4.3 When to reference
Subject to instructions from your lecturer, you should assume that proper acknowledgment of your sources is required for all forms of assessment, including examinations (both open and closed book), essays and problem-solving assignments.
It is important to know when proper acknowledgment of sources is required. As a rule of thumb, there are four basic occasions in legal writing when you should provide a citation:
- when you make a statement of law
- when you report another’s word or ideas
- when you refer to other sources
- when you adopt information or opinions.
4.3.1 Statements of law
When you state what the law is on some topic, you must cite where that law is found, that is, in which case and/or in which statutory provision. The case or statutory provision is the legal authority for the statement of law that you have made. It is a mere assertion on your part if you do not back it up with a reference to the relevant legal authority.
EXAMPLE 4.1
In Victoria it is an offence to disrupt religious worship.1
________
1 Summary Offences Act 1966 (Vic) s 21(1).
Without the footnote providing the source of the law that makes disrupting religious worship an offence, your statement has no force.
4.3.2 Reports of another’s words or ideas
When you say that someone said something (i.e. you attribute some particular words to someone), you must cite who said it and where. This applies whether you are directly quoting someone (i.e. reproducing their exact words) or paraphrasing them (changing their words but expressing the same basic idea).
EXAMPLE 4.2
Henderson states that ‘law school is the appropriate forum to inculcate professional norms and a vision of law as a noble public profession’.8
________
8 Bethany Rubin Henderson, ‘Asking the Lost Question: What is the Purpose of Law School?’ (2003) 53(1) Journal of Legal Education 48, 49.
Or:
According to Henderson, it is appropriate for law schools to teach future lawyers professional norms and ideals.8
________
8 Bethany Rubin Henderson, ‘Asking the Lost Question: What is the Purpose of Law School?’ (2003) 53(1) Journal of Legal Education 48, 49.
4.3.3 Reporting an idea expressed by more than one source
Where you have seen the same idea expressed in a number of different sources and you want to make a point of that, then you should make that clear.
EXAMPLE 4.3
Many scholars have argued that the decriminalisation of cannabis will have a positive benefit on society.5
________
5 See, for example, E Single, P Christie and R Ali, ‘The Impact of Cannabis Decriminalisation in Australia and the United States’ (2000) 21(2) Journal of Public Health Policy 157. See also, N Donnelly, W Hall and P Christie, ‘The Effects of Partial Decriminalisation on Cannabis Use in South Australia, 1985–1993’ (1995) 19(3) Australian Journal of Public Health 281.
4.3.4 References to further sources
When you want to refer your reader to a further source (i.e. beyond what you are conveying in your text), you should cite that source. Your reference may tell the reader to see that further source for more information, as a source for a supporting view, as a source for a contrasting view, or because it is not covered specifically by your work and so on.
EXAMPLE 4.4
This paper focuses on the legality of certain artificially intelligent technology in war as it exists and will not review the ethical implications of the use of such technology in certain circumstances.13
________
13 For a comprehensive discussion on the ethics of AI technology in war see Robert Sparrow, ‘Killer Robots’ (2007) 24(1) Journal of Applied Philosophy 62; ICRC Cross, Ethics and Autonomous Weapon Systems: An Ethical Basis for Human Control? (Report, 3 April 2018) <https://www.icrc.org/en/document/ethics-and-autonomous-weapon-systems-ethical-basis-human-control>; Ronald Sandler (ed), Ethics and Emerging Technologies (Palgrave Macmillan, 2013).
4.3.5 Adopted information or opinions
When you make or imply a statement, assertion or claim which contains information that you have taken from someone else (whether wholly or in part), then you must cite that source. This still applies if you are adding your own words or ideas into the mix.
If you are adopting an opinion or interpretation that you have taken from someone else (i.e. you are not simply reporting another’s view but are adopting it as your view as well), then you must cite that source.
When you refer to another’s information or view, be clear about whether you are just reporting it or also adopting it as something you endorse. This is an important difference. Much student writing is unclear on this important distinction. It is a common weakness that undermines otherwise good work.
EXAMPLE 4.5
There is clear evidence that recidivism rates remain unacceptably high in Victoria. For example, among males aged between 25 to 40 years who leave a Victorian prison after a term of 24 months or more, the recidivism rate (for indictable offences committed within 12 months of release) is 43%.5
________
5 Juno Nakagawa, ‘Recidivism Rates Among Ex-Prisoners in Victoria, 2010–2020’ (2022) 23(1) Australasian Journal of Comparative Criminological Studies 45, 47.
This style of citation implies that you have adopted the information or opinion provided by someone else. That is, you have accepted Nakagawa’s claim and are repeating it as a claim you yourself are making. In contrast, if you simply wanted to report that Nakagawa says that 43 per cent of inmates reoffend within 12 months of release, then you should cite Nakagawa as described in section 4.3.2. That style of reporting does not imply that you adopt Nakagawa’s claim as your own or one that you endorse.
