 31.

82 Part III — Secondary Sources

Gary Edmond et al, ‘Law’s Looking Glass: Expert Identification Evidence Derived from Photographic and Video Images’ (2009) 20 Current Issues in Criminal Justice 337. [Not: Gary Edmond, Katherine Biber, Richard Kemp and Glenn Porter, …]

4.1.2 Unsigned Articles

Rule For unsigned journal articles, the type of article (such as ‘Comment’ or ‘Note’) should appear in place of the author’s name.

Example Note, ‘Unfixing Lawrence’ (2005) 118 Harvard Law Review 2858.

Note ‘Comments’ and ‘Notes’ are common in American law journals. They are usually short, anonymous pieces written by students.

4.2 Title

Rule The title of a journal article should appear (unitalicised) within single quotation marks as it does on the first page of the article. It should appear in accordance with chapter 1. In particular:

• punctuation should adhere to rule 1.6.1 (so full stops should not be used after initials or in abbreviations);

• capitalisation should adhere to rule 1.7; and

• italicisation should adhere to rule 1.8.2 (so titles of cases, Acts, treaties, etc, in the article title should be italicised).

Where there is no punctuation in the source separating the title from a subtitle, a colon or an em-dash should be inserted.

Examples Helen Rhoades, ‘The Dangers of Shared Care Legislation: Why Australia Needs (Yet More) Family Law Reform’ (2008) 36 Federal Law Review 279.

Antonio Cassese, ‘The Nicaragua and Tadić Tests Revisited in the Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18 European Journal of International Law 649, 651. [Not: … ‘The Nicaragua and Tadić Tests Revisited …]

Australian Guide to Legal Citation 83

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rticles

4.3 Year

Rule For journals organised by volume number, the year of publication should appear in parentheses.

For journals organised by year, the relevant year should appear in square brackets.

Examples Ted Schneyer, ‘Some Sympathy for the Hired Gun’ (1991) 41 Journal of Legal Education 11.

Jessica Palmer, ‘Chasing a Will-o’-the-Wisp? Making Sense of Bad Faith and Wrongdoers in Change of Position’ [2005] Restitution Law Review 53.

Note For journals organised by volume number, where a volume spans multiple years (for example, the volume is for 1992–93), the year included should be that in which the article cited was published. For journals organised by year, where a volume spans multiple years, the span of years should be included in square brackets (and should appear in accordance with rule 1.13.2).

4.4 Volume and Issue

Rule For journals organised by volume number, the volume number should appear after the year, preceded by a space. (Journals organised by year have no volume number.)

If all issues within a volume of a journal are consecutively paginated, the issue number should be omitted.

If the issues within a volume are not consecutively paginated:

• for journals organised by volume number, the issue number should appear in parentheses immediately after the volume number (for example, ‘33(2)’); and

• for journals organised by year, the issue number should appear in parentheses, preceded by a space, after the year (for example, ‘[1999] (4)’).

84 Part III — Secondary Sources

If one bound edition of a journal is designated as containing multiple issues (and under this rule the issue numbers must be included), the issues should be separated by an en-dash and enclosed inside parentheses after the volume number or year (as appropriate) (for example, ‘21(2–3)’ and ‘[1957] (5–6)’).

Where an issue identifier other than a number is used (for example, a season or a month) and the issue identifier must be included (that is, pagination is non-consecutive), this should appear preceded by a space and enclosed in parentheses after the volume number or year (for example, ‘31 (Winter)’ and ‘[1982] (Summer)’).

Examples Heather Douglas, ‘Assimilation and Authenticity: The “Ordinary Aboriginal Person” and the Provocation Defence’ (2006) 27 Adelaide Law Review 199, 199, 201–2.

W M C Gummow, ‘Carrying on Passing Off’ (1974) 7 Sydney Law Review 224, 224. [Not: … (1974) 7(2) Sydney Law Review 224 …]

Jeremy Masters, ‘Easing the Parting’ (2008) 82(11) Law Institute Journal 68, 69–71.

John Kleinig, ‘Paternalism and Personal Integrity’ [1983] (3) Bulletin of the Australian Society of Legal Philosophy 27.

James Boyle, ‘The Second Enclosure Movement and the Construction of the Public Domain’ (2003) 66(1–2) Law and Contemporary Problems 33, 37. [Not: … (2003) 66(1)–(2) …]

Notes The issues within a volume are ‘consecutively paginated’ where issues subsequent to the first continue the pagination (that is, the numbering of subsequent issues does not begin again at page 1).

Where issues are published very frequently and/or are commonly indexed by full date, it may be more appropriate to use a newspaper- style citation (see rule 6.5).

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4.5 Journal

Rule The full title of the journal (as it appears on the title page) should appear in italics, following the year and any volume or issue number.

The journal title should not be abbreviated.

‘The’ should not be included at the start of a journal title.

Examples University of New South Wales Law Journal [Not: UNSWLJ nor The University of New South Wales L J]

Columbia Law Review [Not: Colum L Rev nor The Columbia Law Review]

4.6 Starting Page

Rule The number of the first page of an article should follow the title of the journal or periodical. No punctuation should separate the starting page from the title.

For forthcoming articles, the starting page should be replaced with ‘(forthcoming)’.

Examples Janet Halley, ‘Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict’ (2008) 9 Melbourne Journal of International Law 78.

Michelle Foster, ‘Non-Refoulement on the Basis of Socio-Economic Deprivation: The Scope of Complementary Protection in International Human Rights Law’ [2009] New Zealand Law Review (forthcoming).

86 Part III — Secondary Sources

4.7 Pinpoint Reference

Rule Pinpoint references should appear after the starting page, preceded by a comma and a space. They should adhere to rules 1.1.5–1.1.6. Generally, pinpoint references should be to page numbers. (Paragraph numbers may be included in addition to page numbers, but this is rarely necessary.)

Where the pinpoint reference is to the first page of an article, the page number should be repeated.

Examples Marjorie Florestal, ‘Is a Burrito a Sandwich? Exploring Race, Class, and Culture in Contracts’ (2008) 14 Michigan Journal of Race and Law 1, 3 n 6, 13–15, 47–51, 58.

Gordon Goldberg, ‘Certain Contemporary Confusions Concerning Consideration, a Common Count and Conversion’ [2000] Restitution Law Review 189, 189.

4.8 Articles Published in Parts

Rule If an article has been published in multiple parts, a full citation should be given for each part cited.

‘(Pt Number )’ should be inserted between the title and the year (regardless of whether the other parts are cited). Any reference to the part within the title of the article should be omitted.

Examples R N Gooderson, ‘Claim of Right and Dispute of Title’ (Pt 1) [1966] Cambridge Law Journal 90; R N Gooderson, ‘Claim of Right and Dispute of Title’ (Pt 2) [1966] Cambridge Law Journal 216.

Jacobus tenBroek, ‘California’s Dual System of Family Law: Its Origin, Development, and Present Status’ (Pt 1) (1964) 16 Stanford Law Review 257. [Not: … ‘California’s Dual System of Family Law: Its Origin, Development, and Present Status — Part I’ …]

Australian Guide to Legal Citation 87

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rticles

4.9 Articles Published in Electronic Journals

Rule Articles from electronic journals should only be cited where a printed edition (of the journal or the article cited) does not exist.

Articles appearing in journals that are only available online should, as far as possible, be cited in the same manner as articles in printed journals. However, it will often not be possible to include a volume number, issue number or starting page. Pinpoint references should be to page numbers or paragraph numbers if available (in accordance with rules 1.1.5–1.1.6), but otherwise may be to numbered parts of the article.

A URL should always follow the citation to electronic articles. The URL should adhere to rule 6.15.6 (so the date of retrieval should not be included).

Examples Kate Lewins, ‘What’s the Trade Practices Act Got to Do with It? Section 74 and Towage Contracts in Australia’ (2006) 13(1) eLaw Journal: Murdoch University Electronic Journal of Law 58, 59 <https://elaw.murdoch.edu.au/archives/issues/2006/1/eLaw_Lewins_ 13_2006_05.pdf>.

William van Caenegem, ‘Copyright Liability for the Playing of “Music on Hold” — Telstra Corporation Ltd v Australasian Performing Right Association Ltd’ (1996) 2 High Court Review [9]–[12] <http://www.austlii.edu.au/au/journals/HCRev/1996/9.html>.

Note If an article appears in a printed journal, even where a similar version is available online, the printed journal should be cited instead, in accordance with the other rules in this chapter.

88 Part III — Secondary Sources

4.10 Symposia

Rule Where a symposium is referred to as a whole, it should be cited in the same manner as an article in a journal, except that:

• ‘Symposium’ should appear instead of an author’s name;

• the title of the symposium should appear in inverted commas; and

• the starting page should be that on which the first article in the symposium (or any symposium title page or introductory section) begins.

Individual articles within a symposium should be cited as regular journal articles (in accordance with the other rules in this chapter).

Example Symposium, ‘Contemporary Human Rights in Australia’ (2002) 26 Melbourne University Law Review 251.

B ooks

5 Books

Example Malcolm N Shaw, International Law

(Cambridge University Press, 6th ed, 2008)

578

Element Author Title Publication Details Pinpoint

Rule 5.1 5.2 5.3 5.4

5.1 Author

5.1.1 General Rule

Rule The name of the author of a book should appear in accordance with chapter 1. In particular:

• names should adhere to rules 1.14.1–1.14.2 (so should appear exactly as they do on the source, subject to other general rules, and initials should be separated by a space);

• authors’ titles should adhere to rule 1.14.1 (so all titles should be omitted except for ‘Sir’, ‘Dame’ and peerage titles);

• punctuation should adhere to rule 1.6.1 (so full stops should not be used after initials or in abbreviations);

• names of bodies should adhere to rule 1.14.3;

• names of judges should adhere to rule 1.14.4; and

• names of multiple authors should adhere to rule 1.14.2.

Examples Ronald Dworkin, Law’s Empire (Harvard University Press, 1968).

Lorelle Frazer, Scott Weaven and Owen Wright, Asia-Pacific Centre for Franchising Excellence, Franchising Australia 2008 — Survey (2008).

Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford University Press, 2nd ed, 2004).

Paul Rishworth et al, The New Zealand Bill of Rights (Oxford University Press, 2003).

90 Part III — Secondary Sources

5.1.2 Editors

Rule The name of the editor of a book should appear in the same manner as an author’s name and should be followed by ‘(ed)’ for one editor or ‘(eds)’ for multiple editors.

Examples R G Frey (ed), Utility and Rights (Basil Blackwell, 1985).

Jason W Neyers, Erika Chamberlain and Stephen G A Pitel (eds), Emerging Issues in Tort Law (Hart Publishing, 2007).

John Bowers et al (eds), Blackstone’s Employment Law Practice 2009 (Oxford University Press, 2009).

5.2 Title

Rule The title of a book should appear in italics as it appears on the title page of the book. It should appear in accordance with chapter 1. In particular:

• punctuation should adhere to rule 1.6.1 (so full stops should not be used after initials or in abbreviations); and

• capitalisation should adhere to rule 1.7. Where there is no punctuation on the title page separating the title from a subtitle, a colon or an em-dash should be inserted.

Examples Alistair Pound and Kylie Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Lawbook, 2008).

Prue Vines, Law and Justice in Australia — Foundations of the Legal System (Oxford University Press, 2nd ed, 2009).

Australian Guide to Legal Citation 91

B ooks

5.3 Publication Details

5.3.1 Publisher

Rule A brief version of the publisher’s name should be included in parentheses after the title. It should be followed by a comma.

Sufficient information to identify the publisher (and no more) should be included. The publisher’s name should appear as on the title page (or in the publication information), except that:

• ‘the’ at the start of the name should be omitted;

• abbreviations related to the publisher’s corporate status (‘Pty’, ‘Ltd’, ‘Co’, etc) should be omitted;

• geographical designations (‘Australia’, ‘A/Asia’, etc) in company names should be omitted, unless they are an important part of the name; and

• subdivisions within companies should be omitted.

A publisher’s name should only be included if it appears in the book. A publisher’s name should not be included where the publisher’s and the author’s names are the same.

Examples Ngaire Naffine, Law’s Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart Publishing, 2009).

David Brown and Meredith Wilkie (eds), Prisoners as Citizens: Human Rights in Australian Prisons (Federation Press, 2002). [Not: … The Federation Press …]

Clive Turner, Australian Commercial Law (Lawbook, 29th ed, 2009). [Not: … Lawbook Co … nor … Lawbook Company …]

Martin Davies and Ian Malkin, Torts (LexisNexis Butterworths, 5th ed, 2008). [Not: … LexisNexis Butterworths Australia …]

McGill Law Journal, Canadian Guide to Uniform Legal Citation (Carswell Thomson, 4th ed, 1998). [Not: … Carswell Thomson Professional Publishing …]

92 Part III — Secondary Sources

Elizabeth Ellis, Principles and Practice of Australian Law (Thomson Reuters, 2nd ed, 2009). [Not: … Thomson Reuters (Professional) Australia Ltd …]

Martin Vranken, Death of Labour Law? Comparative Perspectives (Melbourne University Press, 2009).

Law Institute of Victoria, Legal Directory 2006 (2005). [Not: … Legal Directory 2006 (Law Institute of Victoria, 2005).]

Notes Usually, it is sufficient to include only the first two or three words of a publisher’s name, especially where the publisher is readily identifiable.

The name of a printer of a book (that is not also its publisher) should not be included, even if no publisher appears on the book.

A publisher’s name is often unnecessary for documents where a government or government department is the author, as these are usually self-published.

5.3.2 Edition Number and Date of First Publication

Rule Where there are multiple editions of a book and an edition number (for example, ‘2nd edition’) appears in the book being cited, the edition number should be included after the publisher’s name. It should appear as follows:

Ordinal Edition Number ed,

The ordinal number of the edition should adhere to rule 1.12.1 (so the letters in the ordinal number should appear in superscript).

For older books, the year of first publication and the year of the publication being cited may be included instead of an edition number. This should appear as follows:

first published Year of First Publication , Year of Edition Cited ed)

Information concerning reprints should not be included. Where no edition number is indicated in the book, no edition number should be included.

Australian Guide to Legal Citation 93

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Examples Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law & the Environment (Oxford University Press, 3rd ed, 2009).

Thomas Hobbes, Leviathan (Clarendon Press, first published 1651, 1909 ed).

Sir Matthew Hale, Historia Placitorum Coronae (London Professional Books, first published 1736, 1971 ed) vol 1, 635.

George Orwell, Animal Farm: A Fairy Story (Secker and Warburg, first published 1945, 1998 ed) 23.

Note Where the book does not contain an edition number but has been republished in multiple years, the year of first publication and year of the publication being cited should generally replace an edition number. This is typically the case for books published prior to the 20th century or popular books republished by several publishers.

5.3.3 Revised Editions

Rule Where a book is a ‘revised’, ‘expanded’ or ‘updated’ edition but the revision does not have a new edition number, this should be indicated by including ‘revised ed’:

• for a revision of a numbered edition, after the edition number and preceded by a space (for example, ‘2nd revised ed’); or

• for an unnumbered revised edition (generally a revision of the first edition), after the publisher’s name and preceded by a comma.

Examples E J Cohn and W Zdzieblo, Manual of German Law (Oceana Publications, 2nd revised ed, 1968) vol 1.

Peter Birks, An Introduction to the Law of Restitution (Clarendon Press, revised ed, 1989) 18.

Note An unnumbered revised edition is generally a revision of the first edition of a work and should be designated ‘revised ed’. ‘1st revised ed’ should be used only where the edition number appears in the book.

94 Part III — Secondary Sources

5.3.4 Publication Year

Rule The year of publication should appear following the name of the publisher and any edition number.

A completed multi-volume work that was published over a range of years should include the first and final years of publication as a span (in accordance with rule 1.13.1). If publication is still in progress, the first year and an en-dash should appear.

Examples Andrew D Mitchell and Jennifer L Beard, International Law: In Principle (Thomson Reuters, 2009).

B Edgeworth, C J Rossiter and M A Stone, Property Law: Cases and Materials (LexisNexis Butterworths, 7th ed, 2004).

Jonathan I Charney, Lewis M Alexander and Robert W Smith (eds), International Maritime Boundaries (Martinus Nijhoff, 1993–2002).

Jeremy Bentham, Rationale of Judicial Evidence (Garland Publishing, first published 1802–12, 1978 ed) vol 1.

Pamela Andre (ed), Documents on Australian Foreign Policy 1937–49 (Department of Foreign Affairs and Trade, 1975–) vol XVI, 159.

5.4 Pinpoint Reference

5.4.1 General Rule

Rule A pinpoint reference should be preceded by a space. There should be no punctuation between the closing parenthesis (containing the publication details) and the pinpoint reference.

Pinpoint references should adhere to rules 1.1.5–1.1.6. If a book has page numbers, pinpoint references should be to page numbers. If a book has page numbers and paragraphs, pinpoint references may be to page numbers and paragraph numbers. If the book has only numbered paragraphs, a pinpoint reference should be to a paragraph.

When referring to a numbered chapter of a book, ‘chapter’ should be abbreviated ‘ch’ in footnote citations.

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Examples Margaret C Jasper, Home Mortgage Law Primer (Oceana Publications, 3rd ed, 2009) 70–7. [Not: … (Oceana Publications, 3rd ed, 2009), 70–7.]

Charles Mitchell and Stephen Watterson, Subrogation: Law and Practice (Oxford University Press, 2007) 9 [2.02].

James Edelman and Elise Bant, Unjust Enrichment in Australia (Oxford University Press, 2006) ch 4.

5.4.2 Multi-Volume Books

Rule If the book contains more than one volume, the number of the volume cited should appear after the publication details, preceded by ‘vol’.

A comma should separate the volume number from any further page or paragraph pinpoint references (for example, ‘vol 4, 466’ refers to page 466 in volume 4).

Examples Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice (Grotius Publications, 1986) vol 2, 430.

J Guéron et al (eds), The Economics of Nuclear Power Including Administration and Law (Pergamon Press, 1956–59) vol 1, 396.

Note Where the volumes of a book were published in different years, the span of years over which all volumes were published should be included in the publication information, in accordance with rule 5.3.4.

96 Part III — Secondary Sources

5.5 Chapters in Edited Books

Example Peter Millett,

‘Proprie- tary

Restitu- tion’

Simone Degeling

and James

Edelman (eds),

Equity in Commer- cial Law

(Law- book, 2005)

123 , 138

Element Author Chapter Title

in Editor Book Title

Publi- cation Details

Starting Page

Pin- point

Rule Chapters in edited books should be cited as shown above.

The chapter title should be enclosed in single inverted commas. There should be no other punctuation between the chapter title and ‘in’. The starting page is that on which the chapter cited begins.

Where multiple chapters from an edited collection are cited, the details of the edited collection should be included in full in the first reference to each chapter.

Subsequent (‘above n’) references to a chapter from an edited collection should use the names of the authors of the particular chapter and refer to the footnote in which the chapter is first cited.

Examples 22 Meg Russell, ‘Reform of the House of Lords: Lessons for Bicameralism’ in Nicholas Aroney, Scott Prasser and J R Nethercote (eds), Restraining Elective Dictatorship: The Upper House Solution? (University of Western Australia Press, 2008) 119.

… 43 Janet Ransley, ‘Illusions of Reform: Queensland’s Legislative

Assembly since Fitzgerald’ in Nicholas Aroney, Scott Prasser and J R Nethercote (eds), Restraining Elective Dictatorship: The Upper House Solution? (University of Western Australia Press, 2008) 248, 252. [Not: … in Aroney, Prasser and Nethercote (eds), above n 22, 248, 252.]

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… 45 Russell, above n 22, 122. 46 Ransley, above n 43, 255. [Not: Ransley, above n 22, 255.]

5.6 Translations

Example Jean- Paul

Sartre,

Being and Nothingness: An Essay on Phenomenol-

ogical Ontology

(Hazel E Barnes trans,

Methuen, 1958)

151

[trans of: L’Etre et le Néant (first published

1943)]

Element Original Author

Translation Title

Translator Translation Publication Information

Pin- point

Original Title and Year

Rule Translations should be cited as shown above.

The original title may be included in square brackets after any pinpoint. However, if the translation title appears in the original language, it is not necessary to include the original title.

The year in which the original work (used by the translator) was first published, or its edition number and year of publication, may also be included in square brackets after any pinpoint. If the original title is included, the year (or year and edition number) should appear in parentheses after the original title. If the original title is not included, the year (or year and edition number) should appear in square brackets (without parentheses).

In accordance with rule 1.7, titles in a foreign language should be capitalised in accordance with convention in that language.

Examples The Qur’an (Tarif Khalisi trans, Harvard University Press, 1972).

98 Part III — Secondary Sources

Friedrich Nietzsche, Thus Spoke Zarathustra: A Book for Everyone and No One (R J Hollingdale trans, Penguin Books, 1961) 210–13 [trans of: Also sprach Zarathustra: Ein Buch für Alle und Keinen (first published 1883–85)].

Hans-Georg Gadamer, Truth and Method (Garrett Barden and John Cumming trans, Crossroad, 1975) [trans of: Wahrheit und Methode: Grundzüge einer philosophischen Hermeneutik (2nd ed, 1965)].

Emmanuel Levinas, Entre nous (Michael B Smith and Barbara Harshav trans, Athlone Press, 1998) 27 [first published 1991].

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6 Other Sources

6.1 Government Documents

6.1.1 Parliamentary Debates

Rule Parliamentary debates (or ‘Hansard’) should be cited as follows:

Jurisdiction , Parliamentary Debates, Chamber , Full Date of Debate , Pinpoint ( Name of Speaker ).

Names of speakers should adhere to rule 1.14. If a speaker’s name is included, their first and last names should appear. ‘MP’, ‘MLC’, ‘MLA’, ‘Senator’ and other designations indicating membership of Parliament should not be included in the speaker’s name. If it is relevant, the position of the speaker within a ministry or shadow ministry (or any part of their position which is relevant) may be included after their name, preceded by a comma.

Examples Commonwealth, Parliamentary Debates, Senate, 18 June 2008, 2642–4 (Bob Brown).

Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1289–95 (Rob Hulls, Attorney-General).

The second reading speech for the Migration Amendment Bill 1983 (Cth) was incorporated by reference in the Senate.23

__________ 23 Commonwealth, Parliamentary Debates, Senate, 7 September

1983, 373–4 (John Button). [Not: … 373–4 (John Button, Minister for Industry and Commerce).]

6.1.2 Parliamentary Papers

Rule Parliamentary papers should be cited as follows:

Jurisdiction , Title , Parl Paper No Number ( Year ) Pinpoint .

100 Part III — Secondary Sources

Example Commonwealth, Australia’s Aid Program in the Pacific: Joint Standing Committee on Foreign Affairs, Defence and Trade, Parl Paper No 211 (2007) 24.

6.1.3 Parliamentary Research Papers, Notes and Briefs

Rule Parliamentary research papers, notes and briefs should be cited as follows:

Author , ‘ Title ’ (Research Paper No Number , Parliamentary Library, Legislature , Year ) Pinpoint .

Where the document is a research note or brief, ‘Research Paper’ should be modified accordingly. Where the document is prepared by a body other than a parliamentary library, that body’s name should replace ‘Parliamentary Library’.

Examples Scott Bennett, ‘The Rise of the Australian Greens’ (Research Paper No 8, Parliamentary Library, Parliament of Australia, 2008) 15.

Jeffrey Robertson, ‘North Korean Nuclear Issues and the Role of Parliamentary Diplomacy’ (Research Note No 23, Parliamentary Library, Parliament of Australia, 2007).

6.1.4 Parliamentary Committee Reports

Rule Parliamentary committee reports should be cited as follows:

Committee , Legislature , Title ( Year ) Pinpoint .

Where a committee is from one chamber of Parliament and this is not apparent from the committee’s name, the name of the chamber should be added to the start of the committee’s name.

Pinpoint references should adhere to rules 1.1.5–1.1.6. Pinpoints should be to page numbers (if available). Where a committee report has page and paragraph numbers, paragraph numbers may be included in addition to page numbers. Where a report has only page numbers or paragraph numbers, pinpoints should be to page numbers or paragraph numbers as appropriate.

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Examples Law Reform Committee, Parliament of Victoria, Inquiry into Alternative Dispute Resolution and Restorative Justice (2009) 26.

Senate Legal and Constitutional References Committee, Parliament of Australia, Administration and Operation of the Migration Act 1958 (2006) 280–1 [9.30]–[9.38]. [Not: Legal and Constitutional References Committee, Senate, Parliament of Australia …]

6.1.5 Bills Digests and Alert Digests

Rule Bills digests, alert digests and similar documents should be cited as follows:

Author , Title , No Digest/Alert Number of Year , Full Date , Pinpoint .

Where a parliamentary committee is the author, the committee’s name should adhere to rule 6.1.4. Where a government department is the author and its jurisdiction is not apparent from its name, the abbreviated jurisdiction may be included in parentheses after the department name (in accordance with rule 1.14.3).

Pinpoint references should adhere to rule 6.1.4 (so should include page numbers and may include paragraph numbers in addition).

Examples Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Alert Digest, No 9 of 2007, 13 August 2007, 11.

Legislation Review Committee, Parliament of New South Wales, Legislation Review Digest, No 13 of 2008, 10 November 2008, 6.

Department of Parliamentary Services (Cth), Bills Digest, No 75 of 2008–09, 27 January 2009, 8.

102 Part III — Secondary Sources

6.1.6 Evidence to Parliamentary Committees

Rule Evidence to a parliamentary committee given during a hearing can generally be found in a ‘Committee Hansard’ publication. It should be cited as follows:

Evidence to Committee , Legislature , Location , Full Date , Pinpoint ( Name of Speaker ).

The committee’s name should adhere to rule 6.1.4. Pinpoint references should adhere to rules 1.1.5–1.1.6 and should generally be to page numbers.

The position of the person giving evidence may be included after their name where it is relevant.

Example Evidence to Senate Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Canberra, 26 February 2007, 12 (Angus Houston, Air Chief Marshal).

Note The page numbers in a Committee Hansard are often preceded by an abbreviation of the Committee name (for example, ‘SL&C’). Such abbreviations should be omitted from pinpoint references.

6.1.7 Royal Commission Reports

Rule Royal commission reports should be cited as follows:

Jurisdiction , Name of Royal Commission , Title ( Year ) Pinpoint .

The jurisdiction is that of the enactment creating the Royal Commission. Where a Royal Commission is commissioned by multiple jurisdictions, all should be included in alphabetical order.

In accordance with rule 5.4.2, where a report contains multiple volumes the volume number should be included in pinpoint references (even where the volumes are consecutively paginated). Pinpoint references should adhere to rule 6.1.4 (so should include page numbers and may include paragraph numbers in addition).

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Examples Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 5, 31 [36.3.12].

Commonwealth and New South Wales, Royal Commission of Inquiry into the Activities of the Nugan Hand Group, Final Report (1985).

New South Wales, Royal Commission into Drug Trafficking, Report (1979) vol 2, 555.

6.1.8 Law Reform Commission Reports

Rule Law reform commission reports should be cited as follows:

Name of Law Reform Commission , Title , Report/Discussion Paper No Number ( Year ) Pinpoint .

The type of publication (‘Report’, ‘Discussion Paper’, ‘Issues Paper’, etc) should be included as appropriate.

In accordance with rule 5.4.2, where a report, discussion paper, etc, contains multiple volumes, the volume number should be included in pinpoint references (even where the volumes are consecutively paginated). Pinpoint references should adhere to rule 6.1.4 (so should include page numbers and may include paragraph numbers in addition).

Examples Victorian Law Reform Commission, Civil Justice Review, Report No 14 (2008).

Law Reform Commission, Reform of Evidence Law, Discussion Paper No 16 (1980) 4.

Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No 108 (2008) vol 1, 339 [7.7].

Note The Australian Law Reform Commission (‘ALRC’) was, prior to 1996, called the ‘Law Reform Commission’. Citations of ALRC reports should use the name of the body at the time of the report.

104 Part III — Secondary Sources

6.1.9 Australian Constitutional Convention Debates

Rule Debates of the Australasian federal conventions should be cited as follows:

Title , Location , Full Date , Pinpoint ( Name of Speaker ).

Pinpoint references should adhere to rule 1.1.5–1.1.6 and be to page numbers.

Names of speakers should adhere to rules 1.14 and 6.1.1. In particular:

• first and last names should be included; and

• all titles (such as ‘the Hon’, ‘Mr’ and ‘Dr’) except ‘Sir’, ‘Dame’ and peerage titles should be omitted.

Examples Official Record of the Debates of the Australasian Federal Convention, Sydney, 2 September 1897, 19 (Edmund Barton).

Official Report of the National Australasian Convention Debates, Adelaide, 29 March 1897, 206–7 (Sir John Downer).

Note The title of the relevant volume of debates should be included as it appears on the source. The titles vary slightly.

6.2 Submissions to Government Inquiries, Committees and Agencies

Rule Submissions to government inquiries, committees, agencies, etc, should be cited as follows:

Author , Submission No Number to Government Body , Name of Inquiry , Full Date , Pinpoint .

For submissions to parliamentary committees or inquiries, ‘Government Body’ should be replaced with the committee’s name and legislature, which should adhere to rule 6.1.4. Where the government body does not allocate a number to submissions, ‘No Number ’ should be omitted. Where the name of the inquiry is not included on the submission, it should be omitted.

Australian Guide to Legal Citation 105

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Where a full date is not available, as much of the full date as appears should be included.

Pinpoint references should adhere to rule 6.1.4 (so should include page numbers and may include paragraph numbers in addition).

Examples Mobil Oil Australia, Submission No 25 to Australian Competition and Consumer Commission, Inquiry into the Price of Unleaded Petrol, 27 July 2007, 6–7.

Human Rights Law Resource Centre, Submission No 21 to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Anti-Terrorism Laws Reform Bill 2009, 11 September 2009, 3 [6].

Victorian Automobile Chamber of Commerce, Submission to Road Safety Committee, Parliament of Victoria, Inquiry into Driver Distraction, October 2005, 6–7.

Australian Indigenous Doctors’ Association, Submission No 187 to Northern Territory Emergency Response Review, 22 August 2008, [17].

Note Submissions of parties in cases should be cited in accordance with rule 2.13.

6.3 Legal Encyclopedias

Rule Legal encyclopedias should be cited as follows:

Publisher , Title of Encyclopedia , vol Volume Number (at Full Date ) Title Number Name of Title ,

‘ Chapter Number Name of Chapter ’ [ Paragraph ].

The publisher’s name should adhere to rule 5.3.1.

Where a legal encyclopedia indicates the date of last update of a chapter, this date should be included. Otherwise, the date of retrieval should be included.

106 Part III — Secondary Sources

Pinpoint references should adhere to rules 1.1.5–1.1.6 and should be to paragraphs. Where a legal encyclopedia is viewed online, the volume number should be omitted.

Examples LexisNexis, Halsbury’s Laws of Australia, vol 15 (at 25 May 2009) 235 Insurance, ‘2 General Principles’ [235-270].

Lawbook, The Laws of Australia (at 31 August 2000) 24 International Trade, ‘2 Foreign Investment’ [24.2.87].

6.4 Looseleaf Services

Rule Looseleaf services should be cited as follows:

Publisher , Title , vol Volume Number (at Most Recent Service Number for Pinpoint ) Pinpoint .

The publisher’s name should adhere to rule 5.3.1. Where an author of a looseleaf service is clearly identified, the author’s name should be included before the publisher, followed by a comma.

Pinpoints should adhere to rules 1.1.5–1.1.6 and should be to paragraphs. However, where a looseleaf service uses a paragraph symbol (¶), this should immediately precede paragraph numbers (which should then not appear in square brackets).

Where a looseleaf service is viewed online, the volume number and the comma after the title should be omitted.

Examples LexisNexis Butterworths, Civil Procedure: Victoria, vol 1 (at Service 231) [21.01.1].

Marcus S Jacobs, Thomson Reuters, International Commercial Arbitration in Australia: Law and Practice, vol 1 (at Release 5) [3.230].

CCH International, Japan Business Law Guide, vol 1 (at 68-1-08) ¶7-200. [Not: … ¶[7200].]

J W Carter, LexisNexis, Carter on Contract (at 10 January 2009) [19-001].

Australian Guide to Legal Citation 107

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Notes Printed looseleaf services are updated periodically by replacing old pages with updated pages. The service number is usually a numerical identifier (indicating the sequential number of the update) or a date, and generally appears in a corner of the page.

Electronic ‘looseleaf’ services may include the most recent service number or a date of last update. If not, the date on which the electronic looseleaf service was accessed should be used as the most recent service number.

