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Researching Australian Law

I. Introduction

I.A. Legal structure of Australia

The Commonwealth of Australia consists of six states and two major territories. These are often referred to by abbreviations, as follows:

Minor territories include the Norfolk Islands (NF) plus seven other territories in the Indian Ocean, South Pacific Ocean and Antarctica. The ACT, the Northern Territory, and the Norfolk Islands are self-governing and have their own courts. The other territories are non-self-governing.

The Commonwealth of Australia came into existence on 1 January 1901, created from six formerly separate British colonies. The Australian Constitution was contained in an Act of the British Parliament, the Commonwealth of Australia Constitution Act (1900).

Federation meant that the six colonies (called states after Federation) surrendered some powers to form a central government to deal with national issues. However, each state maintained its own identity, with a state constitution, state laws, state courts, and so on.

The six Australian colonies were each founded at a different time. The legal system applicable to each also differs.

The Commonwealth Parliament can make laws only if given the power by the Constitution to do so. However, there are some areas of duplication. If the Commonwealth law does cover an area where there is also a state law, the state law is invalid to the extent that they are inconsistent. English common law applies in matters not covered by either Australian or state law.

As does the U.S., Australia has three branches of government: the executive, the legislative and the judiciary. There is also a separation of powers doctrine. One difference from the U.S., however, is that, under the Australian Constitution, all of the Ministers (department heads in the Executive Branch) must be Members of Parliament (the legislative branch).

Until the 1980s, the British Parliament and courts still maintained some jurisdiction over Australia; and some pre-1901 British laws remain in effect in the country today.

I.B. General Australian legal information sources

I.B.1. Online Sources

There are numerous important electronic resources devoted to Australian law. However, four of the most important are the following:

“Update to Researching Australian Law,” by Nicholas Pengelley. This is a research guide prepared by Nicholas Pengelley, the chief law librarian of Osgoode Hall Law School in Ontario. Pengelley has many professional credits to his name, including being designated joint Australian Law Librarian of the Year in 1997. The guide, which was last updated in May 17, 2006, summarizes the development of Australian law and discusses most aspects of researching the subject.

Also at Globalex is "A Guide to online research resources for the Australian Federal Legal System with some reference to the State Level," by Petal Kinder, the Court Librarian at the High Court of Australia. dated August 2007.

AustLII ( http://www.austlii.edu.au) is the Australasian Legal Information Institute, which is a joint facility of the University of Technology, Sydney, and the University of New South Wales Faculties of Law. Its function is stated on its website: “AustLII publishes public legal information — that is, primary legal materials (legislation, treaties and decisions of courts and tribunals); and secondary legal materials created by public bodies for purposes of public access (law reform and royal commission reports for example) and a growing collection of law journals.” [quoted from http://www. austlii.edu.au/austlii/]

SCALEplus ( http://www.scaleplus.law.gov.au) is a long-established governmental legal database, owned by the Attorney-General’s Department of the national government. However, it is being replaced by ComLaw (see below). [It only has information up to 2005].

ComLaw ( http://www.comlaw.gov.au) is a new database, which is replacing SCALEplus. It is also operated by the Attorney-General’s Department of the national government.

The SCALEplus site clearly explains what Commonwealth law is still found there and what is now found on ComLaw. See the following quote:

The Acts-Current Compilations and the Numbered Acts databases on SCALEplus are up-to-date as at 31 December 2005. However, please note that no other new material has been added [to SCALEplus] since 1 January 2005.

The Attorney-General’s Department has developed a new legislative repository that will eventually replace SCALEplus. The new system, known as ComLaw..., became available online on 1 January 2005. It contains:

  • Commonwealth primary legislation, as well as other ancillary documents and information, in electronic form, and
  • the new Federal Register of Legislative Instruments (FRLI) which was established on 1 January 2005 under the Legislative Instruments Act 2003 as the authoritative source for legislative instruments and compilations of legislative instruments.

As of this writing (January 2006), the SCALEplus website still contains historical databases, and the legislation of the non-self-governing Territories. However, these materials will eventually be migrated to ComLaw.

I.B.2. Print sources

This research guide includes only print sources that are in the collection of the Harvard Law School Library.

I.C. What is not covered in this guide

I.C.1. Indigenous Law

A primary area of Australian law not covered in this guide is the law of, or affecting, Australia’s indigenous people. Some coverage of Indigenous Law Resources may be found on AustLII at http://www.austlii.edu.au/au/other/IndigLRes and Australia Law Online at http://www.law.gov.au.

