Australia - research guide

By Laura Griffiths, July 2008. Revised August 2011

Introduction: background & constitution

 

After millennia of peaceful history, first Western contact with the “Terra Incognita Australis” was made at the start of the Seventeenth Century. This led eventually to Captain James Cook claiming the territory in the name of George III in 1770 whilst on an expedition to chart the eastern coast of the mysterious southern continent, renaming it “New South Wales”. 

The full extent of the usefulness of this new discovery was only made apparent 7 years later, when the American revolution ended the practice of transporting convicts out to the colonies and British gaols began to suffer severe overcrowding. Various naturalists who had accompanied Captain Cook, and those eager to capitalise on trade with pacific Asia, suggested New South Wales as a possible alternative, and so in 1787 Captain Arthur Phillip of the Royal Navy was asked to lead the fleet there and to be the first governor. (source - National Archives of Australia)

Since then, the constitutional and legislative history of Australia has developed and evolved apace, leading to a situation now of a blossoming federal country, with a written constitution, which retains the UK monarch as its head of State. As the country was primarily ruled directly from London, followed by a long transitional period to full independence, the Australian legal system is very much fashioned on the UK legal system, with legislation arranged in a similar way, and even with much case law being relevant in either jurisdiction. (source - University of Melbourne legal research guide)

According to its Parliament, the constitutional history of Australia can be divided into seven overlapping historical periods:

 

  • 1787-1820s  Autocratic rule of New South Wales, by governors appointed in London
  • 1820s-1850s  Establishment of additional colonies, and the emergence of part-elected Legislative Councils in a number of them
  • 1850s-1890s  Gaining of what was called “responsible” government, effectively meaning a wide-ranging self-government, in all colonies
  • 1890s  Federation period: national constitution written by politicians and ratified by the people
  • 1901-1930s   Development of new Commonwealth and separate international presence, culminating in the Statute of Westminster in 1931, granting total legislative independence.
  • 1930s-1980s  effective complete independence from UK achieved, culminating in Australia Act 1986, whereby all residual constitutional power of the UK government over Australian government was terminated
  • 1990s-  Renewed push for a republic, Australian born head of state, and symbolic break with the British monarchy.  

For further information, see the book Introducing the law by Easton et al (North Ryde: CCH Australia, 1985).

 

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Primary sources: legislation

IALS library has very good coverage of Australian state and territory legislation from all periods of its legal history. All of the legislation can be found at the relevant state/territory jurisdiction class mark (or in the basement at the relevant RES classmark). These are:

  • GD2.E - Australian Capital Territory
  • GD3.E - New South Wales
  • GD4.E - Queensland
  • GD5.E - South Australia
  • GD6.E - Tasmania
  • GD7.E - Victoria
  • GD8.E - Western Australia
  • GD9.E - Northern Territory

Pre Federation:

There are a number of different types and series of legislation which have emanated from Australia due to this diverse legislative history. Until the 1820s, there was no need to produce any legislation, as there was direct rule from Westminster over the colonies. The notion of the Aborigine peoples having their own judicial system was somewhat ignored by the colonists, and is looked at below.

The 1823 Act for the better administration of justice in New South Wales and Van Diemen’s land, and for the more effectual government thereof did establish a legislature for the colonies, but with very limited powers (all laws passed had to be consistent with existing English law), and in 1828 another act was passed in Westminster (Australian Courts Act) which held that all English laws existing up to 1828 would apply automatically to the colonies. However, effectively it is possible to trace Australian legislation back to 1823. Ensuing as it did from the British legal system, the Australian legislature is very similar to that of the UK, with primary and delegated legislation, the delegated legislation either bringing into force or amending the primary legislation. Acts are also available either as passed, or as amended.

Most of these colonial period statutes are kept down in the closed basement - please ask at the enquiry desk for further assistance should you wish to view these.

Federal Government:

Following the passing in Westminster of the 1900 Commonwealth of Australia Constitution Act, Australia was given a Federal government legislating on federal matters, as well as state parliaments in each state for local matters. The Australian Constitution sets out the respective powers of federal and state governments, and the interaction thereof, and is freely available at the Parliament of Australia website.