6.5 Newspaper Articles

6.5.1 Printed Newspapers

Rule Newspaper articles from printed newspapers should be cited as follows:

Author , ‘ Title ’, Newspaper ( Place of Publication ), Full Date , Pinpoint .

The author’s name should adhere to rule 1.14.

The title of an article should appear (unitalicised) within single quotation marks as it does on the first page of the article. It should appear in accordance with chapter 1. In particular:

• punctuation should adhere to rule 1.6.1 (so full stops should not be used after initials or in abbreviations);

• capitalisation should adhere to rule 1.7; and

• italicisation should adhere to rule 1.8.2 (so titles of Acts etc in the article title should be italicised).

Where there is no punctuation in the source separating the title from a subtitle, a colon or an em-dash should be inserted.

108 Part III — Secondary Sources

The full name of the newspaper should be used, including ‘The’ where it appears in the masthead. If an article appears in a named section of a newspaper (for example, ‘Sport’) and the newspaper is not consecutively paginated, the name of the section should be included before that of the newspaper in the form:

Section , Newspaper

If an article appears in a section of a newspaper without a name and the newspaper is not consecutively paginated, this should be indicated in the pinpoint reference (for example, ‘C14’).

The place of publication should appear as it does on the masthead or publication information of the newspaper. A state or country may also be included to clarify the place of publication (for example, ‘Paris, Texas’) or where the place of publication may not be known to readers (for example, ‘Ouagadougou, Burkina Faso’).

Examples Stephen Howard and Billy Briggs, ‘Law Lords Back School’s Ban on Islamic Dress’, The Herald (Glasgow), 23 March 2006, 7.

Fabiano Maisonnave, ‘Test of Endurance: Coup Leaders Try to Drive Zelaya from Embassy — Honduran Regime Restricts Food and Supplies and Deploys Pop as a Weapon’, The Guardian Weekly (London), 30 October 2009, 3.

Abigail Hunter, ‘He Stole My Son, Now I’m Alone in Hell’, Times2, The Times (London), 3 December 2009, 3.

Eleanor Laise, ‘TCW Slams Gundlach in Lawsuit over His Exit’, The Wall Street Journal (New York), 8 January 2010, C1.

6.5.2 Unsigned and Untitled Articles

Rule For unsigned articles, the author’s name should be omitted. However, for editorials, ‘Editorial’ should replace the author’s name. Subsequent references to unsigned articles and editorials should include an abbreviated form of the title (in accordance with rule 1.4.2).

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For untitled articles, a description of the piece (for example, ‘Letter to the Editor’) should replace the title. The description should not be enclosed in quotation marks.

Examples ‘Fury at WA Council Plan’, The Australian Financial Review (Sydney), 1 May 2006, 5.

Editorial, ‘Medicare by Name, No Longer by Nature’, News, The Age (Melbourne), 12 March 2004, 12.

Rose Healy, Letter to the Editor, The Herald Sun (Melbourne), 10 June 2002, 16.

6.5.3 Electronic Newspapers

Rule Electronic newspapers should only be cited where an identical printed edition (of the newspaper or the article cited) does not exist.

Citations of electronic newspaper articles should appear in the same manner as citations of printed newspapers (in accordance with rules 6.5.1–6.5.2). However:

• the place of publication should be replaced with ‘(online)’;

• a pinpoint reference should only be included where the article has pages or paragraphs; and

• a URL should be included after the full date (or any pinpoint reference) and should adhere to rule 6.15.6.

Example Farrah Tomazin, ‘Kinder Wages Breakthrough’, The Age (online), 19 May 2009 <http://www.theage.com.au/national/education/kinder- wages-breakthrough-20090519-bcwh.html>.

110 Part III — Secondary Sources

6.6 Television and Radio Transcripts

Rule Television and radio transcripts should be cited as follows:

Broadcaster , ‘ Title of Segment ’, Name of Program , Full Date ( Name of Speaker ).

The name of the speaker should be included unless it is otherwise apparent. It should adhere to rule 1.14.

A pinpoint reference may be included after the full date, preceded by a comma, if it appears in the transcript. A URL may be included after the speaker’s name (or any pinpoint) in the first reference to a transcript where the transcript is only available online or the URL would aid its retrieval. The URL should appear in accordance with rule 6.15.6.

Example ABC Radio National, ‘Inventions: Who Owns Them?’, The Law Report, 8 September 2009 (Andrew Stewart) <http://www.abc.net.au/ rn/lawreport/stories/2009/2678819.htm#transcript>.

6.7 Films and Audiovisual Recordings

Rule Films and other audiovisual recordings should be cited as follows:

Title (Directed by Name of Director , Studio/Production Company , Year ) Pinpoint .

The name of the studio or production company should adhere to rule 5.3.1. Where there are multiple studios or companies, only the first-named studio or company should be included.

Pinpoint references should be to a point in time in the recording, and should appear (depending on the accuracy desired) in the format:

Hours : Minutes : Seconds

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Examples Calling the Ghosts: A Story about Rape, War and Women (Directed by Mandy Jacobson and Karmen Jelincic, Bowery Productions, 1996).

To Kill a Mockingbird (Directed by Robert Mulligan, Brentwood Productions, 1962) 1:43:00.

6.8 Press and Media Releases

Rule Press and media releases should be cited as follows:

Author , ‘ Title ’ ( Release Type , Document Number , Full Date ) Pinpoint .

The name of the author should adhere to rule 1.14. The release type should appear as it does on the source (for example, ‘Press Release’, ‘Media Release’, ‘Press Statement’). A document number should be included only if it appears on the release. The document number should be reproduced using any abbreviations as they appear on the release (adhering to rule 1.6.1, so full stops should not be used in abbreviations).

A URL may be included after the first reference to a release where this would aid its retrieval. It should appear in accordance with rule 6.15.6.

Examples Department of Defence (Cth), ‘Highest East Timorese Honour for Army Officers’ (Media Release, MSPA 172/09, 22 May 2009).

Australian Stock Exchange, ‘ASX Group Monthly Activity Report — April 2009’ (Media Release, 5 May 2009) 1 <http://www.asx.com.au/ about/pdf/ma050509_monthly_activity_report_april09.pdf>.

112 Part III — Secondary Sources

6.9 Working Papers and Similar Documents of Various Bodies

Rule Working papers and other similar documents of various bodies should be cited as follows:

Author , ‘ Title ’ ( Document Type No Number , Institution Name , Full Date ) Pinpoint .

The document type should be reproduced as it appears on the source (for example, ‘Working Paper’, ‘Discussion Paper’, ‘Research Report’, etc). Where the document is not part of a numbered series, ‘No Number ’ should be omitted. The institution name should adhere to rule 1.14.3 (so generally only the most specific subdivision and the umbrella body’s name should be included). Where there is not a full date on the source, as much of the full date as appears should be included (for example, ‘September 1997’ or ‘1998’).

Pinpoint references should adhere to rule 6.1.4 (so should include page numbers and may include paragraph numbers in addition).

A URL may be included after the first reference to a working paper or similar document where this would aid its retrieval. It should appear in accordance with rule 6.15.6.

Examples Jens Tapking and Jing Yang, ‘Horizontal and Vertical Integration in Securities Trading and Settlement’ (Working Paper No 245, Bank of England, 2004) 11–12.

Paul Memmott and Peter Blackwood, ‘Holding Title and Managing Land in Cape York — Two Case Studies’ (Research Discussion Paper No 21, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2008) 37.

Caroline O N Moser, Annika Tornqvist and Bernice van Bronkhorst, ‘Mainstreaming Gender and Development in the World Bank: Progress and Recommendations’ (Report, World Bank, 1998).

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O ther

Sources

John Howe and Ingrid Landau, ‘“Light Touch” Labour Regulation by State Governments in Australia: A Preliminary Assessment’ (Working Paper No 40, Centre for Employment and Labour Relations Law, The University of Melbourne, December 2006) 6 <http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=961528>.

Note Where a document of a body is published as a book, it should be cited in accordance with chapter 5.

6.10 Theses

Rule Theses should be cited as follows:

Author , Title ( Type of Thesis , Institution , Year ) Pinpoint .

A URL may be included after the first reference to a thesis where this would aid its retrieval. It should appear in accordance with rule 6.15.6.

Examples Denis Joseph Andrew Muller, Media Accountability in a Liberal Democracy — An Examination of the Harlot’s Prerogative (PhD Thesis, The University of Melbourne, 2005).

Amélie Champsaur, The Regulation of Credit Rating Agencies in the US and the EU: Recent Initiatives and Proposals (LLM Thesis, Harvard University, 2005) 19–20 <http://www.law.harvard.edu/ programs/about/pifs/education/sp19.pdf>.

6.11 Conference Papers

Rule Conference papers should be cited as follows:

Author , ‘ Title ’ (Paper presented at Name of Conference , Location , Full Date ) Pinpoint .

A URL may be included after the first reference to a conference paper where this would aid its retrieval. It should appear in accordance with rule 6.15.6.

114 Part III — Secondary Sources

Example Anne Orford, ‘Roman Law and the Godly Imperium in England’s New Worlds’ (Paper presented at the Workshop on the Theo-Political Renaissance, Department of English, Cornell University, 25 April 2008).

6.12 Speeches

Rule Speeches should be cited as follows:

Speaker , ‘ Title ’ (Speech delivered at the Name of Forum , Location , Full Date ).

A URL may be included after the first reference to a speech where this would aid its retrieval. It should appear in accordance with rule 6.15.6.

Example Chief Justice Robert French, ‘Native Title — A Constitutional Shift?’ (Speech delivered at the JD Lecture Series, The University of Melbourne, 24 March 2009) <http://www.hcourt.gov.au/publications _05.html>.

Note Where a speech has been published in a journal or book, it should be cited in accordance with chapters 4 or 5 respectively.

6.13 Interviews

6.13.1 Interviews Conducted by the Author

Rule Interviews conducted by the author should be cited as follows:

Interview with Name of Interviewee ( Location or Form of Interview , Full Date ).

The position of the interviewee may also be included after their name, preceded by a comma.

Australian Guide to Legal Citation 115

O ther

Sources

Examples Interview with Philip Dunn (Melbourne, 19 October 2005).

Interview with Ian Brownlee, Chief Policy Director, Office of the Director of Public Prosecutions (York, 3 August 2007).

Interview with Nicola Roxon, Shadow Attorney-General (Doorstop Interview, 2 November 2005).

6.13.2 Interviews Not Conducted by the Author

Rule Interviews not conducted by the author should be cited as follows:

Name of Interviewer , Interview with Name of Interviewee ( Location or Form of Interview , Full Date ).

The position of the interviewee may also be included after their name, preceded by a comma. A URL may be included after the first reference to an interview where this would aid retrieval of the interview. The URL should appear in accordance with rule 6.15.6.

Example Laurie Oakes, Interview with John Howard, Prime Minister of Australia (Television Interview, 30 October 2005).

Note Where an interview has been published in a journal or book, it should be cited in accordance with chapters 4 or 5 respectively.

6.14 Written Correspondence

Rule Written correspondence should be cited as follows:

Type of Correspondence from Author to Recipient , Full Date , Pinpoint .

Types of correspondence include letters, faxes and emails. The position of the correspondents may be included after their names.

116 Part III — Secondary Sources

Where correspondence is reproduced within another hard copy source, that source may be cited (in accordance with the appropriate rules of this Guide). It should appear after the full date (or any pinpoint) and be preceded by ‘in’. Alternatively, a URL may be included where this would aid retrieval of the correspondence (in accordance with rule 6.15.6). A URL should not be preceded by ‘in’.

Examples Email from Jonathon Barrington to Deborah Horowitz, 17 May 2001.

Letter from Ellen Keen to George Rusden, 28 April 1867 in Rusden Papers (Leeper Library, Trinity College, The University of Melbourne) vol 11.

Letter from Deloitte Touche Tohmatsu, Melbourne, to Opes Prime Clients, 1 April 2008, 3 <http://www.deloitte.com.au/media/docs/ OpesPrime_groupcircular.pdf>.

Note Attachments sent via email may be cited in this manner, unless the attachment is covered by another rule in this Guide.

6.15 Internet Materials

Example Board of Examiners,

Admission Requirements

(18 February

2010)

Council of Legal

Education

<http://www. lawadmissions .vic.gov.au>

Element Author Document Title

Full Date

Website Name

Uniform Resource Locator

Rule 6.15.1 6.15.2 6.15.3 6.15.4 6.15.6

Note A source should be cited using this rule only if it does not exist in a published form and no other rule within this Guide applies to it.

Citations of articles in electronic journals should adhere to rule 4.9. Citations of electronic newspapers should adhere to rule 6.5.3. Citations of blogs should adhere to rule 6.15.7.

Australian Guide to Legal Citation 117

O ther

Sources

6.15.1 Author

Rule The author’s name should be included if it is apparent from the web page or document. It should adhere to rule 1.14.

Example Department of Corrective Services, Government of Western Australia, Victim–Offender Mediation <http://www.correctiveservices.wa.gov. au/victim-services/victim-offender-mediation/>.

6.15.2 Document Title

Rule The title of the particular web page or web document cited should be included in italics after the author’s name.

Example World Health Organization, Violence against Women: A Priority Health Issue (1997) <http://www.who.int/gender/violence/prioreng/ en/>.

6.15.3 Full Date

Rule Where available, the full date of last update of the web page should be included after the document name. If this is not shown, the full date of creation should be included.

Where there is not a full date on the web page or document, as much of the full date as appears should be included. Where there is no date, the full date should be omitted.

Examples International Whaling Commission, IWC Information (29 September 2009) <http://www.iwcoffice.org/commission/iwcmain.htm>.

Law Council of Australia, Our History <http://www.lawcouncil. asn.au/about/history.cfm>.

6.15.4 Website Name

Rule The name of the general website on which the web page or document resides should be included if available. The website name should not appear in italics.

118 Part III — Secondary Sources

If the website name is preceded by a document title but no full date, the document title and website name should be separated by a comma.

Where the author and website name are identical, the website name should not be included.

Examples ARM National Committee, The Australian Republican Movement Policy (February 2009) Australian Republican Movement <http://www.republic.org.au/page/australian-republican-movement- policy>.

Internet Patent News Service, Patent Database, Patenting Art and Entertainment <http://www.patenting-art.com/database/dbase1-e.htm>.

Innocence Project, Eyewitness Misidentification <http://www. innocenceproject.org/understand/Eyewitness-Misidentification.php>. [Not: Innocence Project, Eyewitness Misidentification, Innocence Project …]

6.15.5 Pinpoint Reference

Rule Any pinpoint reference should appear before the URL and be preceded by a comma. Pinpoint references should adhere to rule 6.1.4.

Example Australasian Legal Information Institute, News (22 December 2009) AustLII, 2 <http://www.austlii.edu.au/austlii/news/20091222.pdf>.

Note Web pages do not usually include pinpoints. Where they appear on a web page, pinpoints are usually paragraph numbers, which should be included in citations in square brackets (in accordance with rules 1.1.5–1.1.6).

6.15.6 Uniform Resource Locator (‘URL’)

Rule The URL should be enclosed within ‘< >’ symbols.

Where the full URL of a document appears cumbersome and the document can be located easily from a general website, the URL of the general website may be included instead.

The date of retrieval should not be included after the URL.

Australian Guide to Legal Citation 119

O ther

Sources

Examples Oxfam International, Flooding in the Philippines Highlights Urgency of Climate Leadership (28 September 2009) <http://www.oxfam.org/ en/pressroom/pressrelease/2009-09-28/flooding-philippines-urgency- climate-leadership>.

National Human Rights Consultation Committee, Terms of Reference (2008) National Human Rights Consultation <http://www.humanrightsconsultation.gov.au>. [Not: … <http:// www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Te rms_of_Reference>.]

6.15.7 Blogs and Online Forums

Rule Posts on blogs and online forums should be cited as follows:

Author of Post , ‘ Title of Post ’ on Author of Blog/Forum , Blog/Forum Name ( Full Date of Post ) < URL of Post >.

Only elements that appear on the blog or forum should be included. The URL should adhere to rule 6.15.6 (so where a post is easily accessible from a general website, the URL of the general website may replace the URL of the post).

Examples Jeremy Gans, ‘The Charter vs Eviction’ on Jeremy Gans, Charterblog: Analysis of Victoria’s Charter of Human Rights (12 July 2008) <http://charterblog.wordpress.com/2008/07/12/the-charter-vs- eviction>.

Khalid al Nur, ‘Politics of Rage, Politics of Change’ on Making Sense of Sudan (25 September 2009) <http://blogs.ssrc.org/sudan/2009/09/ 25/politics-of-rage-politics-of-change>.

6.16 Subsequent References

Rule ‘Ibid’ should be used for all materials in this chapter (in accordance with rule 1.4.1).

120 Part III — Secondary Sources

‘Above n’ should be used for all materials in this chapter (in

accordance with rule 1.4.2), except for:

 parliamentary debates (rule 6.1.1);

 evidence to parliamentary committees (rule 6.1.6);

 Australian constitutional convention debates (rule 6.1.9);

 interviews (rule 6.13); and

 written correspondence (rule 6.14).

Subsequent references to these listed sources (other than those using

‘ibid’) should appear in full.

Examples 5 Commonwealth, Parliamentary Debates, House of

Representatives, 26 October 2009, 10 858 (Kevin Rudd, Prime

Minister).

6 Ibid.

…

17 Commonwealth, Parliamentary Debates, House of

Representatives, 26 October 2009, 10 858 (Kevin Rudd, Prime

Minister). [Not: Commonwealth, above n 5, 10 858.]

18 Jyoti Rahman, David Stephan and Gene Tunny, ‘Estimating Trends

in Australia’s Productivity’ (Working Paper No 2009-01, Treasury,

Australian Government, 2 February 2009) 12 <http://archive.

treasury.gov.au/documents/1466/PDF/Trends%20in%20Australia

%27s%20Productivity.pdf>.

19 Ibid 15.

…

58 Rahman, Stephan and Tunny, above n 18, 14.

59 Mad Max 2 (Directed by George Miller, Kennedy Miller

Productions, 1981) 1:20.

…

70 Mad Max 2, above n 59, 0:55.

Note In accordance with rule 1.4.3, short titles may be included in the initial

citations of, and replace author names in ‘above n’ references to,

reports and similar documents.

121

Treaties

7 Treaties

Treaty on the Non-Proliferation

of Nuclear Weapons,

opened for signature 1 July 1968,

729 UNTS

161

(entered into force 5 March

1970)

art 3

Agreement regarding the Transfer of the

Administration of Justice in the Territories of

Northern Slesvig,

Denmark– Germany,

signed 12 July 1921,

8 LNTS 397

(entered into force

17 January 1922)

art 2 Examples

Statute of the International Renewable

Energy Agency,

opened for signature

26 January 2009,

[2009] ATNIF

(not yet in force)

art V

Element Treaty Title Parties’ Names

Date Opened

for Signature or Signed

Treaty Series

Date of Entry into

Force

Pin- point

Rule 7.1 7.2 7.3 7.4 7.3 7.5

7.1 Treaty Title

Rule A citation of a treaty should include the treaty title in italics as it appears on the first page of the treaty. However:

• purely procedural components of the title (which are not part of the substantive name, such as the date and place of signature) should be omitted;

122 Part IV — International Materials

• punctuation should adhere to rule 1.6.1 (so full stops should not be used in abbreviations); and

• capitalisation should adhere to rule 1.7.

Example International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976). [Not: International Covenant on Economic, Social and Cultural Rights. Adopted by the General Assembly of the United Nations on 16 December 1966, opened for signature …]

Note If parties’ names are included in the treaty title, they should be reproduced in citations exactly as they appear in that title, even if they appear in an elaborate form.

7.2 Parties’ Names

Rule For multilateral treaties with more than three signatories, the names of states parties should not be included after the treaty title.

If the names of states parties to a bilateral or trilateral treaty appear in the treaty title, they should not be repeated after the title. If they do not appear in the title, they should be included (unitalicised) after the treaty title, preceded and followed by a comma and joined by en- dashes.

The conventional shortened forms of states parties’ names should be used (if any exist), rather than their full elaborate forms (for example, ‘Venezuela’, not ‘Bolivarian Republic of Venezuela’). However, the full form should be used if necessary to avoid ambiguity (for example, to differentiate the ‘Democratic Republic of the Congo’ from the ‘Republic of the Congo’).

Examples Convention Relating to the Non-Fortification and Neutralisation of the Aaland Islands, opened for signature 20 October 1921, 9 LNTS 211 (entered into force 6 April 1922). [Not: … Aaland Islands, Germany–Denmark–Estonia–Finland–France etc …]

Australian Guide to Legal Citation 123

T re

a tie

Agreement on Cultural and Educative Integration between the

Republic of Venezuela and the Republic of Peru, signed 12 January

1996, 2408 UNTS 125 (entered into force 13 March 1997) art 4. [Not:

… between the Republic of Venezuela and the Republic of Peru,

Venezuela–Peru, signed …]

International Agreement on the Scheldt, Belgium–France–

Netherlands, signed 3 December 2002, 2351 UNTS 13 (entered into

force 1 December 2005) art 3(1)(a).

7.3 Date Opened for Signature or Signed and Date of

Entry into Force

7.3.1 Opened for Signature (Open Multilateral Treaties)

Rule Multilateral treaties that are opened for signature to states generally

should be cited as follows:

Treaty Title , opened for signature Date of Conclusion ,

Treaty Series (entered into force Date of Entry into Force ).

The date of entry into force is the date on which the treaty first

commences for any state party.

Example Convention Relating to the Status of Refugees, opened for signature

28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).

Note Where a treaty is adopted by the United Nations General Assembly,

the date of adoption is generally the date of conclusion.

124 Part IV — International Materials

7.3.2 Signed by All Parties (Closed Multilateral or Bilateral Treaties)

Rule Treaties that are signed by all parties and are not opened for signature to others (often bilateral and trilateral treaties) should be cited as follows:

Treaty Title , signed Date of Conclusion , Treaty Series (entered into force Date of Entry into Force ).

Where the date of conclusion and entry into force are the same, such treaties should be cited as follows:

Treaty Title , Treaty Series (signed and entered into force Date of Conclusion and Entry into Force ).

Examples Agreement between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland Providing for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, signed 23 August 1990, [1994] ATS 27 (entered into force 1 September 1994).

Agreement Relating to Co-operation on Antitrust Matters, Australia– United States of America, 1369 UNTS 43 (signed and entered into force 29 June 1982).

7.3.3 Treaties Not Yet in Force

Rule For treaties that are not yet in force, ‘(not yet in force)’ should replace the date of entry into force.

Example Convention on Cluster Munitions, opened for signature 3 December 2008, [2008] ATNIF 24 (not yet in force).

Note Drafts of treaties should be cited in accordance with the appropriate rules of this Guide for the source type. They are commonly contained in UN documents (see chapter 8). Where it is not otherwise apparent that a reference is to a draft treaty, this should be clarified discursively.

Australian Guide to Legal Citation 125

Treaties

7.4 Treaty Series

Rule A citation of a treaty series should be included and the series name should be abbreviated.

Where the treaty series is organised by volume, the citation should appear as follows:

Volume Number Treaty Series Abbreviation Starting Page (for example, ‘23 UNTS 35’).

Where the treaty series is organised by year, the citation should appear as follows:

[ Year of Volume ] Treaty Series Abbreviation Starting Page or Treaty Number (for example, ‘[2010] ATS 5’).

Where the treaty series is organised by sequential order of deposit independent of year (that is, the treaty is the nth treaty ever deposited in the series), the citation should appear as follows:

Treaty Series Abbreviation No Sequential Number (for example, ‘CETS No 207’).

Parallel citations should not be used.

For treaties to which Australia is a party, the following treaty series and abbreviations should be used:

Treaty Series Abbreviation

United Nations Treaty Series UNTS League of Nations Treaty Series LNTS Australian Treaty Series ATS Australian Treaties Not Yet in Force ATNIF

ATS or ATNIF should only be used where the treaty is not reported in the UNTS or LNTS. Where the treaty is not reported in these treaty series, the other treaty series listed below should be used.

126 Part IV — International Materials

For treaties to which Australia is not party, the following treaty series should be used in order of preference:

• UNTS or LNTS;

• an official treaty series of a state party; or

• another international or regional treaty series.

The latter two categories include:

Treaty Series Abbreviation

Canada Treaty Series CTS Consolidated Treaty Series ConTS Council of Europe Treaty Series CETS European Treaty Series ETS Pacific Islands Treaty Series PITS United States Treaties and Other International Agreements

UST

For treaties between members of the European Union that do not appear in the UNTS or an official treaty series of a member (as well as in accordance with rule 13.1.2), the Official Journal of the European Union should be cited.

If a treaty is not published in a treaty series, other sources containing the treaty, such as International Legal Materials (abbreviated ‘ILM’), should be cited.

Examples Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

Agreement between the Government of Australia and the Government of Samoa Relating to Air Services, signed 11 August 2000, [2001] ATS 18 (entered into force 29 October 2001).

Convention on Cybercrime, opened for signature 23 November 2001, ETS No 185 (entered into force 1 July 2004) art 4(1).

Military Convention between Bulgaria and Greece, signed 22 September 1912, 217 ConTS 134 (entered into force 5 October 1912).

Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, opened for signature 23 November 2007, 47 ILM 257 (not yet in force).

Australian Guide to Legal Citation 127

Treaties

Notes The very first page of a treaty (as it appears in a treaty series) should be included as the starting page, even though this page does not usually indicate a page number and contains only the title, party names and other formal details.

Although International Legal Materials is not technically a treaty series or report series, it may be abbreviated ‘ILM’ and treated for citation purposes as if it were both.

7.5 Pinpoint Reference

Rule A pinpoint reference should follow the date of entry into force, preceded by a space. A pinpoint reference should not be preceded by any punctuation.

Pinpoint references should be to the articles, paragraphs, sections, etc, of a treaty. They should not be to the pages of the treaty series. Pinpoint references should adhere to rules 1.1.5–1.1.6. They should use the abbreviations in rule 3.1.4 (for example, ‘art’, ‘para’, ‘s’) as appropriate. In accordance with rule 3.1.4, the highest ‘level’ of article, paragraph, etc, in the pinpoint should be used (for example, ‘art 31.1’, not ‘para 31.1’). The designator ‘annex’ should always be written out in full.

Examples International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) art 3.

Convention on the Privileges and Immunities of the United Nations, opened for signature 13 February 1946, 1 UNTS 15 (entered into force 17 September 1946) s 9. [Not: … (entered into force 17 September 1946), s 9.]

Agreement Establishing the Advisory Centre on WTO Law, opened for signature 30 November 1999, 2299 UNTS 249 (entered into force 15 July 2001) annex II.

128 Part IV — International Materials

Note Articles are commonly separated from paragraphs by parentheses (for example, ‘art 33(1)’) or decimal points (for example, ‘art 33.1’). Both Roman numbering (for example, ‘art XX’) and Arabic numbering (for example, ‘art 12’) are common in treaties. The form of pinpoint reference in the treaty cited should be used in citations.

7.6 Subsequent References

Rule ‘Ibid’ should be used for all materials in this chapter (in accordance with rule 1.4.1).

In other subsequent references, citations should appear in full each time a treaty is referred to. However, treaties referred to frequently may be given a short title the first time they are cited. The short title should adhere to rule 1.4.3 (so should be italicised and placed within single inverted commas and parentheses following the initial citation). The short title may be placed in the text or in the footnotes. Subsequent references should take the form:

Short Title Pinpoint .

A short title may be given to a portion of a treaty (for example, an annex, an appendix or a schedule) in accordance with rule 1.4.3. The short title should be placed after the pinpoint to the relevant portion. Pinpoints following the short title in subsequent references refer to sections, paragraphs, etc, within that portion of a treaty.

‘Above n’ should not be used for treaties.

Examples 15 Treaty on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia, signed 11 December 1989, 1654 UNTS 105 (entered into force 9 February 1991) art 4(2)(a) (‘Timor Gap Treaty’).

… 69 Timor Gap Treaty art 6(1).

Australian Guide to Legal Citation 129

Treaties

70 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature 13 January 1993, 1974 UNTS 45 (entered into force 29 April 1997) annex (‘Annex on Chemicals’).

… 73 Annex on Chemicals pt B sch 2 para 2.

130

8 United Nations Materials

8.1 Constitutive Document

Rule The Charter of the United Nations should be cited as follows:

Charter of the United Nations Pinpoint .

Example Charter of the United Nations art 51.

Note The Statute of the International Court of Justice should be cited in accordance with rule 9.1.

8.2 Official Documents of the United Nations

Rule A citation of a United Nations (‘UN’) document should include the elements listed in the table below that appear in the document. The elements should be included in the order shown below. (The examples in the table are not taken from a single document.)

Element Example Rule

Author H S Amerasinghe, 8.2.1

Title Informal Single Negotiating Text Part IV Presented by the President of the Conference,

8.2.2

Resolution or Decision Number

GA Res 3314, 8.2.3

Official Records UN GAOR, 8.2.4

Committee Number 4th Comm, 8.2.5

34th sess, Session (and Part) Number 28th sess, 1st pt,

8.2.6

Meeting Number 75th mtg, 8.2.7

Australian Guide to Legal Citation 131

U N

M aterials

Agenda Item Agenda Item 2, 8.2.8

Supplement Supp No 3, 8.2.9

UN Document Number

UN Doc A/RES/150 8.2.10

Full Date (20 August 2008) 8.2.11

Annex annex I 8.2.12

Pinpoint Reference [2] 8.2.13

Elements before the UN document number should be separated by (non-italic) commas. Elements after the UN document number should generally not be separated by any punctuation, but the full date should appear in parentheses.

In accordance with rule 1.12.1, all ordinal numbers in citations should appear in figures and their letters should be superscript.

In accordance with rule 1.6.1, full stops should not be used in abbreviations. However, full stops should be included within a UN document number (in accordance with rule 8.2.10).

Example Millennium Summit of the United Nations, GA Res 54/254, UN GAOR, 54th sess, 93rd plen mtg, Agenda Item 49(b), Supp No 49, UN Doc A/RES/54/254 (23 March 2000, adopted 15 March 2000) para 3.

Note For examples of commonly cited types of UN documents, see rule 8.6.

8.2.1 Author

Rule Where an individual or body (other than a principal organ of the UN) is identified as the author of a document, the individual’s or body’s name should be included.

The author’s official position may be included if it is not evident from the document title. It should be included after their name, preceded by a comma.

132 Part IV — International Materials

Examples Fatma Zohra Ksentini, Report of the Special Rapporteur on Human Rights and the Environment, UN Doc E/CN.4/Sub.2/1994/9 (6 July 1994).

Giorgio Gaja, Special Rapporteur, Second Report on the Responsibility of International Organizations, UN Doc A/CN.4/541 (2 April 2004).

8.2.2 Title

Rule The title of a document should appear in italics.

Example Human Rights Committee, General Comment No 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, 94th sess, UN Doc CCPR/C/GC/33 (25 June 2009).

Note Not every UN document has a title (for example, Security Council resolutions generally do not have titles).

8.2.3 Resolution or Decision Number

Rule When citing a resolution or decision, the organ and the resolution or decision number should be included. They should appear using the abbreviations below:

Organ and Type Abbreviation

Economic and Social Council Decision ESC Dec Economic and Social Council Resolution ESC Res General Assembly Decision GA Dec General Assembly Resolution GA Res Security Council Decision SC Dec Security Council Resolution SC Res

Australian Guide to Legal Citation 133

U N

M aterials

Examples United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007). [Not: … General Assembly Resolution 61/295 …]

SC Res 1441, UN SCOR, 57th sess, 4644th mtg, UN Doc S/RES/1441 (8 November 2002).

8.2.4 Official Records

Rule Where a document is contained in the Official Records of a UN organ, this should be indicated using the following abbreviations:

Organ and Official Records Abbreviation

General Assembly Official Records UN GAOR Security Council Official Records UN SCOR Economic and Social Council Official Records UN ESCOR Trusteeship Council Official Records UN TCOR

Examples Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).

SC Res 1734, UN SCOR, 61st sess, 5608th mtg, UN Doc S/RES/1734 (22 December 2006).

Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN ESCOR, 55th sess, 22nd mtg, Agenda Item 4, UN Doc E/CN.4/Sub.2/2003/12/Rev.2 (13 August 2003).

Amendment of the Rules of Procedure of the Trusteeship Council, UN TCOR, 61st sess, 1705th mtg, Agenda Item 10, UN Doc T/RES/2200 (LXI) (25 May 1994) annex para 3.

134 Part IV — International Materials

8.2.5 Committee Number

Rule Where a UN document originates from a committee of the General Assembly, this should be indicated by including the committee number as follows:

Ordinal Number of Committee Comm (for example, ‘2nd Comm’).