I.C.2. “Delegated Legislation”

The concept of “delegated legislation” or “subordinate legislation” exists at both the national and state levels of Australian government. This term includes rules, regulations, ordinances and by-laws. Many statutes provide that someone other than Parliament may be delegated powers to make laws in relation to specific matters. The process for making each class of delegated legislation is specified in the statute authorizing its creation. Entities authorized to make delegated legislation include the Governor-General of the Commonwealth; governors of states; Ministers of the Crown; or a statutory body such as a board or municipal council.

Due to the wide variety of forms of delegated legislation, further coverage of that subject is beyond the scope of this research guide. At the national level, many regulations are published in the Commonwealth of Australia Gazette, http://www.publications.gov.au/. Commonwealth Statutory Rules are among the “legislative instruments” included in the FRLI section of ComLaw, http://www.comlaw.gov.au/. Databases of Consolidated Regulations and Numbered Regulations of the Commonwealth and state governments are also available on AustLII, http://www.austlii.edu.au/databases.html.

II. Primary sources

II.A. Constitutions

II.A.1. National Constitution

A pdf version of the Australia constitution, up to date as of 1 June 2003, can be found through ComLaw.

II.A.2. State Constitutions

For information on state constitutions, see “Queensland’s Constitutional Convention Background Document.”

Australia’s six states have constitutions that were originally adopted as follows:

  • New South Wales, Constitution Act 1902
  • Queensland, Constitution Act 1867
  • South Australia, Constitution Act 1934
  • Tasmania, Constitution Act 1934
  • Victoria, Constitution Act 1975
  • Western Australia, Constitution Act 1889

Full texts of each state constitution, updated to include recent amendments, can be found on AustLII. Under the appropriate state, click on “Consolidated Acts,” then click on “C” and search the alphabetical list for the act named above.

II.B. Legislation

The simplest method to locate Australian legislation is to use AustLII, which offers the full text of session laws and reprinted legislation from all Australian jurisdictions (as well as much more on ComLaw). Current thought is that AustLII can be slightly out of date and to check that site as well as ComLaw. These are not official versions; generally, official versions may be found by referring to the website for the parliament of the jurisdiction. (See II.B.1. and II.B.2., below)

II.B.1. Commonwealth legislation

Commonwealth legislation can be found both in print and online. However, print services are giving way to finding legislation through AustLII or through one of the government websites, SCALEplus or ComLaw.

Print sources for Commonwealth legislation

Commercial updating services, designed as current case digests but including much other information, include:

Australian Current Law (Butterworths), prior to 1991 KU24 .A6 A83

In 1991, Australian Current Law was split into:

Australian Current Law — Legislation, 1991- KU11 .A94, and

Australian Current Law — Reporter, 1991- KU22 .A94.

A guide explaining what is included in each of these series, and how to use them, is available from the Queensland University of Technology Library, Brisbane.

Annotation services for Commonwealth legislation

Annotation services for Commonwealth legislation, which are commercially published, include:

Commonwealth Statutes Annotations (Lawbook), (2004- ) ; KU12 .C66. (Library has current edition only.) This is the supplement to Acts of the Australian Parliament, 1901-1973, and the Acts of the Parliament of the Commonwealth of Australia. It updates acts, contains cases and provides summaries of statutory provisions. Acts are arranged by title.

Federal Statutes Annotations (Butterworths), (1993- ) KU12 .F43. (Library has current edition only.)

These two works, produced by different publishers, serve similar functions.

II.B.2. State legislation

AustLII is often the best place to find current state and territorial legislation. If a more up-to-date Act or Regulation must be found, use the website of the relevant parliament, found by using the links at http://www.aph.gov.au/find/other_links.htmor by looking each up at:.

II.C. Case law

An excellent summary of the history of the Australian courts and case law can be found in Pengelley, Update to Researching Australian Law. For further information, Pengelley refers the researcher to Derham, Maher and Waller, An Introduction to Law, KU70 .D47x 2000.

Additional information about the Australian court system may be found in Crawford and Opeskin, Australian Courts of Law, 4th ed., (Melbourne: Oxford, 2004), KU3441 .C73x 2004; or in Australia’s Legal System, issued by the Attorney-General’s Department.