The class mark. for the federal country of Australia is GD1, and so all federal legislation can be found at GD1.E.1, GD1.E.2, GD1.E.3 and GD1.E 4 (and also in the closed basement at these classmarks).

Current, up to date compilations of legislation:

At GD1.E.1 are volumes of updated/amended legislation arranged thematically called Acts of the Parliament of the Commonwealth of Australia, which are published by the Australian Government Publishing Service, and kept current by looseleaf updates. From the same source we also keep compilations of laws in date at various historical points ( please check the catalogue for further details) which are shelved in the basement at RES GD1.E.1.

At GD1.E.3 are loose leaf volumes of in-force statutory rules arranged by subject over 12 volumes, called Statutory rules of the Commonwealth of Australia, also published by the Australian Government Publishing Service. In the basement at this class mark are compilations of statutory rules in force at certain historic points.

Legislation as passed, year by year:

At GD1.E.2, and at RES GD1.E.2, are yearly volumes of statutes as passed, from 1901 to present day, and also some individual acts. These are entitled Acts of the Parliament of the Commonwealth of Australia passed during the year... 1901 - 1979 are in the basement at RES GD1.E.2. and volumes from 1980 onwards are on the open shelves at this classmark.

At GD1.E.4 we have volumes of statutory rules by year as issued, called Statutory rules of the Commonwealth of Australia issued during the year... Years 1904 - 1956 are in the basement at RES GD1.E.4, and years from 1957 onwards are on the open shelves at this classmark.

Post federation state legislation:

As is provided for in the constitution, state parliaments retained jurisdiction over various matters, and therefore continued to create their own legislation as they still do today. These series run seamlessly on from the pre-federal state legislation  with no distinction. IALS has generally very good holdings for all of the original states with year by year volumes of statutes, and in many cases historical compilations of law in force at certain dates - please check the catalogue for further details.

Some time after the creation of the Commonwealth Parliament, a further two territories were added to the set up, although these were completely under the control of the federal government. In 1908, New South Wales formally ceded the Australian Capital Territory - IALS library class mark GD2 - to the Commonwealth government, and South Australia did likewise with the Northern territory - IALS Library class mark GD9. Australia also has jurisdiction over a number of island territories (e.g. Christmas Island, the Coral Sea Islands), and materials for these can be found at GD10. As with the states, all levels of legislation can be found either as published by year, or in updated compilations, on the open shelves or down in the basement depending on age at the relevant class marks. To check our holdings state by state, perform a subject search on the IALS library catalogue with "Law - Australia" followed by the state you are interested in. This will then give you full details of which volumes and series we possess.

Map of Australia

 

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Legislation finding tools: print & electronic

 

A great deal of more recent Australian legislation is now readily available online. The Australian Law Online project of the Attorney General's office has been attempting to make Australian legal information freely available to all via the internet, and an integral part of this is the COMLAW legislation service. In this excellent and free site, you can search across all legislation currently in force, and also browse across all types and levels of federal legislation, (including bills which failed to become acts) either as made year by year, as a historical compilation, or as currently in force.

For state legislation, there is another excellent  and free online resource AUSTLII. The scope of legislation available from state to state may vary slightly, but in all instances you will be able to search at least for currently in force primary and secondary legislation. It should also normally be possible to search for legislation as made, and historically at a given point in time.

In terms of print resources, these may be slightly less useful unless you have some idea of what you are looking for. However, most of the by-year print series will have indexes available, and all of the current compilations are arranged by subject/theme to allow for easier searching. At GD1.H.6, we have a series called Australian Current Law which, year by year from 1981, has a Legislation volume detailing ALL legislation, both federal and state, passed over that year, and arranged by jurisdiction within subject. However - as this is published on a year by year basis, it would only be of use if you were checking for all enactments within a given year. The up-to-date compilations of legislation (both state and federal) would allow you to check the current law by subject rather than by numbered act.

Relating only to federal legislation, but otherwise very useful, we have Halsbury's Laws of Australia at GD1.H.8. This set of 30 plus looseleaf volumes, continually updated, provides a subject statement of current in-force Australian legislation, and works in exactly the same was as the UK series of Halsbury's, and whilst not primary legislation itself, it should point you back to the original piece of legislation.