Example Summary Record of the 35th Meeting, UN GAOR, 3rd Comm, 47th sess, 35th mtg, Agenda Items 94 and 96, UN Doc A/C.3/47/SR.35 (4 December 1992) 11 [57].

Note The United Nations General Assembly has six main committees, numbered from the First to the Sixth Committee.

8.2.6 Session (and Part) Number

Rule Where a document originates from a session of a UN organ, committee or other body, the session number should be included. It should appear as follows:

Ordinal Number of Session sess (for example, ‘4th sess’).

If the session is organised into parts, the part number should also be included in the same form, preceded by a comma. ‘Part’ should be abbreviated ‘pt’ (for example, ‘4th sess, 3rd pt’).

Examples UN SCOR, 62nd sess, 5663rd mtg, UN Doc S/PV.5663 (17 April 2007).

UN GAOR, 6th Comm, 3rd sess, 1st pt, 77th mtg, UN Doc A/C.6/SR.77 (18 October 1948).

8.2.7 Meeting Number

Rule A meeting number should be included as follows:

Ordinal Number of Meeting mtg (for example, ‘37th mtg’).

Australian Guide to Legal Citation 135

U N

M aterials

Where the meeting is a ‘plenary meeting’, ‘mtg’ should be replaced with ‘plen mtg’.

Examples SC Res 1546, UN SCOR, 59th sess, 4987th mtg, UN Doc S/RES/1546 (8 June 2004).

Measures to Eliminate International Terrorism, GA Res 49/60, UN GAOR, 49th sess, 84th plen mtg, Supp No 49, UN Doc A/RES/49/60 (9 December 1994).

8.2.8 Agenda Item

Rule An agenda item should be included as follows:

Agenda Item Agenda Item Number (for example, ‘Agenda Item 137’).

Where more than one agenda item appears on a UN document, ‘Agenda Items’ should precede the agenda item numbers. The last two agenda item numbers should be separated by ‘and’.

Examples The Ethiopian Millennium, GA Res 61/270, UN GAOR, 61st sess, 103rd plen mtg, Agenda Item 44, Supp No 49, UN Doc A/RES/61/270 (27 June 2007, adopted 15 June 2007).

International Migration and Development: Report of the Secretary- General, UN GAOR, 60th sess, Agenda Item 54(c), UN Doc A/60/871 (18 May 2006).

Gratis Personnel Provided by Governments, GA Res 53/218, UN GAOR, 53rd sess, 97th plen mtg, Agenda Items 112 and 119, Supp No 49, UN Doc A/RES/53/218 (21 April 1999).

Note Documents marked with an ‘agenda item’ are created or distributed in pursuance of an item on a UN body’s official agenda.

136 Part IV — International Materials

8.2.9 Supplement

Rule Where a UN document appears in a supplement to the Official Records, the supplement should be included as follows:

Supp No Supplement Number (for example, ‘Supp No 98’).

Example 2005 World Summit Outcome, GA Res 60/1, UN GAOR, 60th sess, 8th plen mtg, Agenda Items 46 and 120, Supp No 49, UN Doc A/RES/60/1 (24 October 2005).

Note UN reports, resolutions and decisions are published as supplements to the Official Records (which are independently paginated sections within or volumes of the Official Records).

From the 31st session (1976), General Assembly resolutions were published in Supp No 49.

8.2.10 UN Document Number

Rule Almost all UN documents are assigned a unique document number, which should be included as follows:

UN Doc Document Number (for example, ‘UN Doc A/RES/54/275’).

A document number should appear exactly as it does on the document cited (including slashes and full stops). Abbreviations in document numbers should appear in upper case.

Where multiple document numbers are necessary (for example, due to an addendum or corrigendum), ‘Doc’ should be replaced by ‘Docs’ and only as much of the second document number as is different should be included. The document numbers should be separated by ‘and’ (for example, ‘UN Docs A/63/804 and Corr.1’).

Examples International Day of Peace, GA Res 55/282, UN GAOR, 55th sess, 111th plen mtg, Agenda Item 33, Supp No 49, UN Doc A/RES/55/282 (28 September 2001, adopted 7 September 2001) para 3.

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SC Res 1905, UN SCOR, 64th sess, 6249th mtg, UN Doc S/RES/1905 (21 December 2009).

The Situation in the Occupied Territories of Azerbaijan: Report of the Secretary General, UN GAOR, 63rd sess, Agenda Item 18, UN Docs A/63/804 and Corr.1 (30 March 2009). [Not: … UN Docs A/63/804 and A/63/804/Corr.1 …]

Notes The following abbreviations, which indicate the body under whose auspices the document was produced, often form the first component of a UN document number:

Abbreviation Meaning Abbreviation Meaning

A General Assembly CAT/C Committee against Torture

CCPR/C Human Rights Committee

CEDAW/C Committee on the Elimination of Discrimination against Women

CERD/C Committee on the Elimination of Racial Discrimination

CRC/C Committee on the Rights of the Child

DP UN Development Programme

E Economic and Social Council

S Security Council ST Secretariat TD UN Conference on

Trade and Development

UNEP United Nations Environment Programme

The following abbreviations, which indicate the specific body that authored or received the document, often form the second component of a UN document number:

Abbreviation Meaning Abbreviation Meaning

AC Ad hoc committee C Standing, permanent or main committee

CONF Conference CN Commission

GC Governing council PC Preparatory committee

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SC Sub-Committee Sub Sub-Commission WG Working group

The following abbreviations, which indicate a description of the document type or its characteristics, often form the third (sometimes final) component of a UN document number:

Abbreviation Meaning Abbreviation Meaning

CRP Conference room paper

INF Information series

L Limited distribution NGO Statement by non- governmental organisations

PET Petition PRST Statement by the President of the Security Council

PV Verbatim record of meeting

R Restricted distribution

RES Resolution SR Summary record of meeting

WP Working paper

The following components, which indicate subsequent additions or changes to a document, often form a fourth (and final) component of a UN document number:

Abbreviation Meaning Abbreviation Meaning

Add Addendum Amend Amendment Corr Corrigendum Rev Revision

Summary Summarised version * Reissuance of document for technical reasons

Document numbers of General Assembly resolutions prior to the 31st session (1976) include the session number (and, for special and emergency special sessions, an abbreviation for the type of session) in parentheses after the document number. Examples are ‘(XXV)’ for the 25th regular session, ‘(S-VI)’ for the sixth special session, and ‘(ES- V)’ for the fifth emergency special session.

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8.2.11 Full Date

Rule The full date of the document should be included in parentheses after the UN document number.

Where there are multiple dates on a document, the date that appears directly below the document number should be included.

Where the date of adoption differs from the document date and the date of adoption is important, the date of adoption may be included after the full date as follows:

( Full Date , adopted Full Date of Adoption ) (for example, ‘(27 July 2001, adopted 14 June 2001)’).

Where there is not a full date on the document, as much of the full date as appears should be included.

Examples Maurice Kamto, Special Rapporteur, Third Report on the Expulsion of Aliens, 59th sess, UN Doc A/CN.4/581 (19 April 2007) 6 [11].

UN GAOR, 5th Comm, 51st sess, 68th mtg, UN Doc A/C.5/51/SR.68 (12 August 1997). [Not: … (4 June 1997).]

General and Complete Disarmament, GA Res 49/75, UN GAOR, 49th sess, 90th plen mtg, Agenda Item 62, Supp No 49, UN Doc A/RES/49/75 (9 January 1995, adopted 15 December 1994) pt K.

Rules of Procedure of the General Assembly, UN Doc A/520/Rev.17 (2008).

Note The date of a UN document (the date of issuance) often precedes or follows the date of its adoption.

8.2.12 Annex

Rule Where an annex is included as a pinpoint reference, ‘annex’ should appear as the pinpoint. Where there are multiple annexes, a reference to one annex should include its number or other designation as it appears on the document (for example, ‘annex 1’, ‘2nd annex’, ‘annex A’).

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Where an annex to a UN document is effectively a document in its

own right (for example, where the annex has separate pagination or

pinpoints from the rest of the document or has a separate title) and

reference is made to pinpoints within the annex, the first reference to

the annex should appear as follows:

Citation of UN Document Containing Annex

annex (‘ Title of Annex ’).

Subsequent references should appear as follows:

Title of Annex , UN Doc

Document Number of UN Document Containing Annex ,

annex Pinpoint .

Where there are multiple annexes, ‘annex’ should be replaced with the

numbered annex as it appears on the source.

Examples 22 SC Res 1512, UN SCOR, 58th sess, 4849th mtg, UN Doc

S/RES/1512 (27 October 2003) annex.

23 United Nations Convention against Transnational Organized

Crime, GA Res 55/25, UN GAOR, 55 th

sess, 62 nd

plen mtg,

Agenda Item 105, Supp No 49, UN Doc A/RES/55/25 (8 January

2001) annex II (‘Protocol to Prevent, Suppress and Punish

Trafficking in Persons, Especially Women and Children,

Supplementing the United Nations Convention against

Transnational Organized Crime’).

…

25 Protocol to Prevent, Suppress and Punish Trafficking in Persons,

Especially Women and Children, Supplementing the United

Nations Convention against Transnational Organized Crime, UN

Doc A/RES/55/25, annex II art 2(a).

8.2.13 Pinpoint Reference

Rule Pinpoint references should appear at the end of the citation.

Where a UN document is a resolution, decision or in the nature of a

treaty, pinpoint references should adhere to and appear using the

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abbreviations in rule 3.1.4. In particular: • ‘paragraph’ should be abbreviated ‘para’; and

• where multiple combinations of abbreviations and numbers form one pinpoint reference, commas should not separate them (for example, to refer to paragraph 2 in part B ‘pt B para 2’, not ‘pt B, para 2’, should be included).

Pinpoint references to operative paragraphs in resolutions and decisions should not be preceded by any designation. Pinpoint references to preambular paragraphs in resolutions and decisions should appear as follows:

Preamble para Number (for example, ‘Preamble para 3’).

Where a UN document is in the nature of a report, judicial decision or secondary source, pinpoint references should adhere to rules 1.1.5– 1.1.6. Where such a document has page and paragraph numbers, paragraph numbers must be included and page numbers may be included in addition. Where such a document has only page numbers or paragraph numbers, pinpoints should be to page numbers or paragraphs as appropriate. Paragraph numbers should appear in square brackets.

Examples 2005 World Summit Outcome, GA Res 60/1, UN GAOR, 60th sess, 8th plen mtg, Agenda Items 46 and 120, Supp No 49, UN Doc A/RES/60/1 (24 October 2005) paras 138–9.

SC Res 1717, UN SCOR, 61st sess, 5550th mtg, UN Doc S/RES/1717 (13 October 2006) Preamble paras 3–4.

Report of the Secretary-General Pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, 54th sess, Agenda Item 42, UN Doc A/54/549 (15 November 1999) 6 [3]–[4].

Committee against Torture, Decision: Communication No 227/2003, 37th sess, UN Doc CAT/C/37/D/227/2003 (14 December 2006) [8.6]– [8.7] (‘AAC v Sweden’).

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Note Preambular paragraphs are usually not numbered. When citing

preambular paragraphs, Arabic numerals should be assigned to them

in order.

8.2.14 Documents of Multiple Organs

Rule Where a document is considered by or addressed to multiple UN

organs (for example, both the General Assembly and Security

Council):

 parallel citations of the Official Records of both organs should

be included, separated by a semi-colon; and

 both document numbers should be included, separated by

‘and’.

Example Letter Dated 5 November 2001 from the Chargé d’affaires ai of the

Permanent Mission of the Syrian Arab Republic to the United Nations

Addressed to the Secretary-General, UN GAOR, 56 th

sess, Agenda

Items 42, 88 and 166; UN SCOR, 56 th

sess, UN Docs A/56/601 and

S/2001/1045 (5 November 2001).

8.3 UN Treaty Body Documents

8.3.1 Decisions of UN Treaty Bodies on Individual

Communications

Rule Decisions of UN treaty bodies on individual communications should

be cited in accordance with rule 8.2. However, they should always be

given a short title (in accordance with rule 8.5) as follows:

(‘ Complainant’s Surname v Respondent State ’)

Subsequent references should adhere to rule 8.5.

Example 22 Human Rights Committee, Views: Communication No 1011/2001,

81 st sess, UN Doc CCPR/C/81/D/1011/2001 (26 August 2004)

21 [9.8] (‘Madafferi v Australia’).

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… 25 Madafferi v Australia, UN Doc CCPR/C/81/D/1011/2001, 22 [10].

8.3.2 Communications and Submissions to UN Treaty Bodies

Rule Communications and submissions to UN treaty bodies should be cited as follows:

Author , ‘ Document Title ’, Document Type to the UN Treaty Body in Complainant’s Surname v Respondent State ,

Full Date , Pinpoint .

The document type should generally be ‘Submission’ or ‘Communication’ as appropriate. Pinpoint references should adhere to rules 1.1.5–1.1.6. Pinpoints should be to paragraph numbers where available, or otherwise to page numbers.

A URL may be included after the full date or any pinpoint reference where this would aid retrieval of the document. It should appear in accordance with rule 6.15.6.

Example Human Rights Law Resource Centre, ‘Individual Communication under the Optional Protocol to the International Covenant on Civil and Political Rights — Original Communication’, Communication to the Human Rights Committee in Nystrom v Australia, 4 April 2007, [77]–[103] <http://www.hrlrc.org.au/files/PXB9OSNUM6/Individual% 20Communication.pdf>.

8.4 United Nations Yearbooks

Rule Where material is available as a UN document, it should be cited in accordance with rule 8.2 (even if reproduced in a UN yearbook). Where material in a UN yearbook is not otherwise available, the yearbook should be cited.

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Where the yearbook is organised by year, it should be cited as follows:

‘ Title ’ [ Year ] Yearbook Title Starting Page , Pinpoint .

Where there are multiple volumes for one year, the volume number should be included in Roman numerals after the year (for example, ‘[2002] II’). Where a volume is split into parts, the part number should be included, enclosed in parentheses, immediately after the volume number (for example, ‘[1999] II(2)’).

Where the yearbook is organised by volume, it should be cited as follows:

‘ Title ’ ( Year ) Volume Number Yearbook Title Starting Page , Pinpoint .

Where a volume is split into multiple issues or parts, the issue number should be included immediately following the volume number in parentheses (for example, ‘34(I)’).

In citations of UN yearbooks, an author’s name may be included before the document title, followed by a comma, where an individual or body is clearly identified as the author. A UN document number should not be included.

Examples ‘National Legislation Providing for the Levying of Certain Air Travel Taxes — The United Nations Should Be Exempt from Such Taxes under Section 7(a) of the Convention on the Privileges and Immunities of the United Nations’ [1973] United Nations Juridical Yearbook 132, 135.

‘Report of the International Law Commission on the Work of Its Fifty-Third Session (23 April – 1 June and 2 July – 10 August 2001)’ [2001] II(2) Yearbook of the International Law Commission 1.

‘Judge Bruno Simma’ (2005) 59 International Court of Justice Yearbook 54.

‘Developments and Trends, 2007’ (2007) 32(II) United Nations Disarmament Yearbook 3, 4.

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Note UN yearbooks include the Yearbook of the United Nations, the United Nations Juridical Yearbook, the International Court of Justice Yearbook and the Yearbook of the International Law Commission.

8.5 Subsequent References

Rule ‘Ibid’ should be used for all materials in this chapter (in accordance with rule 1.4.1).

In other subsequent references to UN documents (see rule 8.2), citations should appear in full each time a source is referred to. However, where a UN document is frequently referred to, it may be given a short title. The short title should adhere to rule 1.4.3 (so should be italicised, and placed within single inverted commas and parentheses following the initial citation). Subsequent references should then appear as follows:

Short Title , UN Doc UN Document Number , Pinpoint .

Other subsequent references to communications and submissions to UN treaty bodies (see rule 8.3.2) should appear in full.

In other subsequent references to UN yearbooks (see rule 8.4), ‘above n’ should be used (in accordance with rule 1.4.2). Otherwise, ‘above n’ should not be used for materials in this chapter.

Examples 22 SC Res 1325, UN SCOR, 4213th mtg, UN Doc S/RES/1325 (31 October 2000) (‘Resolution 1325’).

23 Ibid para 3. … 27 Resolution 1325, UN Doc S/RES/1325, para 7. 28 ‘Legal Aspects of International Political Relations’ [1988]

Yearbook of the United Nations 796, 801. … 31 ‘Legal Aspects of International Political Relations’, above n 28,

797.

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8.6 Commonly Cited Documents

Examples The table below sets out example citations of common types of UN documents. The citations apply the rules above.

Document Type Example

General Assembly Resolution

Prevention of Armed Conflict, GA Res 57/337, UN GAOR, 57th sess, 93rd plen mtg, Agenda Item 10, Supp No 49, UN Doc A/RES/57/337 (18 July 2003).

Security Council Resolution

SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/RES/827 (25 May 1993).

Meeting Record UN GAOR, 63rd sess, 55th plen mtg, UN Doc A/63/PV.55 (19 November 2008).

Economic and Social Committee Decision

Basic Program of Work of the Economic and Social Council for 2001, ESC Dec 2001/203, UN ESCOR, 3rd plen mtg, Supp No 1, UN Doc E/2000/99 (4 February 2000).

Report of Principal Organ

Report of the Economic and Social Council for 2005, UN GAOR, 60th sess, UN Doc A/60/3/Rev.1 (11 July 2007).

Report of UN Treaty Body

Conference of the Parties, United Nations Framework Convention on Climate Change, Report of the Conference of the Parties on Its Fifteenth Session, Held in Copenhagen from 7 to 19 December 2009 — Addendum — Part 2: Action Taken by the Conference of the Parties at Its Fifteenth Session, UN Doc FCCC/CP/2009/11/Add.1 (30 March 2010).

Secretary- General’s Report

In Larger Freedom: Towards Development, Security and Human Rights for All — Report of the Secretary- General, 59th sess, Agenda Items 45 and 55, UN Doc A/59/2005 (21 March 2005).

Secretariat Document

Secretary-General’s Bulletin — Organization of the Office of Central Support Services, UN Doc ST/SGB/1998/11 (1 June 1998).

Annex Responsibility of States for Internationally Wrongful Acts, GA Res 56/83, UN GAOR, 56th sess, 85th plen mtg, Supp No 49, UN Doc A/RES/56/83 (28 January 2002, adopted 12 December 2001) annex (‘Responsibility of States for Internationally Wrongful Acts’).

Draft Resolution Draft Resolution — International Cooperation in the Peaceful Uses of Outer Space, 4th Comm, 62nd sess, Agenda Item 31, UN Doc A/C.4/62/L.2 (14 November 2007).

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9 International Court of Justice and Permanent Court of International Justice

9.1 Constitutive and Basic Documents

Rule The Statute of the International Court of Justice should be cited as follows:

Statute of the International Court of Justice Pinpoint .

The Statute of the Permanent Court of International Justice should be cited as follows:

Statute of the Permanent Court of International Justice Pinpoint .

The rules of the International Court of Justice should be cited as follows:

International Court of Justice, Rules of Court (adopted Full Date ) Pinpoint .

The rules of the Permanent Court of International Justice should be cited as follows:

Permanent Court of International Justice, Rules of Court (adopted Full Date ) Pinpoint .

Examples Statute of the International Court of Justice art 24.

Statute of the Permanent Court of International Justice art 4.

International Court of Justice, Rules of Court (adopted 14 April 1978) art 59.

Permanent Court of International Justice, Rules of Court (adopted 24 March 1922) art 48.

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9.2 Decisions

East Timor (Portugal v Australia)

(Judg- ment)

[1995] ICJ Rep

90 , 93

Western Sahara

(Advisory Opinion)

[1975] ICJ Rep

12 , 17 Examples

Mavrommatis Palestine

Concessions

(Greece v United

Kingdom)

(Jurisd- iction)

[1924] PCIJ

(ser A) No 2 , 10

Element Case Name

Parties’ Names or Advisory Opinion

Phase Year

Report Series and

Series Letter

Starting Page and Case

Number

Pin- point

Rule 9.2.1 9.2.2 9.2.3 9.2.4 9.2.5 9.2.6 9.2.7

9.2.1 Case Name

Rule A citation of a decision of the International Court of Justice (‘ICJ’) or Permanent Court of International Justice (‘PCIJ’) should include the case name in italics as it appears on the first page of the report. However:

• ‘The’, ‘Case concerning’ and ‘Case concerning the’ at the start of a case name and ‘Case’ or ‘Cases’ at the end of a case name should be omitted;

• punctuation should adhere to rule 1.6.1 (so full stops should not be used in abbreviations); and

• capitalisation should adhere to rule 1.7.

Examples Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240.

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Legality of Use of Force (Serbia and Montenegro v France) (Preliminary Objections) [2004] ICJ Rep 575. [Not: Case concerning the Legality of Use of Force …]

Fisheries Jurisdiction (Spain v Canada) (Jurisdiction) [1998] ICJ Rep 432. [Not: Fisheries Jurisdiction Case …]

9.2.2 Parties’ Names or Advisory Opinion

Rule The names of the parties should be italicised and included (after the case name) as they appear on the first page of the report (even if in an elaborate form). They should be enclosed within parentheses and separated by ‘v’.

Where parties do not appear on the first page of the report, their names should be included in the conventional shortened form (if any exists), rather than the full elaborate form (for example, ‘Zimbabwe’, not ‘Republic of Zimbabwe’). However, the full form should be used where necessary to avoid ambiguity.

Where multiple cases are joined together, only the names of the parties to the first-listed case should be included.

For advisory opinions, ‘(Advisory Opinion)’ should appear instead of party names.

Examples Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) [1996] ICJ Rep 595.

Factory at Chorzów (Germany v Poland) (Jurisdiction) [1927] PCIJ (ser A) No 9. [Not: … (Germany v Polish Republic) …]

North Sea Continental Shelf (Federal Republic of Germany v Denmark) (Merits) [1969] ICJ Rep 3. [Not: … (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) …]

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136.

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9.2.3 Phase

Rule The phase should be italicised and appear in parentheses (after the parties’ names). It should be included as it appears on the first or second page of the report, in accordance with chapter 1. However:

• any date in the phase should be omitted;

• where the phase is an order with respect to ‘provisional measures’, ‘interim measures of protection’ or similar matters, the phase should appear as ‘(Provisional Measures)’;

• where the phase is an order or judgment with respect to ‘preliminary objections’ or similar matters, the phase should appear as ‘(Preliminary Objection)’ or ‘(Preliminary Objections)’ as appropriate; and

• where the phase is expressed as ‘Jurisdiction of the Court’, it should appear as ‘(Jurisdiction)’.

For procedural orders of the court on a particular matter, the phase should be included in the following form:

(Order on Name of Matter )

The name of the matter should appear as it does on the first page of the case. The name of the subject matter of the application, and not the date of the order, should be used (for example, ‘(Order on Application by Malta for Permission to Intervene)’). However, where the date is the only description of the order on the first page of the case, the phase should be included in the following form:

(Order of Full Date )

Examples United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Provisional Measures) [1979] ICJ Rep 7, 12 [10]–[11]. [Not: … (Request for the Indication of Provisional Measures) [1979] …]

South West Africa (Ethiopia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319, 378. [Not: … (Ethiopia v South Africa) (Judgment of 21 December 1962) …]

Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v Iceland) (Jurisdiction) [1973] ICJ Rep 3.

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Right of Passage over Indian Territory (Portugal v India) (Merits) [1960] ICJ Rep 6.

Asylum (Colombia v Peru) (Judgment) [1950] ICJ Rep 266.

Nottebohm (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4.

Nuclear Tests (New Zealand v France) (Order on Application by Fiji for Permission to Intervene) [1973] ICJ Rep 324. [Not: … (Order of 12 July 1973 — Application by Fiji for Permission to Intervene) …]

But: Nuclear Tests (New Zealand v France) (Order of 6 September 1973) [1973] ICJ Rep 341.

Note Cases before the ICJ and PCIJ may involve a number of separate decisions of the court. The ‘phase’ is the broad characterisation of the stage of the decision cited in the course of a case. The most common phases are:

• ‘(Provisional Measures)’;

• ‘(Preliminary Objections)’;

• ‘(Jurisdiction)’;

• ‘(Merits)’; and

• ‘(Judgment)’.

A phase should always be included in a contentious case. Where there are not multiple phases in a particular contentious case, the phase ‘(Judgment)’ will usually be appropriate.

9.2.4 Year

Rule The year of the volume of the report series in which the case appears should be included (after the phase) in square brackets.

Examples Certain German Interests in Polish Upper Silesia (Germany v Poland) (Judgment) [1925] PCIJ (ser A) No 6.

LaGrand (Germany v United States of America) (Judgment) [2001] ICJ Rep 466.

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Note The official report series of both the ICJ and PCIJ are organised by year. The year therefore appears in square brackets (in accordance with rule 2.2).

9.2.5 Report Series and Series Letter

Rule The report series abbreviation should appear (unitalicised) after the year.

For decisions of the PCIJ, the letter of the series (‘A’, ‘B’ or ‘A/B’) should also be included in the form:

(ser Letter of Series ) (for example, ‘(ser B)’).

Examples Oil Platforms (Islamic Republic of Iran v United States of America) (Preliminary Objection) [1996] ICJ Rep 803.

SS ‘Lotus’ (France v Turkey) (Judgment) [1927] PCIJ (ser A) No 10.

Notes The ICJ publishes its decisions in Reports of Judgments, Advisory Opinions and Orders (abbreviated ‘ICJ Rep’).

The PCIJ published its decisions in series A, series B and series A/B of Publications of the Permanent Court of International Justice (abbreviated ‘PCIJ’).

9.2.6 Starting Page and Case Number

Rule For decisions of the ICJ, the starting page should be included after the report series abbreviation.

For decisions of the PCIJ, the case number should be included (instead of a starting page) after the series.

Examples Frontier Dispute (Benin v Niger) (Judgment) [2005] ICJ Rep 90.

Factory at Chorzów (Germany v Poland) (Merits) [1928] PCIJ (ser A) No 17.

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Notes For decisions of the ICJ, the starting page is generally that on which the judgment begins. The page numbers of title page and the page containing information about mode of citation should not be used as the starting page. (However, the information on mode of citation indicates the correct starting page in its suggested citation of the decision.)

Decisions of the PCIJ were assigned a sequential number by the Court (for example, ‘No 3’). This number should be used to cite PCIJ decisions because the page numbering of each decision (even within a series) is non-consecutive (see rule 4.4 on non-consecutive pagination).

9.2.7 Pinpoint Reference

Rule Pinpoint references should adhere to rules 1.1.5–1.1.6 and 2.5. In particular:

• where the pinpoint reference is to the first page of the report, the page number should be repeated;

• a series of pinpoint references should be separated by commas rather than ‘and’;

• where cases are paginated, pinpoint references should be to pages; and

• where a report has both page numbers and paragraph numbers, page numbers should always be included in a pinpoint reference and paragraph numbers may be included in addition.

Examples Railway Traffic between Lithuania and Poland (Advisory Opinion) [1931] PCIJ (ser A/B) No 42, 109.

Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) (Judgment) [1970] ICJ Rep 3, 5, 9, 10–11.

Corfu Channel (United Kingdom v Albania) (Preliminary Objection) [1948] ICJ Rep 15, 26–7.

Certain Property (Liechtenstein v Germany) (Judgment) [2005] ICJ Rep 6, 19 [26], 20 [31]–[32], 21–5 [34]–[45].

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9.2.8 Identifying Judges

Rule Where a judgment of the court is referred to, neither a judge’s name nor ‘(The Court)’ should be included.

Where a separate or dissenting opinion or a declaration is referred to, the name(s) of the relevant judge(s) (if not otherwise apparent) may be included in parentheses after the pinpoint reference. Judges’ names should appear in accordance with rules 1.14.4 and 2.9.1, except that ‘Judge(s)’, ‘President’ and ‘Vice-President’ should be written out in full before judges’ surnames. ‘Separate Opinion’, ‘Dissenting Opinion’ and ‘Declaration’ (and any abbreviations of these terms) should not be included with judges’ names.

Examples Avena and Other Mexican Nationals (Mexico v United States of America) (Judgment) [2004] ICJ Rep 12, 79 (Judge Vereshchetin).

Interhandel (Switzerland v United States of America) (Preliminary Objections) [1959] ICJ Rep 6, 78 (President Klaestad).

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment) [2002] ICJ Rep 3, 63–4 [2]–[3] (Judges Higgins, Kooijmans and Buergenthal).

Elettronica Sicula SpA (ELSI) (United States of America v Italy) (Judgment) [1989] ICJ Rep 15, 98 (Judge Schwebel). [Not: … (Dissenting Opinion of Judge Schwebel). nor … (Dis Op Judge Schwebel). nor … (DO Judge Schwebel).]

Note Where it is important that a judge made a declaration or gave a separate or dissenting opinion, this should be made clear in the text.

9.3 Pleadings and Other Documents Originating in ICJ and PCIJ Proceedings

Rule Pleadings and other material of parties and of the court originating in proceedings before the ICJ should be cited as follows:

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‘ Document Title ’, Case Name ( Parties’ Names ) [ Year ] ICJ Pleadings Starting Page , Pinpoint

( Speaker’s Name ).

Pleadings and other material of parties and of the court originating in proceedings before the PCIJ should be cited as follows:

‘ Document Title ’, Case Name ( Parties’ Names ) [ Year ] PCIJ (ser C) No Number , Starting Page , Pinpoint

( Speaker’s Name ).

The title of the document should appear as it does in the source, subject to chapter 1. Case names and parties’ names should adhere to rules 9.2.1–9.2.2. The year should be that of the volume cited. If the title page of a volume does not include a year, the year should be that of the decision (in the phase) to which the volume relates. Pinpoint references should adhere to rule 9.2.7, but should be to page numbers.

A speaker’s name (if not otherwise apparent) may be included after a pinpoint reference. Judges’ names should adhere to rule 9.2.8. Names of counsel, witnesses and other persons should adhere to rules 1.14 and 2.9.3.

For ICJ Pleadings, where more than one volume is published for a case, the volume number should precede ‘ICJ Pleadings’. It should appear in Roman numerals (for example, ‘[1985] II ICJ Pleadings’).

For PCIJ (ser C), the ‘number’ and the starting page of the document should be included (for example, ‘No 76, 12’). Where there are multiple parts within a ‘number’, the part should follow the number, preceded by ‘pt’. The part should appear in Roman numerals (for example, ‘No 17 pt II’).

Examples ‘Written Statement of the Government of the Kingdom of Denmark’, Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Pleadings 137.

‘Questions Put to Professor Glennon by Judge Schwebel’, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) [1986] V ICJ Pleadings 78, 78 (Judge Schwebel), 79 (Professor Glennon).

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‘Memorial Filed by the Government of His Britannic Majesty’, Treaty of Lausanne, Article 3, Paragraph 2 (Advisory Opinion) [1925] PCIJ (ser C) No 10, 198, 200–3.

‘Speech by Dr Budding’, Rights of Minorities in Upper Silesia (Germany v Poland) [1928] PCIJ (ser C) No 14 pt II, 20, 25–7.

Notes The ICJ publishes Pleadings, Oral Arguments, Documents (abbreviated ‘ICJ Pleadings’), which contains documents and transmissions of the parties and the Court (such as the application instituting proceedings, submissions, minutes of oral argument and evidence). The ICJ Pleadings series is organised by case, then volume number.

The PCIJ published similar documents in series C of Publications of the Permanent Court of International Justice (abbreviated ‘PCIJ’). PCIJ (ser C) is organised by ‘numbers’ (for example, ‘No 2’). A ‘number’ sometimes contains multiple ‘parts’. Each ‘part’ is separately paginated and contains documents relating to a separate case.

9.4 Unreported Materials

9.4.1 Decisions

Rule Decisions of the ICJ that are not reported should be cited as follows:

Case Name ( Parties’ Names ) ( Phase ) (International Court of Justice, General List No Number , Full Date ) Pinpoint .

Case names and parties’ names should adhere to rules 9.2.1–9.2.2. The general list number should be included as it appears on the page on which the judgment commences. The full date is that of the judgment. Pinpoint references should be to paragraphs (and should adhere to rules 1.1.5–1.1.6). Judges’ names may be included after pinpoints in accordance with rule 9.2.8.

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Examples Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) (Judgment) (International Court of Justice, General List No 136, 4 June 2008).

Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Judgment) (International Court of Justice, General List No 133, 13 July 2009) [34].

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v Singapore) (Judgment) (International Court of Justice, General List No 130, 23 May 2008) [8] (Judge Parra- Aranguren).