II.C.1. Structure of the court system

The High Court of Australia, is the highest court of the land in Australia. It is given original and appellate jurisdiction in a number of areas named in the Constitution. It also serves as the Court of Disputed Returns in disputes relating to the validity of federal election results. Appeals from the lower federal courts may be taken to the High Court with special leave.

Two other primary federal courts are the Federal Court and the Family Court.

The courts of the states and territories sit within the national hierarchy as well, with a Court of Appeals or a Supreme Court at the apex of each jurisdiction. Appeals lie to the High Court of Australia with special leave.

II.C.2. Reporting of court decisions

To find an Australian case on line, if an unreported version is sufficient, first consult AustLII.

AustLII has available unreported versions of many Commonwealth and State Decisions. It often has those of the High Court within an hour after they have been handed down. AustLII also provides the full text of transcripts of arguments before the High Court. See Commonwealth High Court of Australia Transcripts database on the AustLII site.

Unreported judgments from most jurisdictions are also available on Lexis and Westlaw.

The website of the individual court may be the only source of a very recent decision. Click here for a listing of the courts.

If a citation is needed, the best available source, according to Pengelley, is the Australian Case Citator, KU22 .A93. (The last volume is looseleaf.) Also useful for this are the Australian Digest, KU19 .A3 A93; and Laws of Australia, KU11 .L39x (see III.B.). If none of these is available, searching by case name in AustLII, Lexis or Westlaw may give the citation.

II.C.3. Online sources of Commonwealth court decisions

Decisions of the High Court of Australia may be found online at High Court Decisions 1903- ; on LexisNexis at File Name AUSCAS; and on Westlaw’s database High Court of Australia Cases 1903 - ; HCA-CS.

Federal Court Decisions are available at AustLII; on Lexis in the AUSCAS file and, if unreported, in the UNRPT file. On Westlaw, federal court cases may be found in the Federal Court of Australia Cases 1984- , database FCA-CS; and in the Australian Federal Cases database, AUFED-CS-ALL

For further information on availability of Australian case law on Lexis and Westlaw, consult the current Lexis and Westlaw database directories (print copies available at the Langdell Reference Desk).

II.C.4. Printed reporters

Most Australian jurisdictions have official print reporters:

  • The Commonwealth Law Reports; cases determined in the High Court of Australia (CLR) v.1- (1903/1904 - ) KU18 .A2 1905
  • The Federal Court Reports (FCR), Federal Court of Australia v.1-159 (1984 2007) KU21 .F4 A2 1984 (also on Westlaw)
  • Family Law Reports, v.1-36 (1976-2007) KU536.3 .F36
  • New South Wales Law Reports (NSWLR) ( 1971-2006) KUC 2.2 .A21971
  • Northern Territory Law Reports (NTLR), (1992- )KUB2.3 .N67,
  • Queensland Reports (QdR), (1958- ) KUD 2.3 .Q44,
  • The South Australian State Reports (SASR), v. 1-95 (1971-2006) KUE2.3 .S68
  • Tasmanian Reports (TR), (1979- ) KUF2.3 .T38
  • Victorian Reports (VR), (1957- ) KUG2.2 .A21957
  • Western Australian Reports: authorized law reports of the Supreme Court of Western Australia (WAR), (1960- ) KUH2.2 .A2196

II.D. Treaties

The Commonwealth government negotiates and signs Australian treaties.

A wide range of information and resources regarding treaties involving Australia is found in the Department of Foreign Affairs and Trade’s Australian Treaties Library on AustLII.

III. Secondary sources

III.A. Websites

The following are a selection of web sites which may be of use:

III.B. Legal encyclopedias

Australia has two legal encyclopedias:

III.C. Treatises

The following are major texts on Australian law available in the Harvard Law School Library, along with their call numbers.

Online one can also consult Australian materials by practice areas in Westlaw: Corporations, Financial Services, Insolvency & Bankruptcy, Insurance, Securities, Taxes and Trade Practices. Such materials do not appear to be available on Lexis except for a treatise on International Arbitration.

(According to Cook, there are also looseleaf services on administrative law, company law, conveyancing law, employment law, environmental law, and many other subject areas. Cook, p.293.)

Additionally, the National Library of Australia, is making their catalog part of WorldCat adding some 12 million bibliographic records during 2007. These records may contain more in-depth treatments on many subjects on the law in Australia and can be obtained via inter-library loan.