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Primary sources: case law

The website of the High Court of Australia explains the role, functions and history of the Court, which is the highest court in the Australian judicial system.  There are useful legal links to the websites of other Australian courts, including the Federal Court and the Family Court.  On Austlii, there is an explanatory note concerning Privy Council Appeals from High Court of Australia decisions.

As with legislation, there are myriad series of law reports for Australia of both state and federal cases and again, as per legislation, the system is very closely modelled on the British Judicial system. The court hierarchy, however, reflects both the federal and state judiciaries, making the structure more complex. The Australian Bureau of Statistics have produced an explanatory guide. As with the UK, we do not ordinarily keep reports of judgments from the lower and criminal courts, unless they have been included in subject specific series.  Citation formats closely follow the UK model  of (year) volume - abbreviation - page number, such as (2001) 24 W.A.R 167, which is volume 24 of the Western Australian Reports, covering the year 2001, report commencing at page 167. Virtually all Australian citations are included in the Cardiff Index to Legal Abbreviations, a link to which can be found from the main screen of the IALS library catalogue.

Each state has law reports from their individual supreme courts, dating back to before the Commonwealth Government up to the present day.  However, coverage at IALS may be patchy or in digest form for some older materials. These will be at  the relevant jurisdiction classmark either in the basement or on the open shelves according to their currency. Please check the catalogue for further details. NB the materials identifier for law reports is G, eg so law reports from Queensland will start GD4.G and then a rolling number accordingly (such as the Queensland Reports at GD4.G.1), and law reports from Western Australia will start GD8.G (such as the State Reports - Western Australia at GD8.G.4). The major series of law reports for the states are as follows:

New South Wales Law Reports (GD3.G.14)

Queensland Reports (GD4.G.1)

South Australian State Report (GD5.G.2)

Tasmanian reports (GD6.G.1)

Victorian Reports (GD7.G.1)

Western Australian Reports (GD8.G.1)

IALS Library also has very full holdings for federal cases, dating back to the inception of the federal nation, the most commonly cited of which are called the Commonwealth Law Reports and which are shelved at GD1.G.1 (with older volumes in the basement at this classmark). Any series of reports from a court exercising federal jurisdiction, or which compiles reports from all Australian jurisdictions, will be classified somewhere at GD1.G. Older sets will be kept in closed access, but of the major currently active sets we have:

Commonwealth Law reports

Australian Tax cases

Australian Law reports

Australian Criminal Reports

Australian Family Law & Practice Reporter

Australian Family Law Cases

Australian Trade Practices Reporter

Australian Labour Law Reporter

Family Law Reports

Federal Court Reports

Administrative Law Decisions

Australian Corporations and Securities Law Reporter

Australian Tax Reports

Local Government and Environmental Reports of Australia

Federal Law Reports   

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Case law finding tools: print & electronic

Again, as with legislation there are a number of excellent online resources for finding Australian case law. The print finding tools available here at IALS library are also rather good, but for ease of purpose you may well prefer to use the electronic finding tools, as these will often link straight to an electronic copy of the case report.

Probably the best resource for case research is CaseBase from the Australian arm of Lexis. This very comprehensive case citator and annotator covers over 60 Australian report series, as well as the unreported decisions of the High Court, the Federal Court, the Supreme Courts of all of the Australian states and territories, and various other selected jurisdictions. Whilst this is not a full-text service, and as such you will not be able to link directly to a case report, its functionality is second to none. For known (or partly known) cases, you can search by citation, party name, judge, counsel or date. If you are searching speculatively for cases in a particular area, you can search by free text, by cases or legislation cited, or by catchword. The results are displayed in an excellent format, with a large amount of value added material, including all parallel citations, and a complete list of all cited and citing cases along with full and clear information as to how they were judicially considered. Probably the best idea would be to search for the information with this service, and then use the information gathered to move on to one of the other services mentioned to retrieve the reports in full text. The service CaseBase is available from our electronic law library, and is available to all library users onsite at IALS library.