Notes Paragraph numbering generally begins afresh in a separate or dissenting opinion. Paragraph references to a separate or dissenting opinion are therefore to paragraphs within the opinion. A judge’s name must therefore be included in such references.

Decisions, pleadings and other material of the ICJ and PCIJ are available from the ICJ’s website at <http://www.icj-cij.org>. There is no need to include a URL (to the ICJ’s website or otherwise) after a citation of unreported ICJ decisions or other material.

9.4.2 Pleadings and Other Documents

Rule Pleadings and other material of parties and of the court originating in proceedings before the ICJ that are not reported should be cited as follows:

‘ Document Title ’, Case Name ( Parties’ Names ), International Court of Justice, General List No Number , Full Date , Pinpoint .

The title of the document should appear as it does in the source, subject to chapter 1. Case names and parties’ names should adhere to rules 9.2.1–9.2.2. The general list number should be included as it appears on the page on which the judgment commences. The full date is that of the document cited.

Pinpoint references should adhere to rules 1.1.5–1.1.6 and should be to paragraph numbers where available (and where these are continuous across an entire document). Where a document has only

158 Part IV — International Materials

page numbers, pinpoints should be to page numbers. Pinpoint references to verbatim proceedings (and other transcripts) should be to page numbers.

Speakers’ names may be included after pinpoint references and should adhere to rule 9.3.

Examples ‘Application Instituting Proceedings’, Aerial Herbicide Spraying (Ecuador v Colombia), International Court of Justice, General List No 138, 31 March 2008, 28 [41].

‘Request for the Indication of Provisional Measures Submitted by the Government of the Kingdom of Belgium’, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), International Court of Justice, General List No 144, 17 February 2009, 2.

‘Memorial Submitted by Romania’, Maritime Delimitation in the Black Sea (Romania v Ukraine), International Court of Justice, General List No 132, 19 August 2005, [6.21]–[6.22].

‘Verbatim Record’, Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), International Court of Justice, General List No 133, 2 March 2009, 12 (Edgar Ugalde-Alvarez).

9.5 Subsequent References

Rule ‘Ibid’ should be used for all materials in this chapter (in accordance with rule 1.4.1).

In other subsequent references:

• citations of decisions of the ICJ and PCIJ should adhere to rule 2.14; and

• citations of pleadings and other documents should appear in full.

‘Above n’ should not be used for any materials in this chapter.

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Examples 3 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 178 (‘Reparations’).

4 Ibid 179. 5 ‘Memorial of Nicaragua’, Border and Transborder Armed Actions

(Nicaragua v Costa Rica) [1987] ICJ Pleadings 9, 55. 6 Ibid 56–7. … 9 Reparations [1949] ICJ Rep 174, 198 (Judge Hackworth). 10 ‘Memorial of Nicaragua’, Border and Transborder Armed Actions

(Nicaragua v Costa Rica) [1987] ICJ Pleadings 9, 17. [Not: ‘Memorial of Nicaragua’, above n 5, 7.]

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10 International Arbitral and Tribunal Decisions

10.1 State–State Decisions

10.1.1 Reported Decisions

Example Expropriated

Religious Properties

(France v Portugal)

(Awards) (1932) 2 Hag Crt

Rep 2d (Scott) 1 , 4

Element Case Name Parties’ Names

Phase Year, Volume and Report

Series

Starting Page

Pin- point

Rule State–state arbitral and tribunal decisions published in a report series should be cited in accordance with rule 9.2, as shown above. In particular:

• the case name should adhere to rule 9.2.1; and

• pinpoint references should adhere to rule 9.2.7.

However:

• the parties’ names should appear in the conventional shortened form, not the full elaborate form, regardless of how they appear on the decision;

• the phase should appear as it does on the decision cited, except that any date should be omitted from the phase unless it is necessary to unambiguously identify the decision;

• the year, volume and report series should adhere to rules 2.2– 2.3; and

• the starting page should adhere to rule 2.4.

Judges’ or arbitrators’ names should be included in accordance with rule 9.2.8 (so should appear only after pinpoint references to separate or dissenting opinions or declarations). However, tribunal members

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may be referred to by a title other than ‘Mr’ or ‘Ms’ (such as ‘Dr’, ‘Prof’, etc).

Examples Cordillera of the Andes Boundary (Argentina v Chile) (Report of the Tribunal Appointed by the Arbitrator) (1902) 9 RIAA 39.

Southern Bluefin Tuna (Australia v Japan) (Jurisdiction and Admissibility) (2000) 39 ILM 1359. [Not: … (Australia and New Zealand v Japan) …]

Responsibility for the Death of Letelier and Moffitt (United States of America v Chile) (Decision) (2005) 25 RIAA 1, 12–13 (Prof Orrego Vicuña).

Notes Some commonly cited report series containing state–state arbitral decisions are the Arb Mat, Hague Ct Rep (Scott), Hague Ct Rep 2d (Scott), ILR and RIAA. In accordance with rule 2.3.2, the abbreviations for report series should appear as they do in the Appendix to this Guide.

Where an otherwise unreported case is published in the International Legal Materials (abbreviated ‘ILM’), the ILM should be cited.

10.1.2 Unreported Decisions

Example Hoshin- maru

(Japan v Russia)

(Judg- ment)

(International Tribunal for the Law of

the Sea,

Case No 14,

6 August 2007)

[1]

Element Case Name Parties’ Names

Phase

Name of Arbitral Body or Tribunal

Case Number

Full Date

Pin- point

Rule Unreported state–state arbitral and tribunal decisions should be cited as shown above.

The case name, parties’ names and phase should adhere to rule 10.1.1. The name of the arbitral body or tribunal should appear as it does on

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the title page of the decision (or, where cumbersome, in a conventional shortened form).

A case number should be included only if it appears in the decision. It should appear as it does on the title page, preceded by ‘Case No’ (in accordance with rule 8.2.10). If there is no full date, as much of the full date as appears should be included.

Pinpoint references should adhere to rules 1.1.5–1.1.6. Where a decision has paragraph numbers, pinpoints should be to paragraph numbers. Where a decision has only page numbers, pinpoints should be to page numbers.

Judges’ or arbitrators’ names should be included after pinpoint references in accordance with rule 9.2.8 (so should appear only after pinpoint references to separate or dissenting opinions or declarations).

Examples Access to Information under Article 9 of the Ospar Convention (Ireland v United Kingdom) (Final Award) (Permanent Court of Arbitration, 2 July 2003) [146].

Maritime Boundary (Barbados v Trinidad and Tobago) (Award) (UNCLOS Arbitral Tribunal, 11 April 2006) [198]. [Not: … (Arbitral Tribunal Constituted Pursuant to Article 287, and in Accordance with Annex VII, of the United Nations Convention on the Law of the Sea, …]

Ports — Ethiopia’s Claim 6 (Ethiopia v Eritrea) (Final Award) (Eritrea Ethiopia Claims Commission, 19 December 2005) [26].

10.2 Individual–State Decisions (including Investor– State Decisions)

10.2.1 Reported Decisions

Example Olguín v Paraguay

(Jurisdiction) (2004) 6 ICSID Rep 154 , 158

Element Parties’ Names

Phase Year, Volume and

Report Series Starting

Page Pinpoint

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Rule Reported individual–state arbitral and tribunal decisions should be cited as shown above. Parties’ names should adhere to rule 2.1. The phase should adhere to rule 10.1.1. The year, volume and report series should adhere to rules 2.2–2.3. The starting page should adhere to rule 2.4.

Pinpoint references should adhere to rule 9.2.7. Judges’ or arbitrators’ names should be included after pinpoint references in accordance with rule 10.1.1 (so should appear only after pinpoint references to separate or dissenting opinions or declarations).

Examples Chas T Main International Inc v Mahab Consulting Engineers Inc (Award) (1983) 3 Iran–US CTR 270.

Southern Pacific Properties (Middle East) Ltd v Egypt (Decision on Jurisdiction of 27 November 1985) (1983) 3 ICSID Rep 112, 129–30.

Azurix Corporation v Argentina (Jurisdiction) (2004) 43 ILM 262, 282.

Notes Some commonly cited report series containing investor–state arbitral decisions are the Iran–US CTR and ICSID Rep. In accordance with rule 2.3.2, the abbreviations for report series should appear as they do in the Appendix to this Guide.

Disputes between individuals and international organisations (in international forums applying international law) should also be cited in accordance with this rule or rule 10.2.2.

10.2.2 Unreported Decisions

Example Enron

Corporation v Argentina

(Juris- diction)

(ICSID Arbitral Tribunal,

Case No ARB/01/3,

14 January 2004)

[39]

Element Parties’ Names

Phase Name of

Arbitral Body or Tribunal

Case Number

Full Date Pin- point

Rule Unreported individual–state arbitral and tribunal decisions should be cited as shown above.

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Parties’ names should adhere to rule 2.1. A phase should be included only if it appears in the decision and should adhere to rule 10.1.1. The name of the arbitral body or tribunal, case number and full date should adhere to rule 10.1.2.

Judges’ or arbitrators’ names should be included after pinpoint references in accordance with rule 10.1.1 (so should appear only after pinpoint references to separate or dissenting opinions or declarations).

Examples Re Polystyrene and Impact Crystal from the United States of America (United States of America v Mexico) (Panel Decision) (North American Free Trade Agreement Chapter 19 Panel, Case No MEX- 94-1904-03, 12 September 1996).

Keeney v Secretary-General of the United Nations (United Nations Administrative Tribunal, Judgement No 6, 4 September 1951).

Phoenix Action Ltd v Czech Republic (Award) (ICSID Arbitral Tribunal, Case No ARB/06/5, 15 April 2009) [54].

Trans-Global Petroleum Inc v Jordan (Consent Award) (ICSID Arbitral Tribunal, Case No ARB/07/25, 8 April 2009) [12].

CMS Gas Transmission Co v Argentina (Annulment) (ICSID Arbitral Tribunal, Case No ARB/01/8, 25 September 2007) [158]–[159].

Tokelés v Ukraine (Jurisdiction) (ICSID Arbitral Tribunal, Case No ARB/02/18, 29 April 2004) [27] (President Weil).

10.3 Subsequent References

Rule ‘Ibid’ should be used for all materials in this chapter (in accordance with rule 1.4.1).

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Other subsequent references should adhere to rule 2.14. In accordance with rule 2.14, it may be necessary to give an international arbitral or tribunal decision a short title incorporating its phase to distinguish it from other decisions with the same parties.

‘Above n’ should not be used for any materials in this chapter.

Examples 17 Boundary Dispute between India and Pakistan Relating to the Interpretation of the Report of the Bengal Boundary Commission, 12 and 13 August 1947 (India v Pakistan) (Decisions) (1997) 21 RIAA 3, 13 (‘Boundary Dispute (Decisions)’).

18 Ibid 16. … 27 Boundary Dispute (Decisions) (1997) 21 RIAA 3, 15.

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11 International Criminal Tribunals and Courts

11.1 Basic Documents

11.1.1 Constitutive Documents

Rule Constitutive documents of international criminal tribunals and courts should be cited in accordance with the appropriate rules of this Guide for the source type.

Where the constitutive document of an international criminal tribunal or court was (partly) created by a UN Security Council resolution, an appropriate short title (usually that of the instrument or an abbreviated version, for example, ‘Statute of the International Tribunal for Rwanda’) should be included in accordance with rule 8.5 (or rule 8.2.12 for an annex) after the initial citation of the resolution or the relevant annex. Subsequent references should appear in the form:

Short Title Pinpoint .

Where an amendment is important, or where it is important to indicate the state of a constitutive document at a particular point in time, the amending instrument should be included in the form:

Citation of Original Constitutive Document , as amended by Citation of Amending Instrument .

Where this is the first reference to a constitutive document, the short title should appear after the citation of the amending instrument.

Pinpoint references should adhere to rule 7.5 and should generally be to articles and paragraphs.

Examples 22 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).

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23 SC Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc S/RES/955 (8 November 1994) annex (‘Statute of the International Tribunal for Rwanda’).

… 25 Statute of the International Criminal Tribunal for Rwanda art 2. 26 SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/RES/827

(25 May 1993), as amended by SC Res 1877, UN SCOR, 64th sess, 6155th mtg, UN Doc S/RES/1877 (7 July 2009) (‘ICTY Statute’).

27 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, signed 16 January 2002, 2178 UNTS 137 (entered into force 12 April 2002) annex (‘Statute of the Special Court for Sierra Leone’).

11.1.2 Rules

Rule The rules of international criminal tribunals and courts should be cited as follows:

Name of Tribunal or Court , Title of Rules , Doc No Document Number (adopted Full Date ) Pinpoint .

A document number should be included only where it appears on the rules. It should be preceded by ‘Doc No’ and adhere to rule 8.2.10. Where rules have been revised, the full date should be the date of adoption of the revision.

Pinpoint references should adhere to rule 7.5 and should generally be to rules and sub-rules.

Examples

International Criminal Court, Rules of Procedure and Evidence, Doc No ICC-ASP/1/3 (adopted 9 September 2002) r 74.

Extraordinary Chambers in the Courts of Cambodia, Internal Rules (Ver 4) (adopted 11 September 2009) r 23.

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11.2 Cases

Example Prosecutor v Sesay

(Sentencing Judgement)

(Special Court for

Sierra Leone,

Trial Chamber

Case No SCSL-04-

15-T,

8 April 2009)

[12]

Element Parties’ Names

Phase Court Chamber Case

Number Full Date

Pin- point

Rule 11.2.1 11.2.2 11.2.3 11.2.4 11.2.5 11.2.6 11.2.7

11.2.1 Parties’ Names

Rule Parties’ names should appear in italics in the form:

Prosecutor v Surname of Defendant

The order of the names should be reversed for appeals (if they are on the decision itself). Where there are multiple defendants or appellants, only the name of the first defendant or appellant should be included.

Examples Prosecutor v Nikolić (Sentencing Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No IT-94- 2-S, 18 December 2003).

Prosecutor v Lubanga (Decision on the Manner of Questioning Witnesses by the Legal Representatives of Victims) (International Criminal Court, Trial Chamber I, Case No ICC-01/04-01/06-2127, 16 September 2009) [6]. [Not: Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga Dyilo …]

Simba v Prosecutor (Judgement) (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No ICTR-01-76-A, 27 November 2007) [40]–[41].

Prosecutor v Prlić (Decision on Defence Motion to Reopen Its Case) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber III, Case No IT-04-74-T, 3 July 2009). [Not: The Prosecutor v Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić, Berislav Pušić … nor Prosecutor v Prlić et al …]

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11.2.2 Phase

Rule The phase should be italicised and appear in parentheses. Capitalisation should adhere to rule 1.7. The phase should be included as it appears on the judgment (including any date in the name of the phase). However, the defendant’s name should be omitted from the phase if the name is included in accordance with rule 11.2.1.

Examples Prosecutor v Blaškič (Decision on the Prosecution and Defence Motions Dated 25 January 1999 and 25 March 1999 Respectively) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber I, Case No IT-95-14-T, 22 April 1999) 4.

Prosecutor v Al Bashir (Warrant of Arrest) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-1, 4 March 2009). [Not: … (Warrant of Arrest for Omar Hassan Ahmad Al Bashir) …]

11.2.3 Court

Rule The name of the court should be included in its commonly used shortened form (if any exists), not its full elaborate form.

Example Prosecutor v Karadžić (Decision on Prosecution Motion Seeking Determination that the Accused Understands English for the Purposes of the Statute and Rules of Procedure and Evidence) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber III, Case No IT-95-5/18-PT-S, 26 March 2009) [6]. [Not: … (International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, …]

11.2.4 Chamber

Rule The name of the chamber should include both: • the type of chamber (where an international criminal tribunal

or court has multiple types of chambers); and

170 Part IV — International Materials

• any numerical designation given to the chamber, which should appear in Roman numerals.

Examples Prosecutor v Tadić (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-94-1-A, 15 July 1999).

Prosecutor v Ntaganda (Warrant of Arrest) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-02/06-18, 22 August 2006).

Note The International Criminal Court has three types of chambers: Pre-Trial Chambers, Trial Chambers and Appeals Chambers. Other international criminal tribunals and courts often have one or several Trial Chambers and an Appeals Chamber. Such chambers are typically numbered using Roman numerals (for example, ‘Trial Chamber II’).

11.2.5 Case Number

Rule The case number should be preceded by the words ‘Case No’. Otherwise, it should adhere to rule 8.2.10. In particular:

• the case number should appear as it does on the judgment cited (including any component specific to that document, where available);

• full stops should not be used in abbreviations, but should be reproduced if they are used within a case number; and

• where there are multiple case numbers, all should be included (preceded by ‘Case Nos’).

Examples Prosecutor v Renzaho (Decision on Motion for Extension of Time for the Filing of Notice of Appeal and Brief in Reply) (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No ICTR-97- 31-A, 22 September 2009) [6].

Prosecutor v Kunarac (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case Nos IT-96-23-T and IT-96-23/1-T, 22 February 2001).

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Note The case number should be that assigned by the relevant international criminal tribunal or court.

11.2.6 Full Date

Rule The full date of the judgment cited should be included.

Example Prosecutor v Kambanda (Decision Ordering Continued Detention) (International Criminal Tribunal for Rwanda, Trial Chamber I, Case No ICTR-97-23-T, 1 May 1998).

11.2.7 Pinpoint Reference

Rule Pinpoint references should adhere to rules 1.1.5–1.1.6 and should be to paragraph numbers.

Example Prosecutor v Jokić (Judgement on Sentencing Appeal) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-01-42/1-A, 30 August 2005) [24]. [Not: … 9 [24].]

11.2.8 Identifying Judges

Rule Judges’ names should be included after pinpoint references in accordance with rule 9.2.8. In particular:

• where a judgment (including a ‘principal judgment’) of a tribunal or court is referred to, neither the judges’ names nor ‘(The Court)’ should be included after a pinpoint reference;

• judges’ names should be included after pinpoint references to separate or dissenting opinions; and

• ‘Judge’ should be written out in full before a judge’s name.

Examples Prosecutor v Jelisić (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber I, Case No IT-95-10-T, 14 December 1999) [105].

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Prosecutor v Erdemović (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-96-22-A, 7 October 1997) [6] (Judge Stephen).

11.3 Reports of Cases

Rule It is generally unnecessary to cite reports of judgments of international criminal tribunals and courts due to their wide availability. However, where a judgment is difficult to locate or where there is good reason for doing so, a report of the judgment may be cited.

Reported judgments of international criminal tribunals should be cited as follows:

Parties’ Names ( Phase ) Year, Volume and Report Series Starting Page , Pinpoint .

Parties’ names and the phase should adhere to rules 11.2.1–11.2.2. The year, report series and starting page should adhere to rules 2.2–2.4. Pinpoint references should adhere to rule 9.2.7. The inclusion of judges’ names should adhere to rule 11.2.8.

The name of the international tribunal or court and the relevant chamber may be included after any pinpoint or judges’ names in accordance with rule 2.6. It should appear in the form:

( Conventional Shortened Name of Tribunal or Court , Chamber )

The name of the tribunal or court and the chamber should adhere to rules 11.2.3–11.2.4.

Example Prosecutor v Blaškič (Objection to the Issue of Subpoenae Duces Tecum) (1997) 110 ILR 688, 693 [15] (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber).

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11.4 Subsequent References

Rule ‘Ibid’ should be used for all materials in this chapter (in accordance with rule 1.4.1).

In other subsequent references:

• citations of the basic documents of international criminal tribunals and courts should adhere to rule 11.1 or the appropriate rules of this Guide for the source type; and

• citations of decisions of international criminal tribunals and courts (see rules 11.2–11.3) should adhere to rule 2.14.

In accordance with rule 2.14, it may be useful to give a decision of an international criminal tribunal or court a short title incorporating its phase or trial/appellate status to distinguish it from other decisions relating to the same parties.

‘Above n’ should not be used for any materials in this chapter.

Examples 24 International Criminal Tribunal for the Former Yugoslavia, Rules of Procedure and Evidence, Doc No IT/32/Rev.44 (adopted 10 December 2009) (‘ICTY Rules’).

… 26 ICTY Rules r 3(F). 27 Serushago v Prosecutor (Reasons for Judgment) (International

Criminal Tribunal for Rwanda, Appeals Chamber, Case No ICTR- 98-39-A, 6 April 2000) (‘Serushago Appeal’).

28 Ibid [21]–[22]. … 30 Serushago Appeal (International Criminal Tribunal for Rwanda,

Appeals Chamber, Case No ICTR-98-39-A, 6 April 2000) [27].

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12 International Economic Materials

12.1 World Trade Organization

12.1.1 Constitutive and Basic Documents

Rule The Marrakesh Agreement Establishing the World Trade Organization should be cited in accordance with chapter 7.

The other agreements and understandings of the World Trade Organization (‘WTO’) are annexed to the Marrakesh Agreement, and should be cited as follows:

Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered

into force 1 January 1995) Pinpoint to Relevant Annex (‘ Title of Agreement or Understanding ’).

The title of the relevant agreement or understanding (or a commonly used abbreviated version) should appear after the pinpoint to the annex containing it (in accordance with rule 7.6). Agreements or understandings annexed to the Marrakesh Agreement should not be cited as separate treaties.

Subsequent references should be cited as follows:

Short Title of Agreement or Understanding Pinpoint .

Examples Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995).

Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘General Agreement on Tariffs and Trade 1994’).

Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘Anti-Dumping Agreement’).

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Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 2 (‘DSU’).

Note Annexes 1A and 4 to the Marrakesh Agreement both contain more than one agreement or understanding. It is thus necessary to include the name of the relevant agreement or understanding as a short title when referring to WTO agreements or understandings other than the Marrakesh Agreement itself (to avoid ambiguity).

12.1.2 Official WTO Documents

Example

Implementation of Paragraph 6 of the

Doha Declaration on the TRIPS Agreement

and Public Health,

WTO Doc WT/L/540

(2 September

2003)

(Decision of 30 August

2003)

para 2(a)

Element Document Title Document Number

Full Date Document

Description Pin- point

Rule An official WTO document (except an Appellate Body report, panel report or arbitrator’s decision) should be cited as shown above.

The title should appear in italics and be included as it appears in the document, subject to chapter 1. In particular:

• punctuation should adhere to rule 1.6.1 (so full stops should not be used in abbreviations); and

• capitalisation should adhere to rule 1.7.

The document number should adhere to rule 8.2.10 (so full stops should not be used in abbreviations but the document number should be reproduced exactly as it appears, with any punctuation).

Where there is not a full date in the document, as much of the full date as appears should be included. The date of adoption (if any) may be included in addition to the full date in the form:

( Full Date of Document , adopted Full Date of Adoption )

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A document description should be omitted if it does not appear in the WTO document.

Pinpoint references to resolutions, decisions, declarations, waivers and other documents in the nature of a treaty should adhere to rule 3.1.4 (and the pinpoint abbreviations in that rule should be used). Pinpoint references to documents in the nature of secondary sources should adhere to rules 1.1.5–1.1.6 and pinpoint references should be to paragraphs (in square brackets).

Annexes and schedules may be cited in accordance with rule 8.2.12.

Examples India — Measures Affecting Customs Duties, WTO Doc WT/DS150/1, G/L/266 (3 November 1998) (Request for Consultations by the European Communities).

Doha Work Programme, WTO Doc WT/MIN(05)/DEC (22 December 2005, adopted 18 December 2005) (Ministerial Declaration) para 50(1).

Notification, WTO Doc G/TBT/N/BHR/188 (24 February 2010) [7].

Preferential Tariff Treatment for Least-Developed Countries, WTO Doc WT/L/304 (17 June 1999, adopted 15 June 1999) (Decision on Waiver) paras 1–2, 4.

Past Negotiations and Consultations on Tropical Products, WTO Doc TN/AG/S/17 (10 February 2005) (Note by the Secretariat) [32]–[33].

Accession of the People’s Republic of China, WTO Doc WT/L/432 (23 November 2001) (Decision of 10 November 2001) annex 7 (‘Reservations by WTO Members’).

Note The document description of a WTO document ordinarily appears below the title. It usually appears underlined and in parentheses.

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12.1.3 WTO Panel, Appellate Body and Arbitration Decisions

Panel Report,

Colombia — Indicative Prices and Restrictions

on Ports of Entry,

WTO Doc WT/DS366

(27 April 2009)

[7.1]

Examples Appellate

Body Report,

United States — Continued Existence and Application of

Zeroing Methodology,

WTO Doc WT/DS350

/AB/R, AB-2008-

(4 February

2009) [171]

Element Document Description

Case Name Document Number

Full Date Pin- point

Rule A WTO panel report, Appellate Body report or decision of the arbitrator should be cited as shown above.

The document description should be ‘Panel Report’, ‘Appellate Body Report’ or ‘Decision by the Arbitrator’ as appropriate.

The case name should appear in italics and be included as it appears in the report, subject to chapter 1. In particular:

• punctuation should adhere to rule 1.6.1 (so full stops should not be used in abbreviations); and

• capitalisation should adhere to rule 1.7.

Case names of subsequent stages in proceedings between the same parties should include the second subtitle in the report, preceded by an em-dash (for example, ‘— Recourse to Article 21.5 by …’ or ‘— Recourse to Arbitration by … under …’).

Appellate Body reports and arbitration decisions should include their unique document designation (the numbers commencing ‘AB-’ and ‘ARB-’ respectively) after the WTO document number, preceded by a comma.

A date of adoption may be included in accordance with rule 12.1.2. Where a report has not been adopted, ‘unadopted’ may be included after the full date, preceded by a comma (for example, ‘(12 May 2007, unadopted)’).

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A citation of the Dispute Settlement Reports (‘DSR’) may be included after the full date. It should appear in the form:

DSR Year : Volume , Starting Page (for example, ‘DSR 1999:III, 1377’).

Pinpoint references should adhere to rules 1.1.5–1.1.6. They should be to paragraphs and should appear in square brackets. Even where a DSR citation is included, page numbers should not be included in pinpoint references. Pinpoint references should not be preceded by a comma, unless a DSR citation is included.

Examples Panel Report, China — Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WTO Doc WT/DS362/R (26 January 2009) [7.28]–[7.50].

Panel Report, United States — Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina — Recourse to Article 21.5 of the DSU by Argentina, WTO Doc WT/DS268/RW (30 November 2006) [7.51]–[7.52].

Appellate Body Report, Australia — Measures Affecting Importation of Salmon, WTO Doc WT/DS18/AB/R, AB-1998-5 (20 October 1998) [105].

Decision by the Arbitrator, Brazil — Measures Affecting Imports of Retreaded Tyres — Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes, WTO Doc WT/DS332/16, ARB-2008-2/23 (29 August 2008) [25]–[28].

Panel Report, Guatemala — Anti-Dumping Investigation Regarding Portland Cement from Mexico, WTO Doc WT/DS60/R (19 June 1998, adopted 23 November 1998) DSR 1998:IX, 3797, [4.49].

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12.2 General Agreement on Tariffs and Trade

12.2.1 Official GATT Documents

Example Meeting of 19–20 October 1983,

GATT Doc CG.18/W/77

(24 October 1983)

(Opening Remarks by Chairman)

[4]

Element Document Title Document Number

Full Date Document Description

Pin- point

Rule A citation of an official document of the General Agreement on Tariffs and Trade (‘GATT’) should appear as shown above.

The title and full date (including any date of adoption) should adhere to rule 12.1.2.

The document number should adhere to rule 12.1.2, but should be included only if it appears in the document. If there is no document number, a comma should not follow the document title.

The document description should adhere to rule 12.1.2 (so should be included only if it appears in the document). However, if the document description includes the full date, that date should be omitted from the description.

Where a document is reproduced in Basic Instruments and Selected Documents (abbreviated ‘GATT BISD’), a citation of GATT BISD should be included after the full date. Citations of documents in the original volumes of GATT BISD should appear as follows (with the volume number in Roman numerals):

GATT BISD Volume No / Starting Page (for example, ‘GATT BISD I/120’).

Citations of GATT BISD supplements should appear as follows:

GATT BISD Supplement No S / Starting Page (for example, ‘GATT BISD 31S/114’).

180 Part IV — International Materials

Pinpoint references should adhere to rule 12.1.2. However, where a document does not have paragraph numbers, pinpoint references should be to page numbers. There should be no punctuation between the full date and the pinpoint. However, where a citation of GATT BISD is included, a comma should precede the pinpoint reference.

Examples Communication from the Republic of the Philippines — Revised Conditional Offer by the Philippines on Initial Commitments on Trade in Services, GATT Doc MTN.GNS/W/131/Rev.1/Corr.1 (16 October 1992) (Corrigendum).

Agreement on Trade in Civil Aircraft — Status of Acceptances on 1 July 1980, GATT Doc AIR/12 (2 July 1980) (Note by the Secretariat) 2–3.

Waiver in Respect of the Trust Territory of the Pacific Islands (8 September 1948) (Decision) GATT BISD II/9, para 2.

Report on the 1993 Consultation with the Republic of South Africa, GATT Doc BOP/R/211 (30 July 1993) [5].

European Communities — Transitional Measures to Take Account of the External Economic Impact of German Unification, GATT Doc L/6792 (13 December 1990) (Decision) GATT BISD 37S/296. [Not: … L/6792 (Decision of 13 December 1990) …]

Notes Some early GATT documents do not have a GATT document number. Where possible, such documents should be cited in GATT BISD.

GATT BISD was first published in volumes I to IV. A revised volume of GATT BISD I (denoted ‘IR’) was also published. In 1952, the first Supplement (GATT BISD 1S) was published, and publication of GATT documents continued in the Supplements.

12.2.2 GATT Panel Reports

Rule GATT Panel reports should be cited in the same manner as WTO panel reports (in accordance with rule 12.1.3). However, GATT BISD references should appear instead of DSR references where available (and should adhere to rule 12.2.1).

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In accordance with rule 12.1.3, even where a GATT BISD reference is included, pinpoint references should be to paragraph numbers, which should appear in square brackets.

Examples GATT Panel Report, United States — Taxes on Petroleum and Certain Imported Substances, GATT Doc L/6175 (5 June 1987, adopted 17 June 1987) GATT BISD 34S/136, [4.1.1]–[4.1.4].

GATT Panel Report, EEC — German Exchange Rate Scheme for Deutsche Airbus, GATT Doc SCM/142 (4 March 1992, unadopted) [5.9].

12.3 Investment and Trade Treaties and Investor–State Arbitrations

Rule Investment and trade treaties (such as bilateral investment treaties and free trade agreements) should be cited in accordance with chapter 7.

Investor–state arbitrations should be cited in accordance with chapter 10.

Examples North American Free Trade Agreement, signed 17 December 1992, [1994] CTS 2 (entered into force 1 January 1994) art 2005. United Parcel Service of America Inc v Canada (Merits) (North American Free Trade Agreement Chapter 11 Arbitral Tribunal, 24 May 2007) [119]–[120].

12.4 Subsequent References

Rule ‘Ibid’ should be used for all materials in this chapter (in accordance with rule 1.4.1).

Other subsequent references to treaties should adhere to rule 7.6.

182 Part IV — International Materials

Other subsequent references to WTO and GATT documents should appear in full each time a source is referred to. However, where a WTO or GATT document is referred to frequently, it may be given a short title. The short title should adhere to rule 1.4.3 (so should be italicised and placed within single inverted commas and parentheses following the initial citation). Subsequent references should then take the form:

Short Title , WTO/GATT Doc Document Number , Pinpoint .

For subsequent references to WTO panel reports, Appellate Body reports or decisions by the arbitrator or GATT panel reports, the document description (the name of the reporting body) should be included before the short title, followed by a comma. The short title should be that commonly used for the report, unless there is good reason to do otherwise.

‘Above n’ should not be used for any materials in this chapter.

Examples 13 Ministerial Declaration on Trade in Information Technology Products, WTO Doc WT/MIN(96)/16 (13 December 1996) (‘Information Technology Agreement’).

… 17 Information Technology Agreement, WTO Doc WT/MIN(96)/16,

para 2. 18 Appellate Body Report, United States — Measures Relating to

Zeroing and Sunset Reviews — Recourse to Article 21.5 of the DSU by Japan, WTO Doc WT/DS322/AB/RW, AB-2009-2 (18 August 2009, adopted 31 August 2009) (‘US — Zeroing (Article 21.5 — Japan)’).

19 Ibid [160]. … 22 Appellate Body Report, US — Zeroing (Article 21.5 — Japan),

WTO Doc WT/DS322/AB/RW, [162].

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13 European Supranational Materials

13.1 European Union Materials

13.1.1 Official Journal of the European Union

Example

Council Directive

93/13/EEC of 5 April 1993 on

Unfair Terms in Consumer Contracts

[1993] OJ L 95 /29 , art 3(1)

Element Document Title Year Official Journal

Series Issue

Number Starting

Page Pinpoint

Rule A reference to a document of the European Union (‘EU’), European Communities (‘EC’) or predecessor organisations should include a citation of the Official Journal of the European Union (abbreviated ‘OJ’) where possible.