General Treatises

J. Carvan, Understanding the Australian Legal System, 4th ed., Pyrmont, NSW: Lawbook Co., 2002. KU70 .C37 2002x.

C. Cook, et al., Laying Down the Law, 5th ed., Sydney: Butterworths, 2001. KU70 .L39x 2001.

M. Meek, The Australian Legal System, 3rd ed., Pyrmont, NSW: LBC Information Services, 1999. KU70 .M44 1999.

Administrative Law

G. Flick, Federal Administrative Law, Sydney, Law Book Co., 1984- 2 v. Looseleaf, KU2450 .F62x.

Roger Douglas, Douglas and Jones' Administrative Law, 5th ed. (Federation Press, 2006), KU2450 .D68 2006.

Matthew Groves and H.P. Lee, Australian administrative law: fundamentals, principles, and doctrines (Cambridge University Press, 2007), KU2450 .A9768 2007.

Banking Law

Alan L. Tyree, Banking law in Australia, 5 th ed., Chatswood, NSW, 2005, KU885.T97x 2005.

W. S. Weerasooria, Banking law and the financial system in Australia, 5th ed., Sydney, Butterworths, 2000. KU885.W44 2000.

Bankruptcy

Andrew R. Keay and Michael Murray, Insolvency: personal and corporate law and practice, 4 th ed., Sydney, 2002, KU964.K43 2002x.

R. Tomasic and K. Whitford, Australian insolvency and bankruptcy law, 2nd ed., Sydney: Butterworths, 1997 KU964 .T66x 1997.

Conflict of Laws

P. E. Nygh and M. Davies, Conflict of Laws in Australia, 7th ed., Sydney: Butterworths, 2002. KU480 .N95 2002x.

Constitutional Law

Suri Ratnapala, Australian Constitutional law: Foundations and Theory, 2nd ed. (New York, Oxford U. Press, 2007). KU1750 .R38 2007.

A. Blackshield and G. Williams, Australian constitutional law and theory: commentary and materials, 4th ed., Sydney: Federation Press, 2006. KU1750 .B63x 2006.

Contracts

Jeannie Marie Paterson, Andrew Robertson, and Peter Heffey, Principles of Contract Law, 2 nd ed., Sydney, 2005, KU810.H44x 2005.

J. W. Carter and D. J. Harland, Contract law in Australia, 4th ed., Sydney: Butterworths, 2002. KU810 .C373 2002.

Corporations

H. A. J. Ford et al., Principles of corporations law, 12th ed., Sydney: Lexis Nexis Butterworths, 2005. KU956 .F67 2005x.

Criminal Law

Simon Bronitt and Bernadette McSherry, Principles of Criminal Law, Sydney, LBC Information Services, 2001, KU 3800.B76x 2001.

P. Gillies, Criminal Law, 4th ed., North Ryde, NSW: Law Book Co., 1997. KU3800.G55 1997x.

Richard Edney, Australian Sentencing: Principles and Practice (Cambridge U. Press, 2007), KU4795 .E36 2007.

Environmental Law

G. M. Bates, Environmental Law in Australia, 5th ed., Sydney: Lexis Nexis Butterworths, 2002. KU1507 .B37 2002.

D.E. Fisher, Australian Environmental Law, (Lawbook, 2003), KU1507 .F568 2003.

Equity

R. P. Meagher, et al., Meagher, Gummow, and Lehane’s equity, doctrines, and remedies, 4th ed., Sydney: Lexis Nexis Butterworths, 2002. KU490 .M43x 2002.

G.E. Dal Pont and D.R.C. Chalmers, Equity and Trusts in Australia, 4th ed. (Pyrmont, 2007), KU 490 .D35 2007x.

Evidence

Jeremy Gans and Andrew Palmer, Australian principles of evidence, 2 nd ed., Sydney, Cavendish Publishing, 2004, KU3542.P35x 2004.

J. Heydon, Cross on Evidence, 6th Australian edition, Sydney: Lexis Nexis Butterworths, 2000. KU3542 .H487x 2000.

Family Law

Anthony Dickey, Family Law, 4 th ed., Sydney, Law Book Co., 2002, KU540.D53 2002.

H. A. Finlay, et al, Family Law in Australia, 5th ed., Sydney: Butterworths, 1997. KU540.F56 1997x.

Inheritance and Succession

R. Atherton and P. Vines, Australian succession law: commentary and materials; families, property and death. Sydney: Butterworths, 1996. KU770 .A84x 1996.