In terms of electronic resources which will allow searching AND provide full text access, we have a couple of resources with varying benefits. From our LexisLibrary subscription it is possible to search for and access Australian cases,  by clicking international cases option on the right of the screen in the cases tab, entering the more sources option, setting the dropdown menu to Australia and then opening up the cases file. There are 18 series/collections of reported and unreported decisions, both state/federal and subject based available - to search across them all you will need to select each individual series. Although your search will be limited just to these options, the search screen is quite flexible, and allows you to search via the same parameters as CaseBase.

Offering slightly greater coverage of Australian cases, but with a much less user-friendly search screen, is the Australian content on Westlaw, available through the Westlaw International link at the top right of the Westlaw UK service. The Australian materials should be one of the options clearly available on the opening screen. Australian materials covered include both the Commonwealth and Federal Law Reports (unlike Lexis), as well as unreported cases from these courts, and also some state series, unreported state cases and some subject based series. In terms of searching, however, there is just a rather complicated free text search box, which requires the use of self-entered fields and boolean connectors, or a very unspecific 'Natural Language' search box. It would probably be worth having a look through the content information available and seeing exactly which reports are covered and then only using the service if you are sure it will have the series you are looking for. Both Lexis and Westlaw are available to all academic library users onsite at IALS library via our electronic law library page.

For hard copy case law, we have a complete set of the Australian case citator, which will allow you to check if a particular case has been cited in any other cases, but it would probably be easier to use the CaseBase service described above. We also have the Australian Digest, which groups cases together by subject - this is complete to about 2000 with yearly updating supplements. All of these materials are Federal only, and are classified at GD1.H. There is very little in the way of print finding tools for state cases, although there are some e.g. Tasmanian digest of Supreme Court cases at FOL GD6.H.2.

  

                                                                                                                                                                                    

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Aborigine law

When Australia was originally “discovered” by Captain Cook, Britain had two modes for dealing with the legal system in new territories. If land was taken “by conquest”, then there was assumed to be civilization there, and the legislature currently in place in the land would be recognized and assimilated by the new British rulers. If the territory was taken “by peaceful settlement”, then it was assumed that there was no valid civilization there and all British laws would exist in that territory as the birthright of the British conquerors. Clearly, the continent was inhabited by the Aborigine people already, and clearly the British settlers imposed their law, leading to a complex legal debate that still rages today. (Source: Reconcilliation Australia)

Whilst the Aborigine peoples did not have a formalized judiciary as we might understand it in Western terms, they did have a rich social culture in place which allowed for detection and punishment of wrongdoings which was completely ignored by the settlers. They also had the “rights” to the land in which they dwelt under British custom. Therefore the key (legal) points of contention have been 1) the prosecution of Aborigine people under the settlers legal system, and 2) the right of the Aborigine people to their land.

It is worth pointing to both the vast body of case law dealing with land rights and title which exists in Australia, and also to the many papers by various governmental departments investigating this issue. The Australian Law Reform Commission have published many reports on this subject, which are shelved in series with their other reports at GD1.J.38 (NB all reports are listed individually on the catalogue). The law reform commissions of the various states have also published a great deal of literature on this subject.

Austlii has an excellent online library of materials and resources relating to Aboriginal legal matters, called Austlii Indigenous Law Resources.

IALS Library hold a number of textbooks (over 40) relating to this subject - try a keyword search on the IALS Library catalogue using ABORIGINAL and AUSTRALIA as your search terms to find the full body of work which we have available.

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Books

IALS Library has a very good collection of textbooks and commentary on Australia, with over 300 textbooks relating to Australia generally, in addition to over 50 textbooks relating specifically to the various states. These range over various different aspects of the law in Australia - a subject search in the library catalogue using AUSTRALIA as one of your search terms, and the area of law you are interested in (e.g. TORTS, CENSORSHIP) should let you know our holdings in this area for Australia. Please note that some of our older material may be kept in the basement.  