The document title should appear in italics and as it does on the document cited, subject to chapter 1. In particular:

• punctuation should adhere to rule 1.6.1 (so full stops should not be used in abbreviations); and

• capitalisation should adhere to rule 1.7.

The year is that of publication in the OJ.

For documents published from 1 January 1968, the series should be included after ‘OJ’, preceded by a space. Legislative acts are contained in the ‘L’ series (abbreviated ‘OJ L’), and information and notices are contained in the ‘C’ series (abbreviated ‘OJ C’).

The issue number and starting page should be separated by an (unspaced) slash (for example, ‘22/34’).

184 Part IV — International Materials

Part of the C series is published only in electronic format. References to documents in this part of the C series should appear as follows:

Document Title [ Year ] OJ C Issue Number E / Starting Page , Pinpoint .

For documents published before 1 January 1974, a parallel citation of the English language Special Edition of the Official Journal (‘OJ Spec Ed’), preceded by a semi-colon, should be included (where possible). It should appear in the form:

[ Year ] OJ Spec Ed Starting Page , Pinpoint .

Pinpoint references should adhere to rules 1.1.5–1.1.6 and be preceded by a comma. Pinpoints may be to pages, paragraphs, articles or other internal divisions of the relevant document. Abbreviations in pinpoints should adhere to rule 3.1.4.

Examples Commission Decision of 18 December 2002 Relating to National Provisions on Limiting the Importation and Placement on the Market of Certain NK Fertilisers of High Nitrogen Content and Containing Chlorine Notified by France Pursuant to Article 95(5) of the EC Treaty [2003] OJ L 1/72, 79.

Notice for the Attention of Ghuma Abd’rabbah concerning His Inclusion in the List Referred to in Articles 2, 3 and 7 of Council Regulation (EC) No 881/2002 Imposing Certain Specific Restrictive Measures Directed against Certain Persons and Entities Associated with Usama bin Laden, the Al-Qaida Network and the Taliban [2009] OJ C 230/29, paras 3(a), 4, 6.

Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on Substances That Deplete the Ozone Layer [2000] OJ L 244/1, art 3(1).

European Parliament — 2008–2009 Session — Sittings of 20 to 23 October 2008 — Strasbourg — Minutes — Proceedings of the Sitting [2009] OJ C 3 E/1.

Regulation (EEC) No 2005/70 of the Commission of 6 October 1970 on the Classification of Vine Varieties [1970] OJ L 224/1; [1970] OJ Spec Ed 623, art 2(1), annex.

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Notes The Official Journal of the European Communities became the Official Journal of the European Union on 1 February 2003. Both, as well as previous equivalent publications, are abbreviated ‘OJ’.

Within the EU, legislative acts include regulations, directives and decisions of the various organs (other than EU courts).

The OJ Spec Ed is a non-binding official translation of some documents published in the OJ into the languages of non-member states or states to whom the document does not apply. From 1 January 1974, the official OJ was published in English, obviating the need to refer to the OJ Spec Ed from this date.

Until 30 June 1967, the pagination of the OJ was continuous. Thus, an issue number is not necessary to identify documents up to this date.

13.1.2 Constitutive Treaties of the European Union

Rule The constitutive treaties of the EU and EC (and predecessor organisations) should be cited as treaties in accordance with chapter 7. However:

• a reference to the OJ (where available) should replace a reference to the UNTS or an official national treaty series; and

• a short title or amendment information must be included in accordance with this rule.

When referring to constitutive treaties of the EU and EC as in force (that is, as amended and renumbered from time to time):

• a citation of the latest consolidation of the treaty in the OJ should be included (if available); and

• the ‘short title for current references’ in the table below should be included in the first citation and used for subsequent references (in accordance with rule 7.6).

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When referring to constitutive treaties of the EU and EC as made (prior to any amendment):

• a citation of the UNTS or the OJ containing the treaty as made should be included; and

• the ‘short title for historical references’ should be included in the first citation and used for subsequent references (in accordance with rule 7.6).

Treaty Short Title for Current References

Short Title for Historical References

Treaty on European Union EU Treaty on European Union

Treaty on the Functioning of the European Union

FEU Treaty on the Functioning of the European Union

Treaty Establishing the European Community

EC EC Treaty

Treaty Establishing the European Atomic Energy Community

EA EAEC Treaty

Treaty Instituting the European Coal and Steel Community

CS ECSC Treaty

Where the fact of amendment is important, or when referring to a foundational EU treaty after amendment by a specific intermediate amending treaty, amendment information may be included (in accordance with rule 3.8) in the form:

Citation of Foundational EU Treaty , as amended by Citation of Amending Treaty .

The dates of opening for signature and entry into force for all foundational EU treaties should adhere to rule 7.3 (so should be those of the treaty as made), regardless of whether the treaty is referred to as in force or historically.

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Examples Treaty on European Union, opened for signature 7 February 1992, [2009] OJ C 115/13 (entered into force 1 November 1993) (‘EU’). [cited as amended]

Treaty on the Functioning of the European Union, opened for signature 7 February 1992, [2009] OJ C 115/199 (entered into force 1 November 1993) (‘FEU’). [cited as amended]

Treaty Establishing the European Atomic Energy Community, opened for signature 25 March 1957, 298 UNTS 167 (entered into force 1 January 1958) (‘EA’). [cited as amended]

Treaty on European Union, opened for signature 7 February 1992, [1992] OJ C 191/1 (entered into force 1 November 1993) (‘Treaty on European Union’). [cited historically]

Treaty Establishing the European Community, opened for signature 7 February 1992, [1992] OJ C 224/6 (entered into force 1 November 1993) (‘EC Treaty’). [cited historically]

Treaty Establishing the European Economic Community, opened for signature 25 March 1957, 298 UNTS 11 (entered into force 1 January 1958) (‘EEC Treaty’).

Treaty Instituting the European Coal and Steel Community, signed 18 April 1951, 261 UNTS 140 (entered into force 23 July 1952) (‘ECSC Treaty’). [cited historically]

Treaty on European Union, opened for signature 7 February 1992, [1992] OJ C 191/1 (entered into force 1 November 1993), as amended by Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, opened for signature 2 October 1997, [1997] OJ C 340/1 (entered into force 1 May 1999).

Treaty Establishing the European Community, opened for signature 7 February 1992, [1992] OJ C 224/6 (entered into force 1 November 1993), as amended by Treaty of Nice Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, opened for signature 26 February 2001, [2001] OJ C 80/1 (entered into force 1 February 2003).

188 Part IV — International Materials

Treaty on European Union, opened for signature 7 February 1992, [1992] OJ C 191/1 (entered into force 1 November 1993) art 2, as amended by Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, opened for signature 13 December 2007, [2007] OJ C 306/1 (entered into force 1 December 2009) art 1(4).

Notes The system of short titles used in this rule is adapted from that used by the European Court of Justice, due to the amendment and renumbering of the provisions in the various constitutive EU treaties. The Treaty of Amsterdam (with effect from 1 May 1999) renumbered several provisions of the Treaty on European Union and the EC Treaty. The Treaty of Nice (with effect from 1 February 2003) inserted several new provisions into both treaties. The Treaty of Lisbon (with effect from 1 December 2009) recast the EC Treaty as the Treaty on the Functioning of the European Union and substantially amended and renumbered the Treaty on European Union.

The ECSC Treaty is commonly known as the ‘Treaty of Paris’. The EEC Treaty is commonly known as the ‘Treaty of Rome’. The Treaty on European Union is commonly known as the ‘Treaty of Maastricht’.

13.1.3 Courts of the European Union

Costa v ENEL (C-6/64) [1964] ECR 585 , 594 Examples Vainker v European

Parliament (T-48/01) [2004] ECR-SC II-197 , II-207

Element Parties’ Names Case Number

Year Report Series

Starting Page

Pinpoint

Rule Reported decisions of the Court of Justice of the European Union (‘ECJ’), the General Court of the European Union (‘General Court’) and the European Union Civil Service Tribunal should be cited as shown above.

The parties’ names, including those of EU organs, should be included as they appear on the first page of the report, subject to chapter 1. They should be italicised and separated by ‘v’.

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The case number (including the prefixes ‘C-’ for cases decided by the ECJ, ‘T-’ for cases decided by the General Court, and ‘F-’ for cases decided by the European Union Civil Service Tribunal) should be included after the parties’ names in parentheses. It should not be italicised.

Pinpoint references should adhere to rule 9.2.7. However, the starting page and page pinpoint references for decisions in the ECR since 1990 should include the prefix ‘I-’ (for decisions of the ECJ) and ‘II-’ (for decisions of the General Court). Page references to judgments in the ECR-SC should include the prefix ‘II-’. Spans of page numbers should adhere to rule 1.12.1. The prefixes ‘I-’ or ‘II-’ should not be repeated in the second number of a page span.

Decisions not reported in the ECR or ECR-SC should be cited as follows:

Parties’ Names ( Name of Court/Tribunal , Case Number , Full Date ) Pinpoint .

The name of the court should be included as it appears on the decision. Pinpoint references should be to paragraphs.

Examples Grad v Finanzamt Traunstein (C-9/70) [1970] ECR 825, 833.

Ireland v Council of the European Communities (C-151/73) [1974] ECR 285, 298 [21]–[23].

Germany v Commission of the European Communities (C-301/96) [2003] ECR I-9919, I-9949–51. [Not: … I-9919, I-9949–I-9951.]

O’Casey v Commission of the European Communities (T-184/94) [1998] ECR-SC II-565, II-577–8 [52]–[54].

Commission of the European Communities v Luxembourg (Court of Justice of the European Communities, C-34/07, 29 November 2007) [14]–[15].

Clearwire Corp v Office for Harmonisation in the Internal Market (Court of First Instance of the European Communities, T-399/08, 19 November 2009).

190 Part IV — International Materials

Vinci v European Central Bank (European Union Civil Service Tribunal, F-130/07, 16 September 2009) [58].

Notes The Court of Justice of the European Union is commonly referred to as the ‘European Court of Justice’. The General Court was the Court of First Instance of the European Communities (‘CFI’) until December 2009.

Decisions of the Court of Justice are published in Reports of Cases before the Court and, since 1990, Reports of Cases before the Court of Justice and the Court of First Instance (both abbreviated ‘ECR’). Decisions of the General Court are published (from 1990) in Reports of Cases before the Court of Justice and the Court of First Instance.

Since 1995, cases between staff and EU institutions heard by the CFI and (since its creation in 2005) the European Union Civil Service Tribunal are reported in European Court Reports — Reports of European Community Staff Cases (abbreviated ‘ECR-SC’). Judgments are printed in Section II of the ECR-SC. (Section I summarises decisions and orders. It is thus preferable to cite to Section II, unless the case in Section II is not in an accessible language.)

Other report series (such as the CMLR) that contain reports of cases decided by EU courts and tribunals should be used where a case is not reported in the ECR or ECR-SC (in preference to citing a case as unreported).

13.2 Council of Europe

13.2.1 Basic Documents of the Council of Europe

Rule The Statute of the Council of Europe should be cited (in accordance with chapter 7) as follows:

Statute of the Council of Europe, opened for signature 5 May 1949, 8 UNTS 103 (entered into force 3 August 1949).

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The Convention for the Protection of Human Rights and Fundamental Freedoms (commonly known as the ‘European Convention on Human Rights’ or ‘ECHR’) should be cited as follows:

Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221

(entered into force 3 September 1953), as amended by Relevant Amending Protocol .

Citations of substantive protocols should include details of amendments in the same manner. Citations of amending protocols should adhere to chapter 7 (and the ETS should be the treaty series cited, where available).

Examples Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953), as amended by Protocol No 14bis to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 27 May 2009, CETS No 204 (entered into force 1 September 2009).

Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 20 March 1952, ETS No 9 (entered into force 18 May 1954), as amended by Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 11 May 1994, ETS No 155 (entered into force 1 November 1998).

Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Amending the Control System of the Convention, opened for signature 13 May 2004, CETS No 194 (not yet in force).

Notes The European Treaty Series (abbreviated ‘ETS’), which included Nos 1 to 193, is continued from 2004 (No 194) by the Council of Europe Treaty Series (abbreviated ‘CETS’).

The most recent amending protocol to the ECHR is Protocol No 14bis. However, when referring to the ECHR as in force for a particular state party, it may be necessary to refer to a less recent amending protocol. All states parties have ratified Protocol No 11.

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13.2.2 European Court of Human Rights

Wemhoff v Federal Republic of Germany

(1968) 7 Eur Court HR (ser A)

23 Examples

Bouchelkia v France [1997] I Eur Court

HR 47 , 67

Element Parties’ Names Year Volume Report Series

Starting Page

Pin- point

Rule Reported decisions of the European Court of Human Rights should be cited as shown above.

The parties’ names should appear in the form:

Complainant’s Surname v Respondent State

Where there are multiple complainants or respondents, only the first- named party should be included. The name of the respondent state should appear as it does on the first page of the report. If it does not appear on the first page of the report, the conventional shortened form (if any exists), rather than the full elaborate form, should be included. However, the full form should be used where this is necessary to avoid ambiguity.

Where there are multiple reported phases in a case, the phase should be included. It should be italicised and appear in parentheses after the parties’ names (for example, ‘(Preliminary Objections)’, ‘(Revision)’ and ‘(Just Satisfaction)’).

Citations of decisions until the end of 1995 (that is, decisions reported in Eur Court HR (ser A)) should not include a starting page. Where there are multiple decisions in one volume, the letter of the case should be included in the volume number, preceded by a hyphen (for example, ‘320-B’).

Citations of decisions from 1996 (that is, decisions reported in Eur Court HR) should include a volume number (in Roman numerals) after the year and a starting page.

Pinpoint references should adhere to rule 9.2.7. Judges should be identified after pinpoint references in accordance with rule 9.2.8.

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Decisions of the Court not reported in Eur Court HR (ser A) or Eur Court HR should be cited in an unofficial report series (where available).

Unreported decisions of the Court should be cited as follows:

Parties’ Names (European Court of Human Rights, Chamber , Application No Number , Full Date ) Pinpoint .

The ‘Chamber’ of the Court refers to the manner of its configuration for a case (as the ‘Grand Chamber’ or a ‘Chamber’). Pinpoint references should be to paragraphs.

Citations of pleadings reported in Eur Court HR (ser B) should appear as follows:

‘ Document Title ’, Complainant’s Surname v Respondent State [ Year ] Eur Court HR (ser B) Starting Page , Pinpoint .

Examples Campbell v United Kingdom (1992) 233 Eur Court HR (ser A).

Boujlifa v France [1997] VI Eur Court HR 2250, 2264.

The Observer v United Kingdom (1992) 216 Eur Court HR (ser A) 10–11. [Not: The Observer and The Guardian v United Kingdom …]

Leander v Sweden (1987) 116 Eur Court HR (ser A) 32 [84]. [Not: Leander Case (1987) …]

Loizidou v Turkey (Preliminary Objections) (1995) 310 Eur Court HR (ser A).

Beldjoudi v France (1992) 234-A Eur Court HR (ser A).

Slivenko v Latvia [2003] X Eur Court HR 229, 237–8 [15]–[21].

Nasri v France (1995) 320-B Eur Court HR (ser A) 28 (Judge Pettiti).

S v United Kingdom (European Court of Human Rights, Grand Chamber, Application Nos 30562/04 and 30566/04, 4 December 2008) [125].

‘The Case of Gerard Richard Lawless — Memorial Submitted by the European Commission of Human Rights’, Lawless v Ireland [1960–61] Eur Court HR (ser B) 193, 201.

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Notes Until the end of 1995, judgments of the European Court of Human Rights were published in Series A: Judgments and Decisions (abbreviated ‘Eur Court HR (ser A)’), which is organised by volume. The pagination begins again for each case (that is, in each volume or in each part of a volume denoted by a letter). From 1996, judgments of the Court have been published in Reports of Judgments and Decisions (abbreviated ‘Eur Court HR’), which is organised by year. Because the pagination is not consecutive across a volume, the volume number should be included in citations of Eur Court HR.

Decisions of the European Court of Human Rights are also published in the unofficial European Human Rights Reports (‘EHRR’), which should be cited if a case does not appear in Eur Court HR (ser A) or Eur Court HR.

Until 1988, the Court published Series B: Pleadings, Oral Arguments and Documents (abbreviated ‘Eur Court HR (ser B)’).

13.2.3 European Commission of Human Rights

Example Klass v Federal Republic of Germany

(1974) 1 Eur Comm

HR 20 , 29

Element Parties’ Names Year Volume Report Series

Starting Page

Pin- point

Rule Reported decisions of the European Commission of Human Rights should be cited as shown above.

The parties’ names should adhere to rule 13.2.2. The year should be that of the decision. A volume number and starting page should always be included. Pinpoints should adhere to rules 1.1.5–1.1.6 and be to pages.

Example X v Austria (1979) 17 Eur Comm HR 80, 85–6.

Notes Decisions of the European Commission of Human Rights were published between 1960 and 1974 in Collection of Decisions and from 1974 to 1998 in Decisions and Reports (both abbreviated ‘Eur Comm HR’).

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Until 1998, complaints under the European Convention on Human Rights were sometimes heard by the European Commission of Human Rights. Protocol 11 to the European Convention on Human Rights abrogated the Commission.

13.3 Subsequent References

Rule ‘Ibid’ should be used for all materials in this chapter (in accordance with rule 1.4.1).

Other subsequent references to treaties should adhere to rule 7.6. Other subsequent references to judicial decisions should adhere to rule 2.14. Other subsequent references to EU documents (that are not treaties or judicial decisions) should appear in full each time a source is referred to. However, where an EU document is referred to frequently, it may be given a short title. The short title should adhere to rule 1.4.3 (so should be italicised and placed within single inverted commas and parentheses following the initial citation). Subsequent references should then take the form:

Short Title OJ Citation , Pinpoint .

The OJ citation should adhere to rule 13.1.1.

‘Above n’ should not be used for any materials in this chapter.

Examples 2 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953), as amended by Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 11 May 1994, ETS No 155 (entered into force 1 November 1998) (‘ECHR’).

… 5 ECHR art 6. 6 El Boujaïdi v France [1997] VI Eur Court HR 1980, 1994 (Judge

Foighel) (‘El Boujaïdi’). … 9 El Boujaïdi [1997] VI Eur Court HR 1980, 1992–3.

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10 Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the Prospectus to Be Published When Securities Are Offered to the Public or Admitted to Trading and Amending Directive 2001/34/EC [2003] OJ L 345/64 (‘European Prospectus Directive’).

… 13 European Prospectus Directive [2003] OJ L 345/64, art 3(2).

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C anada

14 Canada

14.1 Cases

14.1.1 General Rule

Rule Canadian cases should be cited in accordance with chapter 2.

Example R v Sharpe [2001] 1 SCR 45.

Note When citing cases from Canada, it may be useful to include the name of the court in a citation (in accordance with rule 2.6) where the court is not otherwise apparent. However, this is unnecessary for references to the Supreme Court Reports (abbreviated ‘SCR’) and other report series specific to a particular court.

14.1.2 Official and Unofficial Report Series

Rule In accordance with rule 2.3, citations of Canadian cases should include a citation of an authorised report series where possible.

Where a decision is not reported in an official report series, a semi- official provincial report series or an unofficial report series, such as the Dominion Law Reports (abbreviated ‘DLR’), should be cited.

Examples AB v Minister of Citizenship and Immigration [2003] 1 FC 3.

Eli Lilly Canada Inc v Apotex Inc [2008] 2 FC 636.

The Coca-Cola Co of Canada Ltd v The Pepsi-Cola Co of Canada Ltd [1938] Ex CR 263.

Bangoura v Washington Post (2005) 258 DLR (4th) 341 (Ontario Court of Appeal).

198 Part V — Foreign Domestic Materials

Notes Only federal Canadian reports are authorised. Those series are:

Court Abbreviation Years

Supreme Court of Canada SCR 1876– Canadian Federal Courts FC 1971– Exchequer Court of Canada Ex CR 1875–1970

Semi-official provincial report series are published under the auspices of a provincial law society or Bar association. Commonly cited semi- official state report series include the AR, BCR, Nfld & PEIR, NWTR, OR, RJQ and YR (or various series of them).

14.2 Legislation

Element Title Statute Volume and Jurisdiction

Year Chapter Pinpoint

Rule 14.2.1 14.2.2 14.2.3 14.2.4 14.2.5

14.2.1 Title

Rule Canadian statute titles should adhere to rule 3.1.1, but should be followed by a (non-italic) comma. ‘The’ should be omitted from the beginning of a statute title.

Example Agri-Food Amendment Act, SS 1997, c 27. [Not: The Agri-Food Amendment Act, …]

14.2.2 Statute Volume and Jurisdiction

Rule An abbreviated form of the statute volume and jurisdiction should be included as follows:

Statute Volume Jurisdiction

The statute volume and jurisdiction should not be separated by a space or any punctuation.

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C anada

For the statute volume, a citation of the Revised Statutes or the Re-enacted Statutes (both abbreviated ‘RS’) should be included where available (for example, ‘RSC’). Otherwise, a citation of the sessional or annual volumes (abbreviated ‘S’) should be included (for example, ‘SC’).

An abbreviated version of the jurisdiction should be included (for example, ‘RSO’). The following abbreviations should be used:

Jurisdiction Abbreviation

Canada (federal) C Alberta A British Columbia BC Lower Canada LC Manitoba M New Brunswick NB Newfoundland N Newfoundland and Labrador NL Northwest Territories NWT Nova Scotia NS Nunavut Nu Ontario O Prince Edward Island PEI Province of Canada Prov C Quebec Q Saskatchewan S Upper Canada UC Yukon Territory Y

Examples Criminal Code, RSC 1985, c C-46, s 515.

Controlled Drugs and Substances Act, SC 1996, c 19, s 4.

Escheats Act, RSO 1980, c 142. [Not: … RS O 1980, …]

200 Part V — Foreign Domestic Materials

14.2.3 Year

Rule The year (or span of years) of the statute volume should be followed by a comma.

A session number (for example, ‘3rd Sess’) should be included after the year if more than one parliamentary session occurred in that year and the statute volume is divided by session (with non-consecutive chapter numbering). A supplement number (for example, ‘2nd Supp’) should be included after the year where a statute appears only in a supplement to the RS.

Session and supplement numbers should be ordinal and should adhere to rule 1.12.1 (so letters in ordinal numbers should be superscript). Session or supplement numbers should appear in parentheses. If a session or supplement number is included, the year should not be followed by a comma. Instead, the session or supplement number should be followed by a comma.

Examples Clean Air Act, SNB 1997, c C-5.2.

Criminal Law Amendment Act, RSC 1985 (1st Supp), c 27.

An Act to Amend the Essential Services Emergency Act 1966, SS 1970 (2nd Sess), c 1.

Note Statutes generally appear in a supplement to the RS where they are passed in the year of a consolidation too late to be included in that consolidation.

14.2.4 Chapter

Rule The chapter number of the statute (including any letters) should be included. Letters and numbers forming the chapter number should be separated by a hyphen.

‘Chapter’ should be abbreviated ‘c’.

Examples Arthur Wishart Act (Franchise Disclosure), SO 2000, c 3.

Interpretation Act, RSC 1985, c I-21.

Australian Guide to Legal Citation 201

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14.2.5 Pinpoint Reference

Rule Pinpoint references should be preceded by a comma. They should adhere to (and use the abbreviations in) rules 3.1.4–3.1.6.

Example Tobacco Act, SQ 1998, c 33, s 58.

14.3 Constitutions

14.3.1 Federal

Rule The federal Canadian constitutional statutes should be cited as shown below. The short titles should be used for subsequent references in accordance with rules 3.9.1–3.9.2 (and should be included regardless of whether there are subsequent references):

Canada Act 1982 (UK) c 11, sch B (‘Constitution Act 1982’).

Constitution Act 1867 (Imp), 30 & 31 Vict, c 3 (‘Constitution Act 1867’).

Subsequent references should be cited as follows:

Constitution Act 1982 Pinpoint .

Constitution Act 1867 Pinpoint .

The Canadian Charter of Rights and Freedoms should be cited (in accordance with rule 3.9.2) as follows:

Canada Act 1982 (UK) c 11, sch B pt I (‘Canadian Charter of Rights and Freedoms’).

Subsequent references should be cited as follows:

Canadian Charter of Rights and Freedoms Pinpoint .

Note The Canadian constitution is contained in both the Constitution Act 1982 (itself a schedule to a UK statute) and the Constitution Act 1867 (an imperial statute). The Canadian Charter of Rights and Freedoms is part I of the Constitution Act 1982.

202 Part V — Foreign Domestic Materials

14.3.2 Provincial and Territorial

Rule Provincial and territorial Canadian constitutions should be cited as regular legislation (in accordance with rule 14.2).

Example Constitution Act, RSBC 1996, c 66.

14.4 Delegated Legislation (Regulations)

14.4.1 Revised Federal Regulations

Rule Revised federal regulations are published in the Consolidated Regulations of Canada (abbreviated ‘CRC’). They should be cited as follows:

Title , CRC, c Chapter Number , Pinpoint .

Pinpoint references should adhere to rules 3.1.4–3.1.6 and 3.3.2.

When referring to a consolidation other than the latest version, a year should be included in parentheses after the chapter number or any pinpoint reference.

Examples Maple Products Regulations, CRC, c 289, s 9.

Air Regulations, CRC, c 2, s 201 (1955).

Note The Consolidated Regulations of Canada is a consolidation of important federal regulations. There have been five consolidations to date (in 1874, 1889, 1949, 1955 and 1978).

14.4.2 Unrevised Federal Regulations

Rule Unrevised federal regulations are published in the Statutory Orders and Regulations (abbreviated ‘SOR’). They should be cited as follows:

Title , SOR/ Year - Regulation Number , Pinpoint .

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C anada

Until 1999, only the last two digits of the year should be included. From 2000, the full year should be included.

Pinpoint references should adhere to rules 3.1.4–3.1.6 and 3.3.2.

Examples Regulations Amending the Food and Drug Regulations, SOR/98-580.

Sex Offender Information Registration Regulations (Canadian Forces), SOR/2008-247, s 2.

14.4.3 Provincial and Territorial Regulations

Rule Provincial and territorial regulations should be cited as follows: Title , Citation of Regulation , Pinpoint .

The title may be omitted. Pinpoint references should adhere to rules 3.1.4–3.1.6 and 3.3.2.

The citation of the regulation should appear as shown in the table below for the relevant jurisdiction (examples appear in parentheses):

Jurisdiction Unrevised Regulations Revised Regulations

Alberta Alta Reg Regulation No / Year

(Alta Reg 62/2009)

British Columbia

BC Reg Regulation No / Year

(BC Reg 278/2008)

Manitoba Man Reg Regulation No / Year*

(Man Reg 351/87)

Man Reg Regulation No / Year* R

(Man Reg 401/88R)

New Brunswick

NB Reg Year* - Regulation No

(NB Reg 2006-23)

204 Part V — Foreign Domestic Materials

Newfoundland (until 5 December 2000)

Nfld Reg Regulation No / Year*

(Nfld Reg 19/97)

Newfoundland and Labrador (from 6 December 2000)

NLR Regulation No / Year†

(NLR 4/09)

CNLR Regulation No / Year of Consolidation*

(CNLR 1195/96)

Northwest Territories

NWT Reg Regulation No - Year*

(NWT Reg 26-2008)

RRNWT Year of Revision , c Chapter No

(RRNWT 1990, c P-26)

Nova Scotia NS Reg Regulation No / Year

(NS Reg 235/2007)

Nunavut (from 1 April 1999)

Nu Reg Regulation No - Year†

(Nu Reg 040-99)

Ontario O Reg Regulation No / Year†

(O Reg 361/08)

RRO Year of Revision , Reg Regulation No

(RRO 1990, Reg 469)

Prince Edward Island

PEI Reg EC Year - Regulation No

(PEI Reg EC2002-249)

Quebec OC Regulation No - Year* , Full Date , GOQ Gazette Citation

(OC 764-97, 25 June 1997, GOQ 1997.II.2737)

RRQ 1981, c Chapter No , r Rule No

(RRQ 1981, c V-5, r 1)

Saskatchewan Sask Reg Regulation No / Year*

(Sask Reg 444/67)

RRS, c Chapter No , Reg Regulation No

(RRS, c C-4.01, Reg 1)

Australian Guide to Legal Citation 205

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Yukon Territory

YOIC Year / Regulation No

(YOIC 1995/87)

* Only the last two digits of the year should be used for regulations prior to 2000.

† Only the last two digits of the year should be used.

Unless otherwise indicated, the year should appear in full.

Where nothing is shown in the ‘revised regulations’ column, there are no revised regulations for that jurisdiction.

Example Elevating Devices Codes Regulation, Alta Reg 62/2009, s 3.

14.5 Other

Rule For further information on the citation of Canadian materials, see the latest edition of the Canadian Guide to Uniform Legal Citation.

206

15 China

Note The rules in this chapter should be used when citing Chinese language materials. Published translations of Chinese primary materials should be cited in accordance with rule 25.1.2 and rule 15.1 in this chapter.

15.1 Specific Rules for Chinese Language Materials

Rule In citations of Chinese primary materials, translations of elements appearing in Chinese should adhere to rule 25.1.1 (so should appear in square brackets after the element translated).

Where text in Chinese is included in a citation, it should appear as it does in the source (in simplified or traditional Chinese characters or pinyin). To avoid ambiguity, Chinese characters that appear in the source should not be transliterated into pinyin.

Chinese characters should not be italicised, in titles or otherwise. Instead, where an element of a citation would ordinarily be italicised according to the relevant rule of this Guide, Chinese characters forming that element should appear between guillemets (« »).

Examples In the document, the word ‘interior’ (‘内地’) is used instead of ‘Chinese’ to reflect the fact that Hong Kong and Macau are part of the People’s Republic of China. [Not: … the word ‘interior’ (‘neidi’) … — Original: 内地] __________ 12 «中华人民共和国循环经济促进法» [Circular Economy Promotion Law of the People’s Republic of China] (People’s Republic of

China) National People’s Congress Standing Committee, Order No 4, 29 August 2008, art 2.

13 «中华人民共和国护照法» [Passport Law of the People’s Republic of China] (People’s Republic of China) National People’s

Congress Standing Committee, Order No 50, 29 April 2006.

Australian Guide to Legal Citation 207

C hina

15.2 Cases

15.2.1 General Rule

Rule Reported Chinese cases should be cited as follows:

Case Name [ Year of Decision ] Issue Number Official Gazette or Report Series Starting Page in Report Series ,

Pinpoint .

Only those elements that appear in the report should be included.

A translation of parties’ names into English should be included where possible. Chinese names of natural persons should be transliterated into pinyin. Where the case name includes both the parties’ names and a description of the case, the translation of the case name should appear as follows:

[ Parties’ Names — Case Description ] (for example, ‘[Xinjiang Yinhai Real Property Development Co Ltd v

Xinjiang Hop Joint Stock Co Ltd — Company Transfer Contract Dispute Appeal Case]’).

The title of the report series should be translated into English where possible. Otherwise, it should be transliterated into pinyin.

Examples «兴业银行广州分行与深圳市机场股份有限公司借款合同纠纷案» [Ind- ustrial Bank Guangzhou Branch v Shenzhen Airport Co Ltd — Case of Loan Contract Dispute] [2009] 11 中华人民共和国最高人民法院公报 [Gazette of the Supreme People’s Court of the People’s Republic of China] 30, 36.

«施忠荣受贿案» [Shi Zhongrong — Case of Taking Bribes] [2009] 4 中华人民共和国最高人民检察院公报 [Gazette of the Supreme People’s Procuratorate of the People’s Republic of China] 28, 29.

Notes When citing Chinese cases, it may be useful to include the name of the court at the end of a citation in parentheses where it is not otherwise apparent (in accordance with rule 2.6).

208 Part V — Foreign Domestic Materials

Chinese courts include the following (in order of hierarchy):

Court Name in English Simplified Chinese Pinyin

Supreme People’s Court 最高人民法院 Zui Gao Ren Min Fa Yuan

High People’s Court 高级人民法院 Gao Ji Ren Min Fa Yuan

Intermediate People’s Court

中级人民法院 Zhong Ji Ren Min Fa Yuan

Basic People’s Court 基层人民法院 Ji Ceng Ren Min Fa Yuan

15.2.2 Report Series

Rule Decisions of the Supreme People’s Court (最高人民法院 [Zui Gao Ren Min Fa Yuan]) should be cited from an official government gazette where available.