Intellectual Property

S. Ricketson, The law of intellectual property: copyright, designs & confidential information, 2nd ed., Sydney: LBC Information Services, 1999- (Looseleaf ). KU1100 .R55x.

J. McKeough, Intellectual Property in Australia, 3d ed. (Butterworth's, 2004), KU1100 .M35 2004.

Mark J. Davison, et al., Australian Intellectual Property Law (Cambridge U. Press, 2008).

Medical Law

J.A. Devereux, Australian Medical Law, 3rd ed. (Routledge Cavendish, 2007),  KU1520 .D48 2007x.

Migration and Refugee Law

John Vrachnas, et al., Migration and Refugee Law in Australia: Cases and Commentary, New York, Cambridge University Press, 2007. KU2144 .M545 2007.

Native Title

R. Bartlett, Native title in Australia, 2nd ed., (Sydney: Lexis Nexis Butterworths, 2004), KU716.7.B37x 2004.

Melissa Perry, Australian Native Title Law, (Sydney, 2003), KU716.7.A31193 P47x 2003.

Privacy Law

Australian Law Reform Commission, Review of Australian Privacy Law (Sydney, 2007), 3 volumes, KU942.6 .A23 2007x.

Property Law

A.R. Buck, The Making of Australian Property Law (Federation Press, 2006). KU658 .B83 2006.

P. Butt, Land Law, 4th ed., Pyrmont, NSW: Lawbook Co., 2001. KUC66 .B87 2001.

Public International Law

B. R. Opeskin & D. R. Rothwell (Eds.), International law and Australian federalism, Melbourne: Melbourne University Press, 1997. ILS KU1985 .I58x 1997.

H. Reicher, (Ed.) Australian international law: cases and materials. North Ryde, NSW: LBC Information Services, 1995. ILS KU1985. A98 1995.

Donald K. Anton, International Law: Cases and Materials (Oxford University Press, 2005). ILS KU1985 .A96 2005.

Sam Blay, Public International Law: An Australian Perspective, 2d edition (Oxford University Press, 2005), ILS KZ1242 .P83x 2005.

Taxation

R. H. Woellner et al., Australian taxation law, 2005, 15th ed., North Ryde, NSW: CCH Australia, 2005. KU2790 .W64 2004x.

Trademarks

This LLRX article explains the Madrid System used by Australia for trademark law.

Torts

F. A. Trindade, Peter Cane, and Mark Lunney, The law of torts in Australia, 4th ed., S. Melbourne: Oxford University Press, 2007. KU940 .T75 2007x.

R.P. Balkin and J.L.R. Davis, The law of torts, 3rd ed., Sydney, Butterworths, 2004, KVB236.B35x 2004.

Trusts

Denis S.K. Ong, Trusts Law in Australia, 3rd ed., Federation Press, 2007, KU740 .O54x 2007.

III.D. Journals and indices

The Harvard Law School Library’s holdings include most of the Australian law journals in print. They are shelved in alphabetical order with the other Anglo-American law journals.

Some Australian law journals are available through LexisNexis, Westlaw and Hein Online. Some are freely available through their websites and can be located with a web search engine or with Jurist Australia, http://jurist.law.mq.edu.au/. Some journals are also available in the databases section of AustLII, http://www.austlii.edu.au/databases.html.

Indices to legal periodicals, which contain references to Australian journals, include:

Index to legal periodicals, followed by the Index to legal periodicals and books:
Law School Ref K33 .I54, the print work includes the years 1926 to 2007; or, networked at http://www.law.harvard.edu/library/collections/electronic/legal.php#ilp. Also found through the ILP file on Lexis and the ILP database on Westlaw.

Current Law Index: Ref K33 .C87, the print work includes the years 1980 to 2007 and the electronic version of it is: Legal Trac: Networked at http://www.law.harvard.edu/library/collections/electronic/legal.php#legaltrac.

Index to foreign legal periodicals: Networked at
http://www.law.harvard.edu/library/collections/electronic/legal.php#iflp;
or in print at ILS RR K33 .I525.

Hein Online: http://www.law.harvard.edu/library/collections/electronic/legal.php#heinonline.

IV. Acknowledgements

For ideas on format and coverage, this research guide owes a great deal to Pengelley, Update to Researching Australian Law.

Prepared by Virginia McVarish, January 2006.
Revised by K. Storin Linitz, 4/2008