Some of our more recent acquisitions include:

Clark, D.  Principles of Australian Public Law  Chatswood NSW: LexisNexis Butterworths, 2010

Fitzgerald, B.  Copyright future, copyright freedom: marking the 40th anniversary of the commencement of Australia's Copyright Act 1968   Sydney: Sydney University Press, 2011

Fleming, J. The law of torts   Pyrmont NSW: Thomson Reuters, 2011

Joseph, S.  Federal constitutional law: a contemporary view   Pyrmont NSW: Lawbook Co, 2010

Saunders, C.   The constitution of Australia: a contextual analysis   Oxford: Hart Publishing, 2011

Wright, D.   Remedies in equity: the laws of Australia   Pyrmont NSW: Thomson Reuters, 2010

 

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Journals and journal indexes

IALS Library has very good coverage of most major Australian law journals, with about 82 titles relating to combined or federal matters, and a further 36 state-specific titles. We also have older series which have now ceased publication, although many of these will be housed in our closed basement. Of our current series, the major titles include:

The Australian Law Journal

Federal Law Review

The Australian & New Zealand Journal of Criminology

Australian Business Law Review

Law and Justice Journal

Criminal Law Journal

Australian Bar Review

Griffith Law Review

Sydney Law Review      

Increasingly, much of our material is also available electronically.  LexisLibrary currently has 11 Australian law reviews in its databases, although this number may increase. Westlaw, whilst not having a vast amount of actual law reviews, does have good coverage of business and trade press. Hein Online also has approximately a further 30 Australian journals included full text in its database.

The database CaseBase (mentioned above) as well as providing a case citator service, also provides a comprehensive abstracting service for approximately 150 Australian journals. As before, these items will not be available in full text, but will give a clear indication of scope, coverage and availability for Australian legal journal articles. Many of the indexed periodicals are available in hard copy in the library - please check the catalogue for further details.        

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Dictionaries, directories and bibliographies

The major Australian Legal dictionary we have in hard copy is LexisNexis concise Australian legal dictionary, edited by Peter Nygh and Peter Butt. This has now run to its fourth edition (published 2011) and is the only Australia specific legal dictionary on the open shelves. The previous editions of this are in the basement. There is a limited but free to access Australian legal dictionary available from the Australian Law Central website, which also has a dictionary of Australian drafting terms.

The most up to date legal directory we have, the Australian legal directory, dates from 2002 - 2003, covering both law firms and individual practitioners across the country. Previous editions of this are kept in the closed basement. We also have Cate Banks's useful 2006 publication Law on the internet detailing a large amount of internet legal resources for Australia. There are various more up-to-date options online, such as Lawyers.com.au, which allows you to search for law firms by specialism across all states. Another useful online resource is the website of the Australian Institute of Criminology, which groups together useful directories of a number of different types of organizations associated with criminal justice, as well as various statistical bibliographies.

Of of our hard copy bibliographies for Australia, the most recent is Robert Watt's Concise legal research published in 2009. Among some of the titles we have which are not overly historical are:

Current Australian & new Zealand legal literature index (1973 - 1993)

Melbourne University Law Library Holdings list & location guide (1997)

Research guides include:

Campbell, E. Legal research materials and methods (1996)

Claremont, J. Plain English and the law (1996)

Online resources are more likely to be up to date. The Southern Cross Resource Finder is a web-based resource that enables users to discover collections from libraries, archives and museums which hold resources useful for the study of Australia and/or New Zealand.  The Australian & New Zealand Law and History Society maintain an excellent bibliography of legal history materials.

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Free web resources

There are a great deal of freely available legal resources on the web. For primary resources, the best starting point would be AUSTLII - the website of the Australasian Legal Information Institute mentioned above in this guide, which aims to make the law available to all. This marvellous resource contains case law, consolidated primary and secondary legislation, and numbered primary and secondary legislation from all Australian jurisdictions. Whilst this is not entirely comprehensive, it does contain a vast wealth of materials and can be accessed by anyone with an internet connection. Please do note, however, that volumes of material, and starting points for the different series of law reports, are likely to vary from jurisdiction to jurisdiction and from series to series.  Austlii includes the Australian Treaty Series which is fully searchable - by keyword, parties, subject, status and date - and this series is also available though the Department of Foreign Affairs and Trade website.

Another useful resource is the web gateway Eagle-i. This portal identifies and evaluates freely available web based legal resources offering primary and secondary materials, and other items of legal interest. There are currently over 195 tested and evaluated links on Australia.

Both the Commonwealth Government, and the governments of the different states and territories have very good websites with a wealth of useful information on them.    

The law library of the University of Sydney has created an online guide to Australian legal research, including further reading and information about legal citations. It has also created a list of useful and free web resources.

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