Other Chinese decisions should be cited from a report series where available.

Examples «家园公司诉森得瑞公司合同纠纷案» [Jiayuan Co v Senderui Co — Contract Dispute Case] [2007] 2 中华人民共和国最高人民法院公报 [Gazette of the Supreme People’s Court of the People’s Republic of China] 39, 41.

«杨建立, 魏铃故意杀人案» [Yang Jianli, Wei Ling — Intentional Homicide Case] [2002] 4 人民法院案例选 [Selected Cases of the People’s Courts] 7 (Zheng Zhou City, He Nan Province Intermediate People’s Court, People’s Republic of China).

Notes The official report series of the Supreme People’s Court is 中华人民共和国最高人民法院公报 [Zhong Hua Ren Min Gong He Guo Zui Gao Ren Min Fa Yuan Gong Bao — Gazette of the Supreme People’s Court of the People’s Republic of China].

A commonly used report series is 人民法院案例选 [Ren Min Fa Yuan An Li Xuan — Selected Cases of the People’s Courts].

Australian Guide to Legal Citation 209

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15.2.3 Unreported Judgments

Rule Unreported Chinese judgments should be cited as follows:

Case Name , Court Name , Case Number , Full Date , Pinpoint .

The case name should adhere to rule 15.2.1.

‘People’s Republic of China’, ‘Republic of China’ or ‘Macau’ should be included in the translation of the court name if it is not otherwise apparent that the court is Chinese.

Example «焦其铸与重庆市信心农牧科技有限公司租赁合同纠纷案» [Jiao Qizhu v Confidence Farming Technology Co Ltd of Chongqing Municipality — Lease Contract Dispute Case], 重庆市第五中级人民法院 [Fifth Intermediate People’s Court of Chongqing Municipality, People’s Republic of China], 渝五中民终字第93号 [Economic Appeal No 93], 24 April 2008.

15.3 Legislative Materials

15.3.1 Chinese Legislative Acts

Rule Chinese legislative acts should be cited as follows: Title of Law ( Jurisdiction ) Promulgating Body ,

Order/Decree/Opinion No Number , Full Date of Promulgation , Pinpoint .

Only those elements that appear on the source should be included.

Generally, only the title of a legislative act should appear in Chinese with a translation. However, if there is good reason, the name of the promulgating body or the order, decree or opinion number may be included in Chinese with a translation.

The jurisdiction should be ‘People’s Republic of China’, ‘Republic of China’ or ‘Macau’ as appropriate.

To aid retrieval of the law, a citation of an official gazette or

210 Part V — Foreign Domestic Materials

publication may be included after the full date of promulgation and before any pinpoint reference.

Examples «中华人民共和国合同法» [Contract Law of the People’s Republic of China] (People’s Republic of China) National People’s Congress, 15 March 1999.

«中华人民共和国物权法» [Property Law of the People’s Republic of China] (People’s Republic of China) National People’s Congress, Order No 62, 16 March 2007.

«劳动部关于企业职工流动若干问题的通知» [Notice of Ministry of Labour on Several Issues Concerning the Movement of Employees of Enterprises] (People’s Republic of China) Ministry of Labour, 31 October 1996.

«著作權法» [Copyright Act] (Republic of China) Legislative Yuan, 10 February 2010, art 10.

«第225/2002號行政長官批示» [Order No 225/2002 of the Chief Executive] (Macau) 9 October 2002, 澳門特別行政區公報—第一組 [Macau Special Administrative Region Gazette — Part 1], No 41, 15 October 2002, 1088.

Notes Legislative materials can take the form of codes, national laws, regulations, notices, guidelines or other governmental determinations.

Older legislative acts often do not have an order, decree or opinion number.

Materials from Hong Kong should be cited in English in accordance with chapter 18.

15.3.2 Constitutions

Rule The constitution of the People’s Republic of China should be cited as follows:

«中华人民共和国宪法» [Constitution of the People’s Republic of China] Pinpoint .

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C hina

The constitution of the Republic of China should be cited as follows:

«中華民國憲法» [Constitution of the Republic of China] Pinpoint .

The constitution of Macau should be cited as follows:

«中華人民共和國澳門特別行政區基本法» [Basic Law of the Macau Special Administrative Region of the People’s Republic of China]

Pinpoint .

Examples «中华人民共和国宪法» [Constitution of the People’s Republic of China] art 3.

«中華民國憲法» [Constitution of the Republic of China] art 129.

«中華人民共和國澳門特別行政區基本法» [Basic Law of the Macau Special Administrative Region of the People’s Republic of China] ch III.

Note Where it is relevant or important, more information (such as a date of adoption or promulgating body) can be included in citations of constitutional documents. Such citations should adhere to rule 15.3.1.

15.4 Chinese Language Secondary Sources

15.4.1 General Rules

Rule Citations of Chinese language secondary sources should adhere to rules 25.4 and 15.1. In particular:

• materials should be cited in accordance with the relevant rules of this Guide for the source type;

• a translation of a citation element should be included in square brackets after that element;

• where Chinese characters are used in a source, they should be reproduced in a citation (and where a source uses pinyin, this should be reproduced in a citation); and

212 Part V — Foreign Domestic Materials

• Chinese characters should not be italicised in titles or otherwise (and should appear between guillemets as appropriate).

Where a source includes a Chinese title and an English title, both should be included in a citation. The English title should be italicised where appropriate.

Examples 胡克, 张卫, 胡智锋 [Hu Ke, Zhang Wei and Hu Zhifeng], «当代电影理论文选» [Selected Works of Contemporary Film Theory] (北京广播学院出版社 [Beijing Broadcasting Institute Press], 2000) 22.

蔡永彤 [Cai Yongtong], «WTO服务市场开放研究及相关法律问题探析—以法律服务市场开放为视角» [Research on the Opening Up of the Services Market under WTO and Analysis of Relevant Legal Questions — From the Perspective of the Opening Up of the Legal Services Market] (2004) 12(2) 山西经济管理干部学院学报 Journal of Shanxi Institute of Economic Management 60, 63.

15.4.2 Author Names and Subsequent ‘Above n’ References

Rule Author names should be included as they appear on the source (in simplified or traditional Chinese characters or pinyin). The capitalisation and order of surnames and given names should not be changed from that in the source.

If a name appears in Chinese characters, a transliteration into pinyin should be included in square brackets after the characters.

Subsequent ‘above n’ references should adhere to rule 1.4.2. However, the full name of the author should always be included. If the name appears in Chinese characters, both the characters and the pinyin transliteration should be included in subsequent references.

Australian Guide to Legal Citation 213

C hina

Examples 卫铄 [Wei Shuo] … [Original: 卫铄]

Cai Yuanpei … [Original: Cai Yuanpei] __________ 17 方建伟 [Fang Jianwei], «试论入世后中国法律服务业的开放» Examining the Opening Up of China’s Legal Services Sector after WTO Accession] [2004] 行政与法 Public Administration and Law 21, 122. … 20 方建伟 [Fang Jianwei], above n 17, 124.

Note In Chinese characters, the surname of an author always appears first. In names transliterated into pinyin, the surname sometimes appears first and sometimes last. The order of the names in a citation should replicate the order in the source.

214

16 France

Note The rules in this chapter should be used when citing French language primary materials. Published translations of French primary materials should be cited in accordance with rule 25.1.2.

16.1 Cases

Rule Decisions of the Cour de cassation should be cited as follows:

Cour de cassation [French Court of Cassation], Appeal Number , Full Date reported in ( Year of Publication )

Abbreviation of Publication no Number of Volume/Issue , Pinpoint .

Cases from the Conseil constitutionnel should be cited as follows:

Conseil constitutionnel [French Constitutional Court], decision no Number of Decision , Full Date reported in JO,

Full Date of Publication , Pinpoint .

Cases from the Conseil d’État should be cited as follows:

Conseil d’État [French Administrative Court], Full Date reported in [ Year of Publication ] Rec Lebon Pinpoint .

Other cases should be cited as follows:

Name of Court (Including City) , Case Number , Full Date reported in Report Series Citation , Pinpoint .

The words ‘reported in’ and a citation of a report series or publication should be included only where available.

A popular or commonly used name of a case may be included before the name of the court. It should appear italicised and be followed by a (non-italic) comma.

Translations of elements appearing in French should adhere to rule 25.1.1 (so should appear in square brackets after the element translated).

Australian Guide to Legal Citation 215

France

Examples Cour de cassation [French Court of Cassation], 06-81968, 5 December 2006 reported in (2006) Bull crim no 304, 1095.

Conseil constitutionnel [French Constitutional Court], decision no 2005-527 DC, 8 December 2005 reported in JO, 13 December 2005, 19162.

Demoiselle X, Conseil d’État [French Administrative Court], 28 May 1971 reported in [1971] Rec Lebon 409.

Cour d’appel de Toulouse [Toulouse Court of Appeal], 2003/05292, 7 March 2005.

Notes Official report series of the French Cour de cassation [Court of Cassation], Conseil constitutionnel [Constitutional Court] and Conseil d’État [Administrative Court] are set out in the table below:

Court Report Series Abbreviation

Cour de cassation — civil matters

Bulletin des arrêts de la Cour de cassation, Chambres civiles

Bull civ

Cour de cassation — criminal matters

Bulletin des arrêts de la Cour de cassation, Chambre criminelle

Bull crim

Conseil constitutionnel

Journal officiel de la République française

Conseil d’État Recueil des arrêts du Conseil d’État statuant au contentieux

Rec Lebon

For decisions of the Cour de cassation, the ‘appeal number’ is generally the number following ‘no de pourvoi’ in the decision.

16.2 Legislative Materials

16.2.1 Individual Laws

Rule French legislation and delegated legislation should be cited as follows:

Title of Law (France) JO, Full Date of Publication , Pinpoint .

216 Part V — Foreign Domestic Materials

The title of the law generally includes a number (preceded by ‘no’) and a date (preceded by ‘du’). Laws are gazetted in the Journal officiel (abbreviated ‘JO’).

Translations of elements appearing in French should adhere to rule 25.1.1 (so should appear in square brackets after the element translated).

Examples Loi no 91-662 du 13 juillet 1991 [Law No 91-662 of 13 July 1991] (France) JO, 19 July 1991, 9521.

Décret no 95-221 du 27 février 1995 [Decree No 95-221 of 27 February 1995] (France) JO, 2 March 1995, 3350.

16.2.2 Codes

Rule French codes should be cited as follows:

Title of Code (France) Pinpoint .

Translations of elements appearing in French should adhere to rule 25.1.1 (so should appear in square brackets after the element translated).

Examples Code civil [Civil Code] (France) art 147.

Code de procédure pénale [Code of Criminal Procedure] (France) art 689.

16.2.3 Constitution

Rule The French Constitution should be cited as follows:

La Constitution du 4 octobre 1958 [French Constitution of 4 October 1958] Pinpoint .

Example La Constitution du 4 octobre 1958 [French Constitution of 4 October 1958] art 2.

217

G erm

any

17 Germany

Note The rules in this chapter should be used when citing German language primary materials. Published translations of German primary materials should be cited in accordance with rule 25.1.2.

17.1 Cases

Rule Cases should be cited as follows:

Court Name , Case Number , Full Date reported in ( Year of Decision ) Volume Number

Abbreviation of Report Series Starting Page , Pinpoint .

A popular or commonly used name of a case may be included before the name of the court. It should appear italicised and be followed by a (non-italic) comma.

The words ‘reported in’ and a citation of a report series should be included only where available.

Translations of elements appearing in German should adhere to rule 25.1.1 (so should appear in square brackets after the element translated).

Examples Bundesverfassungsgericht [German Constitutional Court], 1 BvR 131/96, 24 March 1998 reported in (1998) 97 BVerfGE 391.

Bundesgerichtshof [German Federal Court of Justice], VII ZR 110/83, 19 January 1984 reported in (1984) 89 BGHZ 376, 378.

Solange II, Bundesverfassungsgericht [German Constitutional Court], 2 BvR 197/83, 22 October 1986 reported in (1986) 73 BVerfGE 271.

Pumuckl, Oberlandesgericht München [Munich Court of Appeal], 29 U 4743/02, 4 September 2003.

218 Part V — Foreign Domestic Materials

Note The preferred report series of German final courts of appeal are as follows:

Court Name of Court in English

Report Series Abbreviation

Bundesverfassungsgericht Federal Constitutional Court

BVerfGE

Bundesgerichtshof — Strafsachen

Federal Court of Justice — Criminal Matters

BGHSt

Bundesgerichtshof — Zivilsachen

Federal Court of Justice — Civil Matters

BGHZ

Bundessozialgericht Federal Social Court BSGE Bundesfinanzhof Federal Finance Court BFHE Bundesarbeitsgericht Federal Labour Court BAGE

17.2 Legislative Materials

17.2.1 Individual Laws

Rule Legislation and delegated legislation should be cited as follows:

Title of Law (Germany) Full Date of Enactment , Abbreviated Gazette Name , Year , Starting Page , Pinpoint .

Translations of elements appearing in German should adhere to rule 25.1.1 (so should appear in square brackets after the element translated).

Example Sozialversicherungs-Rechnungsverordnung [Social Security Calculation Regulation] (Germany) 27 April 2009, BGBl I, 2009, 951.

17.2.2 Codes

Rule German codes should be cited as follows:

Title of Code (Germany) Pinpoint .

Where a code has a commonly used abbreviation, this abbreviation may be included in the first citation of the code as a short title and used in subsequent references, in accordance with rule 3.9.

Australian Guide to Legal Citation 219

G erm

any

Translations of elements appearing in German should adhere to rule 25.1.1 (so should appear in square brackets after the element translated).

Example 1 Bürgerliches Gesetzbuch [Civil Code] (Germany) § 823(1) (‘BGB’).

… 3 BGB § 826.

17.2.3 Constitution

Rule The German Constitution should be cited as follows:

Grundgesetz für die Bundesrepublik Deutschland [Basic Law of the Federal Republic of Germany] Pinpoint .

Example Grundgesetz für die Bundesrepublik Deutschland [Basic Law of the Federal Republic of Germany] art 8(1).

220

18 Hong Kong

18.1 Cases

Rule Hong Kong cases should be cited accordance with chapter 2. However, names of individuals (both parties and judicial officers) should generally appear in full.

Examples Ng Ka Ling v Director of Immigration [1999] 1 HKLRD 337.

Victor Chandler (International) Ltd v Zhou Chu Jian He (2007) 12 HKPLR 595, 601 [24] (Court of First Instance).

Penny’s Bay Investment Co Ltd v Director of Lands [2009] 1 HKC 391.

Hong Kong Special Administrative Region v Lau Wai Wo (2003) 6 HKCFAR 624.

Discovery Bay Services Management Ltd v David Buxhaum [1995] HKDCLR 7, 9 (Downey J).

Faithway Enterprise Ltd v Lee Wan [2007] HKCA 175 (25 April 2007).

Notes The Hong Kong Law Reports and Digest (abbreviated ‘HKLRD’) and the Hong Kong Court of Final Appeal Reports (abbreviated ‘HKCFAR’) are authorised report series, so should be cited where available. Commonly cited unauthorised law report series are the HKC and HKLR, which should be cited where no authorised series is available.

When citing cases from Hong Kong, it may be useful to include the name of the court in a citation (in accordance with rule 2.6).

Names of individuals should generally appear in full in Hong Kong decisions to ensure that individuals are unambiguously identified. If given names are not necessary to identify an individual, they may be omitted.

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H ong K

ong

18.2 Legislative Materials

18.2.1 Principal and Delegated Legislation

Rule Hong Kong principal and delegated legislation should be cited in accordance with rules 3.1–3.4. However:

• no year should be included;

• the jurisdiction should appear as ‘(Hong Kong)’; and

• a chapter number should be included after the jurisdiction.

The chapter number should appear as follows:

cap Chapter Number (for example, ‘cap 3’).

Where a pinpoint reference is included, the chapter number should be followed by a comma.

Where principal or delegated legislation has not been allocated a chapter number (or when citing principal or delegated legislation historically, as enacted), the year should be included.

Examples Evidence Ordinance (Hong Kong) cap 8, s 4.

Dogs and Cats Regulations (Hong Kong) cap 167A, reg 22.

Rules of the High Court (Hong Kong) cap 4A.

Telephone Ordinance 1925 (Hong Kong).

Note A piece of primary legislation in Hong Kong is usually called an ‘ordinance’.

18.2.2 Constitution

Rule The Hong Kong Constitution should be cited as follows:

Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China Pinpoint .

Example Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China art 4.

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19 Malaysia

19.1 Cases

19.1.1 General Rule

Rule Malaysian cases should be cited in accordance with chapter 2. However:

• the names of individuals (both parties and judicial officers) should generally appear in full; and

• abbreviations of judicial titles should appear as they do in the case cited (but should adhere to rule 1.6.1, so full stops should not be used in abbreviations).

‘Sendirian Berhad’ (an expression indicating incorporation) should be abbreviated ‘Sdn Bhd’ in parties’ names. ‘Datuk’ (approximately equivalent to ‘Sir’) and ‘Haji’ (a religious status) should always be omitted from parties’ names.

Examples Ratna Ammal v Tan Chow Soo (1964) 30 MLJ 24.

Achieva Technology Sdn Bhd v Lam Yen Ling [2009] 8 MLJ 625 (High Court).

Notes When citing cases from Malaysia, it may be useful to include the name of the court in a citation (in accordance with rule 2.6).

Names of individuals should generally appear in full in Malaysian decisions to ensure that individuals are unambiguously identified. If given names are not necessary to identify an individual, they may be omitted.

19.1.2 Report Series

Rule In Malaysia, the most commonly used and authoritative law report series is the Malayan Law Journal (abbreviated ‘MLJ’), which should be cited where possible.

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Where a case is not reported in the MLJ, the Current Law Journal (abbreviated ‘CLJ’) should be cited where possible.

Examples Polygram Records Sdn Bhd v The Search [1994] 3 MLJ 127, 140 (Visu Sinnadurai J) (High Court of Malaya).

TAM Abdul Aziz & Co v Shamsudeen (1951) 17 MLJ 141, 141 (Murray-Aynsley CJ) (Court of Appeal).

PP v Segaran S Mathavan [2010] 2 CLJ 121 (High Court of Malaya).

Note The Malayan Law Journal contains both journal articles and cases from the Federal Court, Court of Appeal and High Court. Until 1965, volumes of the Malayan Law Journal were organised by volume. From 1966, the volumes are organised by year.

19.1.3 Unreported Cases

Rule Unreported Malaysian decisions should be cited in accordance with rule 2.8.2.

Example Mohamed Musa bin Amanullah v Public Prosecutor (Unreported, Malaysian Court of Appeal, Hasan Lah, Sulong Matjeraie and Mohd Hishamudin Yunus JJCA, 1 March 2010) [45]–[46].

Note Although some online databases do so, Malaysian courts do not allocate medium neutral citations. Medium neutral citations should thus not be used for unreported Malaysian cases, in accordance with rule 2.8.1.

19.2 Legislative Materials

19.2.1 Statutes and Delegated Legislation

Rule Malaysian statutes and delegated legislation should be cited in accordance with chapter 3. The jurisdiction should appear as ‘(Malaysia)’.

224 Part V — Foreign Domestic Materials

Digital Signature Regulations 1998 (Malaysia) reg 58(a).

19.2.2 Constitution

Rule The Malaysian Constitution should be cited as follows:

Federal Constitution (Malaysia) Pinpoint .

Example Federal Constitution (Malaysia) art 5.

225

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Zealand

20 New Zealand

20.1 Cases

20.1.1 General Rule

Rule New Zealand cases should be cited in accordance with chapter 2.

Example Haylock v Patek [2009] 1 NZLR 351.

Note When citing cases from New Zealand, it may be useful to include the name of the court in a citation (in accordance with rule 2.6).

20.1.2 Official and Unofficial Report Series

Rule The New Zealand Law Reports (abbreviated ‘NZLR’), which are authorised, should be cited where possible in accordance with rule 2.3.1.

Where a case is not reported in the NZLR, an unofficial report series should be cited (where available).

Examples Buchanan v Jennings [2000] NZAR 113 (Randerson and Neazor JJ) (High Court).

Gloken Holdings Ltd v CDE Co Ltd (1997) 6 NZBLC ¶99-418, 102 272.

20.1.3 Unreported Cases

Rule Where a case is unreported and has been assigned a medium neutral citation by the court, it should be cited in accordance with rule 2.8.1. The following medium neutral unique court identifiers should be used from the years indicated:

Court Unique Court Identifier Years

New Zealand Supreme Court NZSC 2005– New Zealand Court of Appeal NZCA 2007–

226 Part V — Foreign Domestic Materials

Other unreported New Zealand decisions (including unreported decisions of the High Court of New Zealand) should be cited in accordance with rule 2.8.2.

Examples Ludgater Holdings Ltd v Gerling Australia Insurance Co Pty Ltd [2009] NZSC 131 (16 December 2009) [1].

Lowe v New Zealand Police (Unreported, High Court of New Zealand, Clifford J, 2 March 2010) [11]–[12].

Note Some New Zealand tribunals also assign medium neutral citations to their decisions. Such medium neutral citations should be used only where the tribunal itself has assigned that citation.

20.1.4 Māori Land Court and Māori Appellate Court

Rule Decisions of the Māori Land Court and the Māori Appellate Court should be cited as follows:

Parties’ Names — Block Name ( Year ) Case Number Registry Minute Book Abbreviation Starting Page , Pinpoint .

Parties’ names should be separated by ‘v’. The block name should be included only where it appears in the decision. The following abbreviations should be used for the minute book abbreviation:

Type of Minute Book Abbreviation

Minute Book MB Appellate Court Minute Book ACMB Chief Judge’s Minute Book CJMB

Where minute book references are unavailable, Māori Land Court and Māori Appellate Court decisions should be cited as unreported decisions (in accordance with rule 2.8).

Pinpoint references should adhere to rule 2.5. Judges’ names should adhere to rule 2.9.1.

Examples O’Rorke v Hohaia — Pukekohatu 7B Block (2006) 173 Aotea MB 114, 117 [12]–[13] (Judge Harvey).

Taipari v Hauraki Maori Trust Board (2008) 114 Hauraki MB 75.

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Zealand

Notes The block name is usually preceded by the words ‘In the matter of’ in Māori Land Court and Māori Appellate Court decisions (and those words should be omitted in citations).

Minute books are divided according to registry.

20.1.5 Waitangi Tribunal

Rule Reports of the Waitangi Tribunal should be cited as follows:

Waitangi Tribunal, Title of Report ( Year ).

The ‘Wai number’ (sometimes used to identify reports of the Waitangi Tribunal) should not be included.

Example Waitangi Tribunal, Maori Electoral Option Report (1994).

20.2 Legislative Materials

20.2.1 Statutes

Rule New Zealand statutes should be cited in accordance with rule 3.1. The jurisdiction should be abbreviated ‘NZ’.

Example Habeas Corpus Act 2001 (NZ).

20.2.2 Delegated Legislation

Rule New Zealand delegated legislation should be cited in accordance with rule 3.3. However, the statutory rule number should be included after the jurisdiction and followed by a comma. It should appear in the form:

SR Year / Instrument Number (for example, ‘SR 2004/225’).

Example Electronic Transactions Regulations 2003 (NZ) SR 2003/288, reg 4.

228 Part V — Foreign Domestic Materials

20.3 Other

Rule For further information on the citation of New Zealand materials, see the latest edition of the New Zealand Law Style Guide.

229

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21 Singapore

21.1 Cases

21.1.1 General Rule

Rule Singaporean cases should be cited in accordance with chapter 2. However:

• names of individuals (both parties and judicial officers) should generally appear in full; and

• ‘Proprietary Limited’ is abbreviated ‘Pte Ltd’ (not ‘Pty Ltd’) for Singaporean companies.

Examples Re Econ Corp Ltd [2004] 1 SLR 273.

Lim Choo Suan v Goh Kok Hwa [2009] 4 SLR 193, 201–2 [15]–[16] (Woo Bih Li J) (High Court).

Virtual Map (Singapore) Pte Ltd v Singapore Land Authority [2009] 2 SLR 558, 563 (Court of Appeal).

Notes When citing cases from Singapore, it may be useful to include the name of the court in a citation (in accordance with rule 2.6).

Names of individuals should generally appear in full in Singaporean decisions to ensure that individuals are unambiguously identified. If given names are not necessary to identify an individual, they may be omitted.

21.1.2 Report Series

Rule The most commonly used and authoritative report series for cases from 1965 is the Singapore Law Reports (abbreviated ‘SLR’), which should be cited where available. For cases prior to 1965, the Malayan Law Journal (abbreviated ‘MLJ’) should be cited where available.

Examples PT Garuda Indonesia v Birgen Air [2002] 1 SLR 393.

Loo Seong Thye v Goh Teik Yah (1964) 30 MLJ 346.

230 Part V — Foreign Domestic Materials

21.1.3 Unreported Cases

Rule Where a decision is unreported and has been assigned a medium neutral citation by the court, it should be cited in accordance with rule 2.8.1. The following unique court identifiers should be used:

Court Unique Court Identifier

Years

Supreme Court of Singapore — Court of Appeal

SGCA 2003–

Supreme Court of Singapore — High Court

SGHC 2003–

Singapore District Court SGDC 2001– Singapore Magistrates’ Court SGMC 2001– Singapore Juvenile Court SGJC 2001– Singapore Small Claims Tribunal SGSCT 2001–

Other unreported Singaporean decisions should be cited in accordance with rule 2.8.2.

Examples Orient Centre Investments Ltd v Société Générale [2007] SGCA 24 (9 May 2007).

Ong v Lim Lie Hoa [2008] SGHC 44 (25 March 2008) [8] (Choo Han Teck J).

Public Prosecutor v Zhang Jing [2006] SGDC 82 (3 May 2006) [17]– [19].

Note The Supreme Court of Singapore consists of the High Court and the Court of Appeal.

21.2 Legislative Materials

21.2.1 Statutes and Subsidiary Legislation

Rule Singaporean legislation and subsidiary legislation that has been assigned a chapter number should be cited as follows:

Title (Singapore, cap Chapter Number , Year rev ed) Pinpoint .

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Singapore

The title should adhere to rule 3.1.1. Where a statute or subsidiary legislation is cited as in force, the year is that of the most recent revision. For historical references, the appropriate year of revision should be included. Pinpoint references should adhere to rules 3.1.4– 3.1.6 and 3.3.2.

Legislation and subsidiary legislation that has not been assigned a chapter number or been revised (as well as historical statutes and subsidiary legislation that preceded chapter numbering) should be cited as follows:

Title Year (Singapore) Pinpoint .

The year is that in which the statute was passed or the subsidiary legislation was promulgated originally (and should adhere to rule 3.1.2).

Examples Adoption of Children Act (Singapore, cap 4, 1985 rev ed) s 5.

Land Titles Act (Singapore, cap 157, 1994 rev ed) pt III.

Rules of Court (Singapore, cap 322, 2006 rev ed) O 10 r 1.

Road Traffic (Motor Vehicles, Driving Licences) (Amendment) Rules 2010 (Singapore).

Land Titles Ordinance 1956 (Singapore) ss 28(2)(b)–(e).

Notes In Singapore, all forms of delegated legislation are called ‘subsidiary legislation’.

The chapter number (abbreviated ‘cap’) refers to a statute or piece of subsidiary legislation as first passed or promulgated. Singaporean Acts and subsidiary legislation are regularly revised by the Law Revision Commission with the assent of the President and become official revised editions (abbreviated ‘rev ed’).

21.2.2 Constitutional Documents

Rule Singaporean constitutional documents should be cited in accordance with rule 21.2.1. These documents do not have chapter numbers, but revision or reprint information should be indicated.

232 Part V — Foreign Domestic Materials

Examples Constitution of the Republic of Singapore (Singapore, 1999 reprint) ss 9–16.

Republic of Singapore Independence Act (Singapore, 1985 rev ed) s 5.

21.3 Other

Rule For further information on the citation of Singaporean materials, see the latest edition of The Singapore Academy of Law Style Guide.

233

South A frica

22 South Africa

22.1 Cases

22.1.1 General Rule

Rule South African cases should be cited in accordance with chapter 2.

Where a judicial officer is identified (in accordance with rule 2.9.1), ‘Judge President’ should be abbreviated ‘JP’ and appear after a judge’s name.

In accordance with rule 2.6, the name of the court (for example, ‘Constitutional Court’) or name of the division of the Supreme Court or High Court (for example, ‘Appellate Division’) may be included. However, the location of a Supreme Court or High Court division should be omitted (for example, ‘Provincial Division’, not ‘Transvaal Provincial Division’).

Examples Christian Education South Africa v Minister of Education [1999] 2 SA 83 (Constitutional Court).

Mahlangu v De Jager [2000] 3 SA 145 (Land Claims Court).

Belvedere Sugar Co (Pty) Ltd v Sugar Industry Central Board [1962] 1 SA 221, 230 (Williamson JP).

S v Zinn [1969] 2 SA 537, 540 (Rumpff JA) (Appellate Division).

Soller No v G [2003] 5 SA 430, 437–8 [22]–[27] (Satchwell J) (Local Division). [Not: … (Witwatersrand Local Division).]

Notes ‘S’ is commonly used as an abbreviation for ‘State’ where the state is a party to a criminal case.

The High Court of South Africa replaced the local and provincial divisions of the Supreme Court of South Africa in 1997. The Supreme Court of Appeal replaced the Appellate Division of the Supreme Court in 1996. The Constitutional Court deals only with constitutional matters. Accordingly, the following court names may be included in accordance with rule 2.6:

234 Part V — Foreign Domestic Materials

Court(s) Court Name for Citations

Constitutional Court (Constitutional Court) The current Supreme Court of Appeal (Supreme Court of Appeal) The former Appellate Division of the Supreme Court

(Appellate Division)

All current locations of the High Court (for example, ‘North West High Court, Mafikeng’)

(High Court)

All former Supreme Court local and provincial divisions (for example, ‘Cape Provincial Division’)

(Local Division)/(Provincial Division)

All former Supreme Court divisions not designated ‘local’ or ‘provincial’ (for example, ‘Eastern Cape Division’)

(Supreme Court)

The names of other courts (such as the Magistrates’ Court, Land Claims Court, Labour Court, Labour Appeal Court and Competition Appeal Court) may be included as appropriate. Specific geographical locations should be omitted from such names.

22.1.2 Report Series

Rule South Africa does not have authorised reports of judicial decisions. The most commonly used report series is the South African Law Reports (abbreviated ‘SA’), which should be cited where possible.

Example S v Manamela [2000] 3 SA 1 (Constitutional Court).

Note Decisions of the Supreme Court and High Court of Namibia and the Supreme Court and High Court of Zimbabwe are reported in the SA, and should be cited in accordance with this rule.

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22.2 Legislative Materials

22.2.1 Statutes and Delegated Legislation

Rule South African legislation and delegated legislation should be cited in accordance with chapter 3.

The following abbreviations and phrases should be used to indicate South African jurisdictions:

Jurisdiction Abbreviation/Phrase

South Africa South Africa Eastern Cape EC Free State FS Gauteng G KwaZulu-Natal KZN Limpopo LP Mpumalanga MP North West NW Northern Cape NC Western Cape WC

In provincial legislation, where the jurisdiction appears at the beginning of the title of an Act, it should be omitted from the title and included in abbreviated form in accordance with rule 3.1.3.

Examples Local Government Transition Act 1993 (South Africa).

Digital Terrestrial Television Regulations 2009 (South Africa) reg 5.

Land Administration Act 2003 (KZN). [Not: KwaZulu-Natal Land Administration Act 2003.]

22.2.2 Constitutions

Rule The constitutions of South Africa and its provinces should be cited as regular legislation (in accordance with rule 22.2.1).

Example Constitution of the Republic of South Africa Act 1996 (South Africa) ch 8.

236 Part V — Foreign Domestic Materials

22.3 Truth and Reconciliation Commission

Rule Reports of the Truth and Reconciliation Commission of South Africa should be cited as books (in accordance with chapter 5).

Example Truth and Reconciliation Commission of South Africa, Report (1998– 2003) vol 3, 155.

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23 United Kingdom

23.1 Cases

23.1.1 General Rule

Rule United Kingdom cases should be cited in accordance with chapter 2.

‘Public Limited Company’ should be abbreviated ‘plc’ in parties’ names.

In judicial review cases from 2001 where the Crown is a party (often described as ‘R on the application of X’ in the report), the Crown and the party seeking judicial review should appear in the form:

R ( Name of Party Seeking Judicial Review ) (for example, ‘R (Anderson)’).

Examples CAS Nominees Ltd v Nottingham Forest FC plc [2001] 1 All ER 954.

R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653, 673–4 [39] (Lord Bingham).

23.1.2 Modern English Reports

Rule The Law Reports, published by the Incorporated Council of Law Reporting for England and Wales, should be cited where available.

The abbreviations for commonly used series in the Law Reports (and predecessor series) are in the table below. Where ‘LR’ appears in an abbreviation, the volume number should be included between ‘LR’ and the rest of the abbreviation (for example, ‘LR 7 QB’, not ‘7 LR QB’).

Jurisdiction Abbreviation Years

Admiralty and Ecclesiastical Cases LR Adm & Eccl

1865–75

AC 1890– Appeal Cases App Cas 1875–90

238 Part V — Foreign Domestic Materials

Ch 1891– Chancery Ch D 1875–90

Chancery Appeal Cases LR Ch App 1865–75 CPD 1875–80 Common Pleas LR CP 1865–75

Crown Cases Reserved LR CCR 1865–75 English and Irish Appeals and Peerage Claims

LR HL 1865–75

Equity LR Eq 1865–75 Ex D 1875–80 Exchequer LR Ex 1865–75

Family Fam 1972– Privy Council LR PC 1865–75

P 1891–1971 PD 1875–90

Probate and Divorce

LR P & D 1865–75 QB 1952– KB 1901–51 QB 1891–1900 QBD 1875–90

Queen’s and King’s Bench

LR QB 1865–75 Restrictive Practices LR RP 1957–72 Scotch and Divorce Appeals LR Sc & Div 1865–75

Examples Beevis v Dawson [1957] 1 QB 195.

Astley v Micklethwait (1880) 15 Ch D 59.

Skinner v Orde (1871) LR 4 PC 60.

23.1.3 Nominate Reports

Rule Citations of nominate reports should include a parallel citation of the English Reports (abbreviated ‘ER’) or the Revised Reports (abbreviated ‘RR’) where available, after the citation of the nominate report (including any pinpoint references). The ER should be cited in preference to the RR.

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Where necessary to avoid ambiguity, judges’ names should be repeated after both the nominate report and the ER or RR pinpoints.

Examples Russel v Lee (1661) 1 Lev 86; 83 ER 310.

Janvrin v De La Mare (1861) 14 Moo 334, 345; 15 ER 332, 336 (Lord Kingsdown).

Peters v Fleming (1840) 6 M & W 42, 47 (Parke B), 48 (Alderson B), 49 (Rolfe B); 151 ER 314, 315 (Parke B), 316 (Alderson B), 316 (Rolfe B).

Note The nominate reports, published between 1537 and 1865, are reports that were published under the name of the reporter. Many of the nominate reports have been compiled and reprinted. The first reprint was published as the RR. The subsequent (and preferred) reprint is the ER.

23.1.4 Scottish Reports

Rule Scottish cases should be cited in accordance with rule 23.1. However, in report series organised by year, square brackets should not enclose the year.

Example Logan v Harrower 2008 SLT 1049.

23.1.5 Unreported Cases

Rule UK unreported decisions should be cited in accordance with rule 2.8.

Where a decision is unreported and has been assigned a medium neutral citation by the court, it should be cited in accordance with rule 2.8.1. The following are medium neutral unique court identifiers for important UK courts:

Court Unique Court Identifier

Years

Supreme Court of the United Kingdom UKSC 2009– United Kingdom House of Lords UKHL 2001–09

240 Part V — Foreign Domestic Materials

United Kingdom Privy Council UKPC 2001– England and Wales Court of Appeal — Civil Division

EWCA Civ 2001–

England and Wales Court of Appeal — Criminal Division

EWCA Crim 2001–

EWHC Admin 2001–02 England and Wales High Court — Administrative Court EWHC (Admin)* 2002– England and Wales High Court — Admiralty Court

EWHC (Admlty)* 2002–

England and Wales High Court — Chancery Division

EWHC (Ch)* 2002–

England and Wales High Court — Commercial Court

EWHC (Comm)* 2002–

England and Wales High Court — Family Division

EWHC (Fam)* 2002–

England and Wales High Court — Patents Court

EWHC (Pat)* 2002–

England and Wales High Court — Queen’s Bench Division

EWHC (QB)* 2002–

England and Wales High Court — Technology and Construction Court

EWHC (TCC)* 2002–

Scotland High Court of Justiciary — Appeal Court

HCJAC 2005–

Scotland High Court of Justiciary — Trial Court

HCJT 2005–

Scotland Court of Session — Inner House

CSIH 2005–

Scotland Court of Session — Outer House

CSOH 2005–

Northern Ireland Court of Appeal NICA 2001– Northern Ireland High Court — Chancery Division

NICh 2001–

Northern Ireland High Court — Family Division

NIFam 2001–

Northern Ireland High Court — Queen’s Bench Division

NIQB 2001–

Northern Ireland Crown Court NICC 2001–

* The part of the unique court identifier in parentheses appears after the judgment number (for example, ‘[2010] EWHC 64 (Fam)’).

Other unreported UK decisions should be cited in accordance with rule 2.8.2.

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Examples Martin v Her Majesty’s Advocate (Scotland) [2010] UKSC 10 (3 March 2010) [5] (Lord Hope DP).

Cavell USA Inc v Seaton Insurance Co [2009] EWCA Civ 1363 (16 December 2009) [24]–[25] (Longmore LJ).

Trajer v Lord Advocate [2008] HCJAC 78 (19 December 2008) [11] (Lord Osborne).

R (Pounder) v HM Coroner for the North and South Districts of Durham and Darlington [2009] EWHC 76 (Admin) (22 January 2009) [40], [51].

Training for Tomorrow (Holdings) Ltd v The Corporate Services Group plc (Unreported, England and Wales High Court, Langley J, 28 February 2000) 7–8.

23.1.6 Identifying Judicial Officers

Rule Judicial officers’ names should be included in accordance with rule 2.9.1 (so may be included after a pinpoint reference where the judicial officer’s name is not otherwise apparent). The abbreviations of judicial titles in the table below should be used in addition to or instead of those in rule 2.9.1. However, those titles marked with an asterisk should always appear before the judicial officer’s name.

Judicial Title Abbreviation/Title

Baron of the Exchequer B Baroness Baroness* Chief Baron CB Circuit Judge Judge* District Judge DJ Deputy President of the Supreme Court of the United Kingdom

Justice of the High Court J Lord Chancellor LC

242 Part V — Foreign Domestic Materials

Lord Chief Justice, Chief Justice of the Common Pleas, Chief Justice of the King’s Bench, Chief Justice of the Queen’s Bench

Lord Commissioner Lord Commissioner* Lord of Appeal Lord* Lord/Lady Justice of Appeal LJ Master Master* Master of the Rolls MR President of the Supreme Court of the United Kingdom, President of the Family Division of the High Court

Recorder Recorder* Registrar Registrar* Justice of the Supreme Court of the United Kingdom

SCJ

Vice-Chancellor V-C

Examples Lord Cozens-Hardy MR Kindersley V-C Lord Diplock Lord Hope DP Lord Brown SCJ Hoffmann J James, Baggallay and Bramwell LJJ Lord Thurlow LC Arden LJ

23.2 Legislation

Patents Act 2004 (UK) c 16 , s 5

Examples Artificers and Apprentices Act

1562, 5 Eliz 1, c 4 , s 3

Element Title and Year Jurisdiction Regnal Year

Chapter, Act or Measure Number

Pin- point

Rule 23.2.1 23.2.2 23.2.3 23.2.4 23.2.5

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23.2.1 Title and Year

Rule UK statute titles and years should adhere to rules 3.1.1–3.1.2. In particular, the year in which the statute was passed should be included in the title regardless of whether it appears in the original short or long title.

‘The’ should be omitted from the beginning of a statute title.

For pre-19th century statutes that do not include a short title, the short title given in Great Britain, Chronological Table of the Statutes (Stationery Office, 2007) or equivalent online publications should be included (instead of the long title appearing in the statute itself).

Examples Human Rights Act 1998 (UK) c 42, s 6(1).

Government of Wales Act 1998 (UK) c 38. [Not: Government of Wales Act (UK) …]

Staple Act 1435, 14 Hen 6, c 2. [Not: The Staple Act 1435, …]

Private (See of Dublin) Act 1705, 4 & 5 Anne, c 13. [Not: An Act for Making Effectual a Grant of Their Late Majesties King William and Queen Mary of the Town and Lands of Seatown to the Archbishoprick of Dublin and for Restoring the Same to the Said See 1705, …]

Note Long titles were commonly the only title included in UK statutes until the 19th century. The UK Office of Public Sector Information maintains an online version of the Chronological Table of the Statutes, accessible at <http://www.opsi.gov.uk/chron-tables/chron-index>.

23.2.2 Jurisdiction

Rule The jurisdiction of a statute should be included or omitted according to the table below:

Parliament/Assembly Jurisdiction

United Kingdom Parliament (from 1 January 1963)

‘(UK)’ should be included

United Kingdom Parliament (before 1 January 1963)

Omit jurisdiction

244 Part V — Foreign Domestic Materials

United Kingdom Parliament sitting as the Imperial Parliament (before 1 January 1963)

‘(Imp)’ may be included

Northern Ireland Assembly ‘(NI)’ should be included

Scottish Parliament ‘(Scot)’ should be included

National Assembly for Wales ‘(Wales)’ should be included

Where the jurisdiction is omitted in a citation, the statute title should be followed by a (non-italic) comma.

Examples Factories Act 1961, 9 & 10 Eliz 2, c 34.

Colonial Laws Validity Act 1865 (Imp) 28 & 29 Vict, c 63.

Appropriation Act 2004 (UK) c 9.

Libraries Act (Northern Ireland) 2008 (NI) c 8.

Dog Fouling (Scotland) Act 2003 (Scot) asp 12.

Learner Travel (Wales) Measure 2008 (Wales) nawm 2.

23.2.3 Regnal Year

Rule For statutes enacted before 1 January 1963, the regnal year should be included. It should not be included for statutes enacted from this date.

Regnal years should appear (using Arabic numerals) as follows:

Year(s) of Reign Monarch’s Name Regnal Number of Monarch (for example, ‘2 & 3 Will 4’).

The year of reign is the number of years for which the monarch had reigned when the statute was enacted (for example, ‘1 Geo’ indicates the first year of reign). The monarch’s name should be abbreviated according to the table below. The regnal number of the monarch is the sequential number of monarchs of the same name (for example, ‘Geo 6’ indicates George VI). (A session of Parliament during the first year of reign of George VI would thus be indicated ‘1 Geo 6’.)

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Where there are multiple sessions of Parliament in a given year of reign, the session number should be included after the regnal year for subsequent sessions. ‘Session’ should be abbreviated ‘sess’ (for example, ‘1 Wm & M sess 2’).

The following abbreviations for monarchs’ names should be used:

Monarch’s Name

Abbreviation Monarch’s Name

Abbreviation

Anne Anne Charles Car Edward Edw Elizabeth Eliz George Geo Henry Hen James Jac John John Mary Mary Philip and Mary Ph & M Richard Ric Victoria Vict William Wm William and Mary Wm & M

Examples Workmen’s Compensation Act 1906, 6 Edw 7, c 58.

Statute of Westminster 1931 (Imp) 22 & 23 Geo 5, c 4.

East India Company Act 1784, 24 Geo 3 sess 2, c 2.

Note Regnal years are listed in Mick Woodley (ed), Osborn’s Concise Law Dictionary (Sweet and Maxwell, 11th ed, 2009) and Peter Butt (ed), Butterworths Concise Australian Legal Dictionary (LexisNexis Butterworths, 3rd ed, 2004).

23.2.4 Chapter, Act or Measure Number

Rule For statutes enacted by the United Kingdom Parliament after 1 January 1963 or by the Northern Ireland Assembly, the chapter number (abbreviated ‘c’) should be included after the jurisdiction.

For Scottish statutes, the Act of the Scottish Parliament number (abbreviated ‘asp’) should be included.

For measures enacted by the National Assembly for Wales, the National Assembly of Wales Measure number (abbreviated ‘nawm’) should be included.

246 Part V — Foreign Domestic Materials

Examples Racial and Religious Hatred Act 2006 (UK) c 1.

Learning and Skills (Wales) Measure 2009 (Wales) nawm 1.

23.2.5 Pinpoint Reference

Rule Pinpoint references should adhere to rules 3.1.4–3.1.6. However, they should be preceded by a comma.

The pinpoint abbreviations in rule 3.1.4 should be used.

Example Welfare Reform Act 2007 (UK) c 5, s 4.

23.3 Delegated Legislation

Example Undersized Bass Order 2007

(UK) SI 2007/809 , O 6.

Element Title Jurisdiction Instrument Number Pinpoint

Rule UK subordinate legislation should appear in accordance with rules 3.3–3.4. However:

• the title and year should adhere to rule 23.2.1;

• the jurisdiction should adhere to rule 23.2.2; and

• the instrument number should be included between the jurisdiction and any pinpoint reference.

The instrument number should appear in the form:

Abbreviation of Instrument Type Year / Number (for example, ‘SR 2009/138’).

The abbreviation of instrument type should appear according to the table below:

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Jurisdiction Abbreviation

United Kingdom (1890–1947) SR & O United Kingdom (1947–) SI Northern Ireland SR Scottish Parliament SI

If a pinpoint reference is included, the instrument number should be followed by a comma.

Examples Fertilisers (Amendment) Regulations 1998 (UK) SI 1998/2024. [Not: The Fertilisers (Amendment) Regulations 1998 …]

Aden Colony Order 1936 (UK) SR & O 1936/1031.

Outer Space Act 1986 (Gibraltar) Order 1996 (UK) SI 1996/1916.

Work at Height Regulations (Northern Ireland) 2005 (NI) SR 2005/279.

Scottish Register of Tartans Fees Order 2009 (Scot) SI 2009/6.

Magistrates’ Courts (International Criminal Court) (Forms) Rules 2001 (UK) SI 2001/2600, r 4.

23.4 Government Publications

23.4.1 Parliamentary Debates

Rule Modern UK parliamentary debates should be cited as follows:

United Kingdom, Parliamentary Debates, Chamber , Full Date , vol Volume Number , col Column Number .

Historical UK parliamentary debates (appearing in Cobbett’s Parliamentary History of England and equivalent publications) should be cited as follows:

United Kingdom, Cobbett’s Parliamentary History of England, Year , vol Volume Number , col Column Number .

‘United Kingdom’ should be replaced with the appropriate polity shown in the volume of parliamentary debates.

248 Part V — Foreign Domestic Materials

In all such citations, a speaker’s name may be included in accordance with rule 6.1.1. Speakers’ names should adhere to rule 1.14.

Examples United Kingdom, Parliamentary Debates, House of Commons, 16 February 1998, vol 306, col 778 (Jack Straw).

United Kingdom, Parliamentary Debates, House of Lords, 3 May 2007, vol 691, col 1158 (Baroness Morgan). England, Cobbett’s Parliamentary History of England, 1558, vol 1, col 633.

23.4.2 Command Papers

Rule Command papers should be cited as follows:

Author , Title , Command Paper Series Number of Paper ( Year ) Pinpoint .

Command papers are numbered in five series as follows:

Date of Publication Series

1833–69 No 1 – No 4222 1870–99 C 1 – C 9550 1900–18 Cd 1 – Cd 9239 1918–56 Cmd 1 – Cmd 9889 1956–86 Cmnd 1 – Cmnd 9927 1986– Cm 1 –

Examples United Kingdom, Report of the Commissioners of Prisons for the Year 1949, Cmd 8088 (1950) 16.

Department for Transport (UK), Low Carbon Transport: A Greener Future — A Carbon Reduction Strategy for Transport, Cm 7682 (2009) 18.

23.4.3 Parliamentary Papers

Rule Parliamentary papers should be cited as follows:

Author , Title , House Paper No Number , Session Year(s) of Session ( Year ) Pinpoint .

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Where a parliamentary paper is presented to both Houses of Parliament, both paper numbers should be included. They should be separated by a comma.

Examples National Audit Office, Regenerating the English Coalfields, House of Commons Paper No 84, Session 2009–10 (2009) 11.

Joint Committee on Human Rights, Prisoner Transfer Treaty with Libya, House of Lords Paper No 71, House of Commons Paper No 398, Session 2008–09 (2009) 5.

23.5 Other

Rule For further information on the citation of UK materials, see the latest edition of Derek French, How to Cite Legal Authorities (Oxford University Press).

250

24 United States of America

24.1 Cases

Example Bush v Schiavo, 885 So 2d 321 , 336 (Fla, 2004)

Element Parties’ Names Volume Report Series

and Series Number

Starting Page

Pin- point

Jurisdiction and Court

Name Year

Rule 24.1.1 24.1.2 24.1.3 24.1.4 24.1.4 24.1.5 24.1.6

24.1.1 Parties’ Names

Rule Parties’ names should adhere to rule 2.1. However, they should be followed by a (non-italic) comma.

Commas within company names before ‘Inc’, ‘Corp’ and other words indicating incorporation should be omitted.

Examples Roper v Simmons, 543 US 551, 567 (Kennedy J) (2005).

Zapatha v Dairy Mart Inc, 408 NE 2d 1370, 1375 (Mass, 1980). [Not: Zapatha v Dairy Mart, Inc, …]

24.1.2 Volume

Rule The volume number of the report series should appear after the case name.

Example Brearley School Ltd v Ward, 94 NE 1001, 1002 (NY, 1911).

Note US report series are generally organised by volume, not by year (see rule 2.2).

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24.1.3 Report Series and Series Number

Rule The name of the report series should adhere to rule 2.3 (so should be abbreviated using the list of abbreviations in the Appendix). Any series number (for example, ‘2d’, ‘3d’, ‘4th’) should be included as it appears in the Appendix.

For federal decisions, an authorised (or ‘official’) report series should be cited where available. For state decisions, a regional reporter should be cited where available. Otherwise, the state authorised report series or an unofficial report series should be cited.

For citations of US Supreme Court decisions prior to 1875 (that is, pre-‘90 US’), a parallel citation of the early American report series in which the decision appears should be included as follows:

Volume in US Series US ( Volume in Early American Reporter Name of Early American Reporter ) Starting Page

(for example, ‘17 US (4 Wheat) 316’).

Examples Bush v Gore, 531 US 98 (2000). [Not: Bush v Gore, 121 S Ct 525 (2000).]

Loveladies Harbor Inc v United States, 28 F 3d 1171 (Fed Cir, 1994).

Stevenson v Shalcross, 205 F 286 (3rd Cir, 1913).

Tracy v Beaufort County Board of Education, 335 F Supp 2d 675 (D SC, 2004).

Freightliner LLC v Whatley Contract Carriers LLC, 932 So 2d 883 (Ala, 2005).

City of Sedan v Church, 29 Kan 190 (1883).

Winchester v Hackley, 6 US (2 Cranch) 342 (1804).

Notes Authorised reports of the US Supreme Court are published in the ‘US’ series. Early American reports were reproduced in that series. The pagination of the early American report series is the same as that of the US series.

Authorised reports of the federal United States Courts of Appeals are published in the ‘F’ series (‘F’, ‘F 2d’, ‘F 3d’, etc).

252 Part V — Foreign Domestic Materials

Authorised reports of the federal United States District Courts (federal courts of first instance) are published in the ‘F Supp’ series (‘F Supp’, ‘F Supp 2d’, etc).

Regional reporters, which are published by West, are the various series of the Atlantic Reporter (abbreviated ‘A’), the North Eastern Reporter (abbreviated ‘NE’), the North Western Reporter (abbreviated ‘NW’), the Pacific Reporter (abbreviated ‘P’), the South Eastern Reporter (abbreviated ‘SE’), the Southern Reporter (abbreviated ‘So’) and the South Western Reporter (abbreviated ‘SW’).

State authorised report series usually have as their abbreviation the abbreviation of their state listed in rule 24.1.5.2.

24.1.4 Starting Page and Pinpoint Reference

Rule The first page of the case should be included after the report series abbreviation.

Pinpoint references should adhere to rule 2.5. In particular:

• a comma should precede any pinpoint reference;

• where the pinpoint reference is to the first page of the case, the page number should be repeated; and

• for reported cases, pinpoint references should be to page numbers and may include paragraph references in addition.

Examples Kansas v Hendricks, 521 US 346, 356–7 (1996).

State v Aponte, 738 A 2d 117, 134 (McDonald J) (Conn, 1999).

24.1.5 Jurisdiction and Court Name

Rule Where an abbreviated form of the jurisdiction and/or the abbreviated name of the court must be included (in accordance with rules 24.1.5.1–24.1.5.2), they should appear in parentheses after the starting page and any pinpoint reference.

If both the jurisdiction and the court name are included, they should not be separated by any punctuation. A comma should separate the jurisdiction and/or court name from the year.

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Examples Garshman Co Ltd v General Electric Co, 176 F 3d 1 (1st Cir, 1999).

McDonald v Bauman, 433 P 2d 437 (Kan, 1967).

24.1.5.1 Federal Courts

Rule A citation of a decision of the US Supreme Court should not include the name of the court.

The Courts of Appeals should be referred to by their numbered circuit (‘1st Cir’, ‘2nd Cir’, etc). The United States Court of Appeals for the District of Columbia Circuit should be abbreviated ‘DC Cir’. The United States Court of Appeals for the Federal Circuit should be abbreviated ‘Fed Cir’.

For district court cases, an abbreviated form of the district (abbreviated ‘D’), but not the division, should be included. Each US state is either an entire federal district, abbreviated:

D State Abbreviation (for example, ‘D Del’)

or divided into multiple districts, abbreviated:

Abbreviation of District Type D State Abbreviation (for example, ‘CD Cal’).

Common abbreviations of district types are:

District Type Abbreviation District Type Abbreviation

Northern District ND Western District WD Southern District SD Central District CD Eastern District ED Middle District MD

State names should be abbreviated according to rule 24.1.5.2.

The names of other federal courts should be included using their customary abbreviation (which is usually indicated on the decision). Full stops in abbreviations should be omitted (in accordance with rule 1.6.1).

Examples Tinker v Des Moines Independent Community School District, 393 US 503 (1969). [Not: … (Sup Ct, 1969).]

254 Part V — Foreign Domestic Materials

SunTrust Bank v Houghton Mifflin Co, 268 F 3d 1257 (11th Cir, 2001).

Air Line Pilots Association v Federal Express Corporation, 402 F 3d 1245, 1248 (DC Cir, 2005).

Abbott v Moore Business Forms Inc, 439 F Supp 643 (D NH, 1977).

Huggins v Fulton, 505 F Supp 7 (MD Tenn, 1980).

Sheppard v Union Pacific Railroad Co, 357 F Supp 2d 1180 (ED Mo, 2005). [Not: … (ED Mo ED, 2005) nor (ED Mo Eastern Division, 2005).]

Note The US Supreme Court sits at the apex of the federal court structure. Circuit courts are intermediate appellate courts. Each ‘circuit’ contains a number of ‘districts’. District courts are federal courts of first instance. Districts are sometimes divided into ‘divisions’, the abbreviation of which appears after the district abbreviation (for example, ‘CD Cal ED’ is ‘Central District of California Eastern Division’). It is not necessary to include the division in a citation.

24.1.5.2 State Courts

Rule An abbreviated form of the jurisdiction (that is, the name of the state) followed by the conventional abbreviated name of the court (‘Sup Ct’, ‘Ct App’, etc) should be included. However:

• the jurisdiction should not be included if it is apparent from the title of the report series; and

• the name of the court should not be included if it is the highest court in the state.

(Neither the jurisdiction nor the name of the court should therefore be included if the jurisdiction is apparent from the report series and the court is the highest court in the state.)

The abbreviations for US states (that is, the jurisdiction) and the name of the highest court in each state are:

State Highest Court Abbreviation

Alabama Supreme Court Ala Alaska Supreme Court Alaska

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Arizona Supreme Court Ariz Arkansas Supreme Court Ark California Supreme Court Cal Colorado Supreme Court Colo Connecticut Supreme Court Conn Delaware Supreme Court Del Florida Supreme Court Fla Georgia Supreme Court Ga Hawaii Supreme Court Haw Idaho Supreme Court Idaho Illinois Supreme Court Ill Indiana Supreme Court Ind Iowa Supreme Court Iowa Kansas Supreme Court Kan Kentucky Supreme Court Ky Louisiana Supreme Court La Maine Supreme Judicial Court Me Maryland Court of Appeals Md Massachusetts Supreme Judicial Court Mass Michigan Supreme Court Mich Minnesota Supreme Court Minn Mississippi Supreme Court Miss Missouri Supreme Court Mo Montana Supreme Court Mont Nebraska Supreme Court Neb Nevada Supreme Court Nev New Hampshire Supreme Court NH New Jersey Supreme Court NJ New Mexico Supreme Court NM New York Court of Appeals NY North Carolina Supreme Court NC North Dakota Supreme Court ND Ohio Supreme Court Ohio Oklahoma Supreme Court Okla Oregon Supreme Court Or Pennsylvania Supreme Court Pa Rhode Island Supreme Court RI

256 Part V — Foreign Domestic Materials

South Carolina Supreme Court SC South Dakota Supreme Court SD Tennessee Supreme Court Tenn Texas Supreme Court Tex Utah Supreme Court Utah Vermont Supreme Court Vt Virginia Supreme Court Va Washington Supreme Court Wash West Virginia Supreme Court of Appeals W Va Wisconsin Supreme Court Wis Wyoming Supreme Court Wyo

Examples Brogdon v State, 467 SE 2d 598 (Ga Ct App, 1996).

Poire v CL Peck/Jones Brothers Construction Corporation Inc, 46 Cal Rptr 2d 631 (Ct App, 1995).

Burr v Maclay Rancho Water Co, 98 P 260 (Cal, 1908).

24.1.6 Year

Rule The year of the decision should appear after the jurisdiction and court name in the parentheses.

If neither the jurisdiction nor the court name is included, the year should appear in parentheses after the starting page or any pinpoint reference.

Examples People v Eaves, 512 NW 2d 1 (Mich Ct App, 1994).

Felder v Casey, 487 US 131, 142 (Brennan J) (1987).

24.1.7 Unreported Cases

Rule Unreported US cases should be cited as follows:

Parties’ Names ( Jurisdiction and Court/District , Docket or Reference No , Full Date ) slip op Pinpoint .

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S ta

te s

The full docket or reference number, including any letters and

punctuation, should be included as it appears in the decision.

However, punctuation should adhere to rule 1.6.1 (so full stops should

not be used in abbreviations).

For state courts, both the abbreviated jurisdiction and court name

should be included (using the abbreviations in rule 24.1.5.2). For

federal courts, the abbreviated form of the circuit or district should be

included (in accordance with rule 24.1.5.1).

The words ‘slip op’ (indicating a ‘slip opinion’) should precede

pinpoint references. If the judgment does not begin on the first page of

the slip opinion, a starting page should be included before the pinpoint

reference, followed by a comma. Pinpoint references should generally

be to page numbers (and should adhere to rules 1.1.5–1.1.6).

Paragraph numbers may be included in addition to page numbers.

Examples Red Hat Inc v The SCO Group Inc (D Del, Civ No 03-772-SLR, 6

April 2004).

Torres v Oklahoma (Okla Ct Crim App, No PCD-04-442, 13 May

2004) slip op 7.

Charlesworth v Mack (1 st Cir, No 90-567, 19 January 1991) slip op

3458, 3464.

Note A ‘slip opinion’ is a judgment of a court as handed down. Sometimes

the pagination across slip opinions for a particular court is continuous

for a period, in which case a starting page should be included.

24.1.8 Identifying Judges

Rule Judges’ names should be included in accordance with rule 2.9 (so

should appear immediately after a pinpoint reference in parentheses).

For judges in federal courts, ‘Judge’, ‘Assistant Justice’ and ‘Circuit

Judge’ are all abbreviated ‘J’ (which appears after the judge’s name).

Examples Re Gault , 387 US 1, 13–14, 27–8 (Fortas J) (1967).

City of Birmingham v Citigroup Inc (ND Ala, No CV-09-BE-467-S,

19 August 2009) slip op 3 (Bowdre J).

258 Part V — Foreign Domestic Materials

24.2 Legislation: Code

Examples

Trade Act of

2002, 19 USC §§ 3803–5 (2006)

An Act

Relating to

Tobacco

Master

Settlement

Agreement

Compliance,

Ky Rev

Stat Ann § 15.300 (West 2009)

Element Statute Title

Title,

Chapter

or Volume

Number

Abbrev-

iated

Code

Name

Pinpoint Publisher’s

Name

Year of

Code and

Supplement

Rule 24.2.1 24.2.2 24.2.3 24.2.4 24.2.5 24.2.6

Note Both federal and state laws in the US are compiled into codes

(collections of statute arranged according to subject matter). In

accordance with rule 24.3, codes should generally be cited in

preference to session laws (statutes as enacted).

24.2.1 Statute Title and Original Pinpoint

Rule Generally, the title of a statute should not be included if the statute is

reported in a code. The title (as it appeared in the session laws) may

be included where:

 the statute is usually cited with its title;

 the title would assist in identifying the statute; or

 the title is otherwise important.

Where a statute title is included, it should be italicised and followed

by a (non-italic) comma. Where the title of the statute includes a year,

this should be retained in the title. ‘The’ should be omitted from the

beginning of a statute title.

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If a statute title is included, an original pinpoint (that is, the title, chapter, volume or section number cited in the session laws) may also be included after the statute name. If an original pinpoint is included, there should be no comma between the statute title and the original pinpoint, and the original pinpoint should be followed by a comma.

Examples 35 USC § 102.

Federal Deposit Insurance Act, 12 USC §§ 1811–35a (2006).

Securities Exchange Act of 1934, 15 USC §§ 78a–78jj (1934).

National Environmental Policy Act of 1969 § 102, 42 USC § 4332 (2000).

24.2.2 Title, Chapter or Volume Number in Code

Rule If the code is divided into titles, chapters, volumes, etc, that contain non-consecutively numbered sections, paragraphs, articles, etc, the number of the title, chapter, volume, etc, should be included. Where the numbering of sections, articles, paragraphs, etc, across an entire code is continuous, the title, chapter, volume, etc, number should be omitted.

For the federal USC and unofficial federal codes, the title number should precede the abbreviated code name (for example, ‘14 USC’).

For state codes, the title, chapter, volume, etc, number should appear as it does in the code cited. Generally, it appears after the abbreviated code name as part of a decimal pinpoint reference (for example, ‘§ 63.155’ refers to section 155 within chapter 63). However, it may also appear before the abbreviated code name (for example, ‘1 Pa Con Stat § 1991’ refers to section 1991 within title 1).

Examples 5 USC § 6 (1958).

Wis Stat § 944.21(2)(c) (2005). [Not: 944 Wis Stat § 21(2)(c) (2005).]

Mass Gen Laws ch 10 § 64 (2006).

735 Ill Comp Stat 5/2-201 (2009).

11 Del Code Ann § 464 (2010).

260 Part V — Foreign Domestic Materials

Notes The federal United States Code (abbreviated ‘USC’) is divided into titles. It is necessary to indicate the title number (before the abbreviated code name) when citing the USC, because the section numbers are non-consecutively numbered (that is, they begin again in each title). For example, 42 USC and 36 USC each contain a (different) § 3.

Title, chapter, volume, etc, numbers in state codes are generally included after the abbreviated code name as part of the pinpoint reference where the code is a subject matter code (dealing with only one area of law) or is organised by, for example, title, but contains chapters, volumes or sections that are numbered consecutively throughout the code.

24.2.3 Abbreviated Code Name

Rule An abbreviation of the name of the code should be included.

An official code, such as the United States Code (abbreviated ‘USC’), should be cited where available. Where an official code is not available, an unofficial code, such as the United States Code Annotated (abbreviated ‘USCA’) or the United States Code Service (abbreviated ‘USCS’) should be cited.

The name of the code should be abbreviated according to the commonly used abbreviation for that code. The abbreviations of some official or preferred codes are in the table below. (Where a publisher’s, editor’s or compiler’s name appears in the table, it should be included before the year in accordance with rule 24.2.5.)

Jurisdiction Abbreviated Code Name Publisher/Editor/ Compiler

Federal USC Alabama Ala Code Alaska Alaska Stat Arizona Ariz Rev Stat Ann Arkansas Ark Code Ann

Cal [Subject] Code West California Cal [Subject] Code Deering

Colorado Colo Rev Stat

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Connecticut Conn Gen Stat Delaware Del Code Ann District of Columbia DC Code Florida Fla Stat Georgia Ga Code Ann Hawaii Haw Rev Stat Idaho Idaho Code Ann Illinois Ill Comp Stat Indiana Ind Code Iowa Iowa Code Kansas Kan Stat Ann

Ky Rev Stat Ann West Kentucky Ky Rev Stat Ann LexisNexis

Louisiana La Rev Stat Ann Maine Me Rev Stat Ann

Md Code Ann [Subject] LexisNexis Maryland Md Code Ann [Subject] West

Massachusetts Mass Gen Laws Michigan Mich Comp Laws Minnesota Minn Stat Mississippi Miss Code Ann Missouri Mo Rev Stat Montana Mont Code Ann Nebraska Neb Rev Stat Nevada Nev Rev Stat New Hampshire NH Rev Stat Ann New Jersey NJ Stat Ann West New Mexico NM Stat

NY [Subject] Law McKinney NY [Subject] Law Consol

New York

NY [Subject] Law Gould North Carolina NC Gen Stat North Dakota ND Cent Code

Ohio Rev Code Ann LexisNexis Ohio Ohio Rev Code Ann West

Oklahoma Okla Stat Oregon Or Rev Stat

262 Part V — Foreign Domestic Materials

Pennsylvania Pa Cons Stat Rhode Island RI Gen Laws South Carolina SC Code Ann South Dakota SD Codified Laws Tennessee Tenn Code Ann Texas Tex Code Ann Utah Utah Code Ann Vermont Vt Stat Ann Virginia Va Code Ann Washington Wash Rev Code West Virginia W Va Code Wisconsin Wis Stat Wyoming Wyo Stat Ann

When citing the federal Internal Revenue Code, ‘26 USC’ may be replaced with ‘IRC’.

For subject matter codes, the subject area should be included as it appears (and using any abbreviation) in the code itself.

Examples 7 USC § 852 (2006).

40 USCA § 6134 (2010).

Haw Rev Stat § 281-32.

Ga Code Ann § 3-2-11 (West 2009).

IRC § 25A(a) (2006).

Cal Evid Code § 312 (Deering 2008).

Note An official code is one published by a government or by a statutorily authorised publisher.

24.2.4 Pinpoint Reference

Rule Any section, chapter, article, paragraph or other pinpoint reference should be included after the abbreviated code name.

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Pinpoint references should adhere to rule 3.1.4. However, the following abbreviations should be used in addition to and instead of the abbreviations in rule 3.1.4:

Designation Abbreviation Plural Abbreviation

Amendment amend Amendments amends Section § Sections §§ Title tit Titles tits

When citing an entire statute within a code, the span of sections (or, for state codes, the chapter, volume, etc) containing the statute should be included.

Examples 19 USC § 58 (1970).

Alaska Stat §§ 4.06.010–4.06.110 (2009).

Or Rev Stat ch 153 (2007).

Occupational Safety and Health Act of 1970, 29 USC §§ 651–78 (2000).

Note In state codes, pinpoint references are commonly decimal, with full stops (for example, ‘§ 4.4.2’), hyphens (for example, ‘§ 722-124’) or colons (for example, ‘§ 18:203’) between the component numbers making up the pinpoint.

24.2.5 Publisher’s Name

Rule When citing an unofficial state code, the name of the publisher, editor or compiler of the code should appear before the year (and any supplement information) in parentheses. In addition, when citing the codes listed in the table in rule 24.2.3, the publisher’s name should be included if it appears in the table.

There should be no punctuation between the publisher’s name and the year.

Examples W Va Code Ann §19-11-8 (LexisNexis 2008).

NJ Stat Ann § 6:1-2 (West 2009).

264 Part V — Foreign Domestic Materials

24.2.6 Year of Code and Supplement

Rule The year in which the version of the code cited was published (not necessarily the year of enactment of the relevant provision) should appear in parentheses.

When referring to electronic versions of codes, the year should be that in which the provision cited was last updated (on that electronic service).

When referring to printed versions of codes, the year should be (in order of preference):

• the year appearing on the spine of the volume;

• the year appearing on the title page of the volume; or

• the copyright year in the publication details of the volume.

If a statute appears wholly in a supplement to a bound volume, the year in which the supplement was published should be cited and should be preceded by ‘Supp’ (for example, ‘(Supp 1991)’). If the statute appears partly in a bound volume and partly in a supplement (that is, both are needed to access the text of the statute), the years of publication of both should be included in the form:

( Year of Code & Supp Year of Supplement ) (for example, ‘(1994 & Supp 1999)’).

In accordance with rule 24.2.5, where a publisher’s name is included, the year (and any supplement) should appear after the publisher’s name and should not be preceded by any punctuation.

Examples 14 USCA § 706 (2010).

Iowa Code § 331.101 (2008).

14 USC § 663 (Supp 2009).

21 USC §§ 331–4 (2006 & Supp 2009).

Ind Code Ann § 1-2-4-1 (West 2000).

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Note A new version of the USC is published every six years, and supplements are published at the end of each intervening year. Unofficial codes (such as the USCS and USCA) are updated more frequently.

24.3 Legislation: Session Laws

Freedom to Display the American

Flag Act of 2005,

Pub L No 109-243,

§ 4, 120 Stat 572, 573

(2006)

Examples An Act to Amend the

Indiana Code

concerning Pensions,

Pub L No 5-2008,

§ 2, 2008 Ind Acts

889, 890

Element Statute Title

Public Law,

Private Law or Chapter Number

Original Pinpoint

Volume or Year

Abbre- viated

Session Laws Name

Session Laws

Starting Page and

Pinpoint

Year

Rule 24.3.1 24.3.2 24.3.3 24.3.4 24.3.5 24.3.6 24.3.7

Notes Session laws are a collection of all statutes passed by a particular federal or state legislature in a legislative session. They are arranged in order of enactment.

Generally, a code should be cited in preference to a session law. However, a session law should be cited where:

• the statute has not yet been included in any official or unofficial code;

• the statute is no longer in force and not included in the latest version of the code;

266 Part V — Foreign Domestic Materials

• the statute makes changes to many scattered sections of a code; • it is important to refer to the enactment, amendment or repeal of

a provision or statute; or

• a private law is cited.

24.3.1 Statute Title

Rule The title of the statute (or a title by which the statute is commonly known) should be included. The statute title should adhere to rule 24.2.1. In particular:

• the statute title should be italicised and followed by a (non-italic) comma; and

• a year that appears in the title of the statute should be included.

If no short title is included and no commonly used short title exists, the statute should be identified by the date of enactment or, if that is unavailable, by the date on which the statute came into force. The long title of the statute should not be used. Where a statute is identified in this manner, its title should not be italicised and should appear in the form:

Act of Full Date (for example, ‘Act of 3 March 1925’).

Examples Detainee Treatment Act of 2005, Pub L No 109-148, 119 Stat 2739.

Act of 29 January 1937, Pub Law No 75-3, 50 Stat 5. [Not: An Act to Provide for Loans to Farmers for Crop Production and Harvesting during the Year 1937, and for Other Purposes …]

24.3.2 Public Law, Private Law or Chapter Number

Rule The public law number (abbreviated ‘Pub L No’), private law number (abbreviated ‘Priv L No’) or chapter number (abbreviated ‘ch’) of the statute should be included after the statute title and should be followed by a comma.

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Examples 1997 Emergency Supplemental Appropriations Act for Recovery from Natural Disasters, and for Overseas Peacekeeping Efforts, Including Those in Bosnia, Pub L No 105-18, 111 Stat 158.

Railroad Right-of-Way Conveyance Validation Act of 2004, Priv L No 108-2, 118 Stat 4025.

Act of 7 June 1897, ch 4, arts 2–5, 30 Stat 96, 96–7. [Not: An Act to Adopt Regulations for Preventing Collisions upon Certain Harbors, Rivers, and Inland Waters of the United States, …]

Notes From the 60th US Congress (that is, from ‘35 Stat’), statutes were given public or private law numbers that continued across all sessions of that Congress. These numbers comprise the number of the Congress (without its ordinal letters) followed by the sequential number of the particular law (for example, ‘Pub L No 108-37’ indicates the 37th Public Law passed by the 108th Congress). Even if the public or private law number is not present on the statute in this form, it should be included in this manner in a citation.

For statutes passed before the 60th Congress, the chapter number should be included. The year and the chapter number are sufficient to identify the law because the chapter number is the sequential number of a law (or resolution) as passed, restarting each year.

24.3.3 Original Pinpoint Reference

Rule Any pinpoint reference should be followed by a comma. Pinpoint references should adhere to rule 24.2.4.

Examples Voting Rights Act of 1965, Pub L No 89-110, § 2, 79 Stat 437, 437.

An Act to Incorporate the Girl Scouts of the United States of America, and for Other Purposes, Pub L No 81-460, §§ 2–4, 64 Stat 22, 22–3 (1950).

268 Part V — Foreign Domestic Materials

24.3.4 Volume or Year

Rule The volume number of the session laws should be included after the public law number, private law number or chapter number or after any pinpoint reference to the original statute.

For state session laws, where there is no volume number, the year of the volume should be included instead.

Examples Unborn Victims of Violence Act of 2004, Pub L No 108-212, 118 Stat 568.

School Bus Enhanced Safety Inspection Act, ch 5, 1999 NJ Laws 23.

24.3.5 Abbreviated Name

Rule An abbreviated form of the name of the session laws should be included.

The abbreviations of the official session laws for each jurisdiction are as follows:

Jurisdiction Abbreviated Session Laws Name

Federal Stat Alabama Ala Laws Alaska Alaska Sess Laws Arizona Ariz Sess Laws Arkansas Ark Acts California Cal Stat Colorado Colo Sess Laws Connecticut Conn Acts Delaware Del Laws District of Columbia Stat Florida Fla Laws Georgia Ga Laws Hawaii Haw Sess Laws Idaho Idaho Sess Laws Illinois Ill Laws Indiana Ind Acts Iowa Iowa Acts

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Kansas Kan Sess Laws Kentucky Ky Acts Louisiana La Acts Maine Me Laws Maryland Md Laws Massachusetts Mass Acts Michigan Mich Pub Acts Minnesota Minn Laws Mississippi Miss Laws Missouri Mo Laws Montana Mont Laws Nebraska Neb Laws Nevada Nev Stat New Hampshire NH Laws New Jersey NJ Laws New Mexico NM Laws New York NY Laws North Carolina NC Sess Laws North Dakota ND Laws Ohio Ohio Laws Oklahoma Okla Sess Laws Oregon Or Laws Pennsylvania Pa Laws Rhode Island RI Pub Laws South Carolina SC Acts South Dakota SD Sess Laws

Tenn Pub Acts Tennessee Tenn Priv Acts

Texas Tex Gen Laws Utah Utah Laws Vermont Vt Acts & Resolves Virginia Va Acts Washington Wash Sess Laws West Virginia W Va Acts Wisconsin Wis Sess Laws Wyoming Wyo Sess Laws

270 Part V — Foreign Domestic Materials

Where an unofficial session laws is cited, the name of the publisher, editor or compiler of the code should be included before the year in parentheses after the starting page or any pinpoint reference.

Examples Telemarketing Fraud Prevention Act of 1998, Pub L No 105-184, 112 Stat 520.

Act of 10 April 1862, c 173, § 7, 1862 NY Stat 343, 345.

An Act to Amend Section 3303 of the Government Code, Relating to Public Safety Officers, c 1259, § 1, 1994 Cal Legis Serv 6486, 6486–7 (West).

24.3.6 Starting Page and Pinpoint Reference

Rule The page of the session laws on which the statute begins should be included after the abbreviated name of the session laws.

Where a pinpoint reference to the original statute is included in accordance with rule 24.3.3, the page(s) on which the pinpoint appears in the session laws volume should be included after the starting page and should be preceded by a comma.

Examples Paperwork Reduction Act of 1980, Pub L No 96-511, 94 Stat 2812.

Animal Disease Risk Assessment, Prevention, and Control Act of 2001, Pub L No 107-9, §§ 2–3, 115 Stat 11, 11–16. [Not: … 115 Stat 11.]

24.3.7 Year

Rule The year in which the statute was enacted (or, if that information is unavailable, the year in which the statute came into force) should appear in parentheses after the session laws starting page (or any pinpoints). However, the year should not be included where:

• the same year is part of the title of the statute; or

• for state laws, the year of the session laws volume is included (in accordance with rule 24.3.4).

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Examples Smithsonian Facilities Authorization Act, Pub L No 108-72, §§ 4–5, 117 Stat 888, 889 (2003).

Child Citizenship Act of 2000, Pub L No 106-395, tit II, 114 Stat 1631, 1633–6. [Not: … 114 Stat 1631, 1633–6 (2000).]

An Act to Amend the Indiana Code concerning Corrections, Pub L No 102-2002, 2002 Ind Acts 1597. [Not: 2002 Inc Acts 1597 (2002).]

24.3.8 Legislative History: Amendments, Repeals and Insertions

Rule Where a session law inserts, repeals or amends a provision of a code (or another session law), this may be indicated in accordance with rule 3.8.

Examples Sarbanes-Oxley Act of 2002, Pub L No 107-204, § 201, 116 Stat 745, 771 (2002), inserting 15 USC § 78j-1(g) (2006).

42 USC § 2473(c)(2)(A), as amended by NASA Flexibility Act of 2004, Pub L 108-201, § 2(a), 118 Stat 461, 461.

24.4 Constitutions

Rule The titles of US federal and state constitutions should be italicised. Pinpoint references should adhere to rule 24.2.4.

Examples United States Constitution art IV § 3.

United States Constitution amend XXI.

Texas Constitution art 1 § 8.

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24.5 Delegated Legislation

24.5.1 Federal

Rule Where subordinate legislation appears in the Code of Federal Regulations (abbreviated ‘CFR’), it should be cited as follows:

Title of Regulation , Title CFR Pinpoint ( Year ).

The title of the regulation may (but need not) be included. A ‘part’ in the CFR is designated ‘§’. Paragraphs and sections are separated from the part number by a decimal point (for example, ‘§ 101.2’ refers to part 101 section 2). The year should be that of the CFR consulted (not necessarily the year of promulgation of the regulation).

Where subordinate legislation does not appear in the CFR (or there is good reason to cite the subordinate legislation as gazetted), it should be cited in the Federal Register (abbreviated ‘Fed Reg’) as follows:

Title of Regulation , Volume Fed Reg Starting Page , Pinpoint ( Full Date ).

Examples 8 CFR § 101.1 (1986).

Whaling Provisions — Consolidation and Revision of Regulations — Collection-of-Information Approval, 50 CFR § 230 (2009).

Enhancing Airline Passenger Protections, 74 Fed Reg 68 983, 68 985 (30 December 2009).

Note US federal delegated legislation is initially gazetted in the Fed Reg. Important pieces of delegated legislation are then compiled into the CFR. For the same reasons that a session law may be cited instead of a code (see rule 24.3), it may be appropriate to cite the Fed Reg even though a piece of delegated legislation appears in the CFR.

24.5.2 State

Rule Where state subordinate legislation appears in a code of regulation, this should be cited where available. Otherwise, subordinate legislation should be cited as gazetted. Citations should appear in

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accordance with rule 24.5.1. However, the usual abbreviation of the state code or gazette should replace ‘CFR’ or ‘Fed Reg’ as appropriate.

Examples 220 Ind Admin Code 1.1-2-2 (2007).

Submetering of Natural Gas Service by General Motors Corporation, 30 NY Reg 18 (29 May 2008).

Note State codes of regulation are often referred to as ‘administrative codes’ (usually abbreviated ‘Admin Code’).

24.6 Federal Congressional Materials

24.6.1 Debates

Rule Congressional debates should be cited as follows:

Volume Congressional Record Pinpoint ( Year ).

Where it is not otherwise apparent, the chamber (‘Senate’ or ‘House of Representatives’) may be included after the year in the parentheses, preceded by a comma.

Where only a Daily Edition of the Congressional Record is available, it should be cited as follows:

Volume Congressional Record Pinpoint (daily ed, Full Date ).

Pinpoint references to the Daily Edition should include ‘H’ for House of Representatives and ‘S’ for Senate, and should appear in the form:

S/H Page Number (for example, ‘H1987’).

In citations of the bound Congressional Record and the Daily Edition, the speaker’s name may be included between the pinpoint and the year. It should appear in parentheses and adhere to rule 6.1.1 (so the speaker’s first and last names should be included and positions should only be included after the name if they are relevant).

274 Part V — Foreign Domestic Materials

Examples 1 Congressional Record 10 (James Garfield) (1874, House of Representatives).

156 Congressional Record H148 (Ann Kirkpatrick) (daily ed, 19 January 2010).

24.6.2 Bills and Resolutions

Rule Congressional Bills should be cited as follows:

Bill Title , Abbreviated Name of Chamber Number of Bill , Ordinal Number of Congress Congress ( Year ).

The House of Representatives should be abbreviated ‘HR’, and the Senate should be abbreviated ‘S’.

Congressional resolutions should be cited as follows:

Resolution Title , Abbreviated Type of Resolution Res Resolution Number ,

Ordinal Number of Congress Congress ( Year ).

The resolution title may be omitted. The following abbreviations should be used for the relevant type of resolution:

Type of Resolution Abbreviation

House Resolution HR Res Senate Resolution S Res House Concurrent Resolution HR Con Res Senate Concurrent Resolution S Con Res House Joint Resolution HRJ Res Senate Joint Resolution SJ Res Senate Executive Resolution S Exec Res

Where congressional resolutions are not easily accessible, a citation of Statutes at Large (in accordance with rules 24.3.4–24.3.6) or the Congressional Record (in accordance with rule 24.6.1) may be included between the number of the Congress and the year. If a citation of the Daily Edition of the Congressional Record is included, the year should be omitted (but the full date included in accordance with rule 24.6.1).

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Examples Guam Commonwealth Act, HR 100, 105th Congress (1997).

Resolution Condemning the Taliban Regime and Supporting a Broad Based Government in Afghanistan, H Con Res 336, 105th Congress (1998).

Authorization for Use of Military Force against Iraq: Resolution of 2002, HRJ Res 114, 107th Congress (2002).

Joint Resolution Providing for the Acquisition of Certain Lands in the State of California, HRJ Res 10, 56th Congress, 31 Stat 711 (1900).

HR Res 1010, 111th Congress, 156 Congressional Record H139 (daily ed, 13 January 2010).

Note US Bills are referred to as ‘Acts’ before and after enactment.

24.7 Restatements

Rule Restatements of law published by the American Law Institute should be cited as books authored by the Institute (in accordance with chapter 5). However, where the restatement is a subsequent restatement (that is, where the restatement is not the first restatement), the title should appear as follows:

Restatement ( Ordinal Number of Restatement in Words ) of Subject Area

(for example, ‘Restatement (Third) of Trusts’).

Pinpoint references should always include a section number. References to comments, reporter’s notes and other subdivisions of the sections should be included after the section number. The word ‘comment’ should be abbreviated ‘cmt’ (and ‘comments’ should be abbreviated ‘cmts’).

Examples American Law Institute, Restatement (Second) of Contracts (1981) § 176.

American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States (1987) § 465 cmt (a).

276 Part V — Foreign Domestic Materials

Note The restatements are effectively codifications of US common law principles by groups of experts. They are commissioned by the American Law Institute and generally regarded as authoritative.

24.8 Other

Rule For further information on the citation of United States materials, see the latest edition of The Bluebook: A Uniform System of Citation.

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25 Other Foreign Domestic Materials

Note This chapter contains general guidelines for the citation of foreign legal materials (including non-English language materials) that are not otherwise covered in this Guide.

Where specific rules for a jurisdiction are included in the preceding chapters of this Part, those rules should be used. Where foreign legal materials are similar to materials in jurisdictions for which specific chapters are included, the rules for the similar jurisdiction should be adapted as appropriate.

25.1 Translations of Legislation and Decisions

25.1.1 Non-English Primary Materials Translated by Author

Rule Where the author of a document (or another person on behalf of the author) translates non-English primary materials:

• translations of elements in citations should appear in square brackets, following the translated element (for example, ‘Undang-Undang Dasar Republik Indonesia 1945 [Constitution of the Republic of Indonesia 1945]’); and

• translations of titles should not be italicised, even where the titles themselves are.

Where the author has made the translation, this should be indicated at the end of the citation in the appropriate footnote by including ‘[author’s trans]’.

Where another person has translated materials on behalf of the author, this should be indicated at the end of the citation in the appropriate footnote as follows:

[ Translator’s Name trans]

278 Part V — Foreign Domestic Materials

Alternatively, a statement that all translations are by the author (or another person on behalf of the author) should be included in the text, in the author’s note or in the first footnote containing a translation. In that case, it is not necessary to indicate the translator in each footnote.

Examples The legislation provides that a person ‘born in the Kingdom or who arrived before the age of 12 and who has regularly and principally resided there since’7 may not be deported.

__________ 7 Loi du 15 décembre 1980 sur l’accès au territoire, le séjour,

l’établissement et l’éloignement des étrangers [Law of 15 December 1980 on the Access to the Territory, the Stay, the Establishment and the Removal of Foreigners] (Belgium) art 21(1) [Nawaar Hassan trans].

8 Code civil [Civil Code] (France) art 147 [author’s trans].

__________ * All translations are by the author, except where otherwise

indicated. 1 Urheberrechtsgesetz [Copyright Law] (Switzerland) 9 October

1992, SR 231, art 29(2)(a).

25.1.2 Foreign Primary Materials Consulted in English (Published Translations)

Rule Where a published translation of legislative materials or judicial decisions is cited, a citation to the primary source should be included in English (and in accordance with rules 25.2–25.3), followed by a citation to the published translation in square brackets.

The published translation should be cited in accordance with the applicable rules of this Guide for the type of source (for example, in accordance with chapters 4 or 5 or rule 6.15). However:

• the name of the author or editor of the published translation should be followed by ‘trans’; and

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• where the published translation is a book, the citation should adhere to rules 5.1–5.5 (and not the form prescribed by rule 5.6 for translations of books).

Any year included in the citation of the published translation should be the year of publication of the translation (not the year of enactment of the foreign law or of a foreign decision).

If a pinpoint reference is included in the citation of the primary source, the citation of the published translation should include the corresponding pinpoint reference (that is, the page on which the relevant provision appears in the translation) where available. If the translation begins on a certain page of the published translation, a starting page and pinpoint (as appropriate) should be included.

Examples Civil Code (France) [John H Crabb trans, The French Civil Code (Rothman, revised ed, 1995)].

Act on Special Measures concerning the Handling of Legal Services by Foreign Lawyers (Japan) Act No 66 of 1986 [Ministry of Justice (Japan) trans, English Translation of Act on Special Measures concerning the Handling of Legal Services by Foreign Lawyers (2008) <http://www.cas.go.jp/jp/seisaku/hourei/data/hls.pdf>].

Criminal Code (People’s Republic of China) Fifth People’s Congress, 1 July 1979, art 2 [Chin Kim trans, The Criminal Code of the People’s Republic of China (Sweet and Maxwell, 1982) 25].

Jand’heur I, French Court of Cassation, 21 February 1927 [Edward A Tomlinson trans, ‘Tort Liability in France for the Act of Things: A Study of Judicial Lawmaking’ (1988) 48 Louisiana Law Review 1299, 1366].

Note Translation information should always be included where a translation has been relied upon.

280 Part V — Foreign Domestic Materials

25.2 Judicial and Administrative Decisions

Rule Foreign judicial, quasi-judicial and administrative decisions from common law systems should be cited as consistently as possible with chapter 2. In particular:

• where a case is reported, it should be cited in the report series (the name of which, if not in the Appendix, should be written out in full but not italicised in accordance with rule 2.3.2);

• in accordance with rule 2.6, the name of the court may be included in parentheses after any pinpoint references; and

• abbreviations of judicial titles should appear as they do in the case or decision cited (and otherwise in accordance with rule 2.9.1).

Citations of other foreign decisions should include the following elements where available and appropriate:

• the case name (the parties’ names or any name by which a case is commonly referred to);

• the name of the court or body deciding the matter (to which the jurisdiction should be added if it is not apparent from the name);

• the case or decision number;

• the full date of the decision;

• the details of any report series in which the case is contained, preceded by ‘reported in’; and

• a pinpoint reference (where necessary).

These elements should be separated by commas. However, a comma should not precede ‘reported in’. These elements should appear in the order in which they are listed above, unless convention in the relevant legal system is to do otherwise.

Where it would assist in retrieval, a URL may be included after the first citation to a decision. The URL should adhere to rule 6.15.6.

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Examples Asuquo v State [1967] 1 All Nigeria Law Reports 123, 126–7 (Bairamian JSC) (Supreme Court of Nigeria).

ALCC Brown Enterprises Ltd v Savaiinaea [2009] WSSC 2 (30 January 2009) [41]–[43] (Sapolu CJ) (Supreme Court of Samoa).

Idecheel v Uludong (Unreported, Supreme Court of Palau, Appellate Division, Beattie, Miller and Hoffmann AsJJ, 1 August 1994) 2.

Verfassungsgerichtshof [Constitutional Court of Austria], G 48/06, 6 October 2006, 9.

Corte costituzionale [Italian Constitutional Court], No 239, 29 December 1982 reported in [1983] I Il Foro Italiano: Raccolta Generale di Giurisprudenza 2, 4–5.

Hamburg Intermediate Appellate Court, 1 U 59/48, 7 December 1948 [Hans Ballreich et al trans, Decisions of German Superior Courts Relating to International Law: 1949–1949 (Carl Heymanns Verlag, 1956) 90].

25.3 Legislative Materials

Rule Foreign judicial, quasi-judicial and administrative decisions from common law systems should be cited as consistently as possible with chapters 3, rule 23.2 or rule 24.2 (as appropriate). However, the jurisdiction should not be abbreviated.

Other foreign legislative materials (including delegated legislation) should be cited as follows:

Title of Foreign Law ( Jurisdiction ) Other Information , Pinpoint .

The title of the foreign law should be italicised. However, if the title appears in a foreign language and italicisation is not used in that language, the conventional equivalent of italicisation (if any) should be used.

The jurisdiction should not be abbreviated.

282 Part V — Foreign Domestic Materials

Elements of other information, which should be separated by commas, may include:

• the name of the body (other than a Parliament) responsible for promulgating the law;

• the number of the law (for example, ‘Act No 3 of 1982’);

• the full date on which the law was enacted or took effect; and

• a citation of an official government publication in which the law is contained.

Where elements of other information are included in the title of the law, they should not be repeated.

Where it would assist in retrieval, a URL may be included after the first citation to a foreign law. The URL should adhere to rule 6.15.6.

Examples Passports Act 1982 (Papua New Guinea).

Sexual Offences Act 2006 (Kenya) ss 3, 5(1)(a)(i).

Penal Code (Kiribati) c 67, s 161.

Änderung der Lebensmittelkennzeichnungsverordnung 1993 [Amendment of the Grocery Labelling Regulation 1993] (Austria) 9 January 2008, BGBl II, 8/2008.

Undang-Undang Nomor 1 Tahun 1974 Tentang Perkawinan [Law No 1 of 1974 on Marriage] (Indonesia) art 2(1).

Aliens Act (Sweden) No 2005:716, ch 8 s 12 para 3 [Ministry for Foreign Affairs (Sweden) trans, Aliens Act (2005:716) (2006) <http://www.sweden.gov.se/sb/d/5805/a/66122>].

Criminal Code (Germany) § 80 [Michael Bohlander trans, Übersetzung des Strafgesetzbuches (Juris, 2009) 49].

Note When citing foreign codes, it is generally not necessary to include other information. However, where there is good reason for inclusion, for example in order to refer to the law as at a certain date, other information may be included.

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25.4 Other Non-English Language Materials

Rule Non-English secondary or other sources should be cited in accordance with the relevant rules of this Guide for the source type.

A translation of any non-English citation element should follow that element in square brackets, where appropriate.

Examples Jürgen Schwarze, Der Reformvertrag von Lissabon [The Reform Treaty of Lisbon] (Nomos, 2009) 181.

‘Quelques vices de procédure’ [Some Procedural Flaws] on Le blog du droit européen des brevets [Blog of European Patent Law] (13 September 2009) <http://europeanpatentcaselaw.blogspot.com/2009/ 09/quelques-vices-de-procedure.html>.

Note Published translations of books should be cited in accordance with rule 5.6.

320

Bibliography

Australasian Legal Information Institute (10 January 2010)

<http://www.austlii.edu.au>

The Bluebook: A Uniform System of Citation (Harvard Law Review Association,

18 th

ed, 2005)

British and Irish Legal Information Institute <http://www.bailii.org>

Chinese University Hong Kong, Citation Styles (August 2008)

<http://www.cuhk.edu.hk/policy/academichonesty/p03_4_4a.htm>

Dickerson, Darby, ALWD Citation Manual: A Professional System of Citation (Aspen

Publishers, 3 rd

ed, 2006)

French, Derek, How to Cite Legal Authorities (Oxford University Press, 2 nd

ed, 2003)

McGill Law Journal, Canadian Guide to Uniform Legal Citation (Carswell, 6 th

ed,

2006)

McLay, Geoff, Christopher Murray and Jonathan Orpin, New Zealand Law Style Guide

(Thomson Reuters, 2009)

New York University School of Law Journal of International Law and Politics, Guide

to Foreign and International Legal Citations (Wolters Kluwer, 2 nd

ed, 2009)

Nygh, Peter E and Peter Butt (eds), Butterworths Concise Australian Legal Dictionary

(LexisNexis Butterworths, 3 rd

ed, 2004)

Prince, Mary Miles, Prince’s Bieber Dictionary of Legal Abbreviations: A Reference

Guide for Attorneys, Legal Secretaries, Paralegals, and Law Students (WS Hein,

6 th

ed, 2009)

Publications Department and Law Reporting Department, Singapore Academy of Law,

The Singapore Academy of Law Style Guide (2004)

Raistrick, Donald, Index to Legal Citations and Abbreviations (Sweet and Maxwell,

3 rd

ed, 2008)

United Nations Documentation: Research Guide (10 February 2010)

<http://www.un.org/Depts/dhl/resguide>

Woodley, Mick (ed), Osborn’s Concise Law Dictionary (Sweet and Maxwell, 11 th

ed,

2009)

Example text and citations are taken in some cases from (2009) 33 Melbourne

University Law Review and (2009) 10 Melbourne Journal of International Law.

Australian Guide to Legal Citation 321

Suggestion Form

When using the AGLC, you may become aware of instances where it does not

adequately address a citation issue. Please take the time to complete and return this

suggestion form with details of the issues you have encountered so that they can be

addressed in the next edition of the AGLC.

Description of Problem (Include Reference to Relevant Rules)

Guide to finding case law on Austlii.docx

Locating Case Law on Austlii

Go to www.austlii.edu.au

From the left hand side, select the jurisdiction.

For example, “commonwealth” for federal cases.

Select the court you seek, for example, “Federal Court of Australia”.

Select the first letter of the Case Name, for example “S” for “Spotless”:

Scroll down until you get to Spotless; alternatively hit “Control +F” and enter Spotless into the search box.

If you cannot locate a case where you expect it to be, send an email to taxline@taxinstitute.com.au for assistance.

instructions - assignments Vers 2019 (2).docx

INSTRUCTIONS FOR ASSIGNMENT ANSWERS – 2020 term 1

1) All assignment cover pages must include the following items:

1) The full names and student numbers of each student.

2) Unit Code: (TLAW603).

2) Regarding the maximum word count allowed:

1) The answers for question 1 and question 2 should each not exceed 2 pages.

4) The essay type answers for questions 1 and 2 should be properly referenced using the Australian Guide to Legal Citation.

5) Penalties may be applied for breaching the maximum length for specific answers involving a reduction of the original mark up to a maximum of 20% for each additional page.

6) Please note the grading rubric in the unit outline (at the end of the document).

7) Formatting requirements: All answers should be typed using the following:

I. Times New Roman 12.

II. Double spacing.

8) Submission ( due date and time ): 22nd May 2020 at 15:00. All assignments must be submitted electronically by each student using Moodle by pulling or pasting the computer file into the Moodle Assignment Submission Folder found under week 8. All assignments submitted after the due date and time will have marks deducted from the original total mark of the assignment at a rate of 20% for each day that it remains outstanding as a late submission penalty.

9) The full assignment must be electronically submitted to the Turn-It-In Folder by each student for an originality check before the above due date and time. The Turn-It-In folder on Moodle may be found under week 9. Students should submit the assignment to Turn-It-In through Moodle by pulling or pasting the file into the above folder. All assignments submitted after the due date and time will have marks deducted from the original total mark of the assignment at a rate of 20% for each day that it remains outstanding as a late submission penalty.

10) The assignment counts 35% towards the total grade for this Unit.

11) The assignment is an individual assignment. Students should not work together in groups in completing it! Plagiarism will be penalised severely by a reduction of marks up to 100% of the final grade depending upon the extent of the copying and any other plagiarism and cheating.