Researching Australian Law
The authors welcome suggestions for the improvement of this guide, especially with reference to sources that may have been overlooked.
Table of Contents
If you only remember one source for Australian legal research, make it AustLII (the Australasian Legal Information Institute).
The Commonwealth of Australia is a common law jurisdiction; a federation within the British Commonwealth, with Queen Elizabeth II as its head of state. The Queen is represented in Australia by a Governor-General at the national level, and in each of the six states by a Governor. The Australian Constitution, embodying the doctrine of separation of powers, prescribes the authority of the executive, legislative and judicial arms of government. It was enacted (by a British Act of Parliament) in 1901 and the then separate colonies were united as states of one country. As well as the six states there are three self-governing territories (one of them, the Australian Capital Territory, is the site of the federal seat of government, Canberra) and a number of external territories – islands in the Indian and Pacific Oceans, and the Australian Antarctic Territory. 1
Australia was first settled as a British penal colony in 1788 and, although there was a widespread indigenous population, was deemed “terra nullius” (empty land), a finding only overturned in 1992 by the famous land rights decision of the High Court of Australia in Mabo. 2 Early confusion about the date of reception of English law was resolved by an Imperial Statute holding that it was received into the colony of New South Wales and Van Dieman’s Land on 25 July 1828. 3 This is therefore the date of reception for Queensland, Victoria and Tasmania, which territories were originally part of that huge colony. Western Australia and South Australia, separately established colonies, have dates of 1829 and 1836 respectively for reception of English law.
Prior to Federation, each of the colonies had their own constitutions and had long been enacting laws in their own right, within certain limits concerning repugnancy and extraterritoriality. Under the federal compact the colonies had to give up certain rights and powers to the new Federal (Commonwealth) Government, while continuing to exercise others. The Constitution enumerates the legislative powers of the Commonwealth Government with the residue being left to the states (unless a matter is prohibited elsewhere in the Constitution), although the Federal Government has legislated for areas not specifically included in its powers by making use of ‘tied grants’ to state governments (i.e. grants for specific purposes). These ‘tied grants’ arrangements have witnessed an expansion of Commonwealth powers over the states. There is a good deal of potential for overlap in the state and federal jurisdictions as there is an assumption that many of the enumerated areas of federal power, except those areas where the Commonwealth is granted exclusive law-making power, are concurrent with that of the states law-making powers. Any conflict between state and federal laws is resolved by s.109 of the Constitution which provides that, in cases of conflict, the state law is inoperative to the extent that it is inconsistent, as long as the Commonwealth law exists. Although three Australian territories also have self government, their laws may be disallowed by the Federal Parliament, 4 and in addition, under s 122 of the Constitution, the Commonwealth has plenary legislative power over the territories, although the precise extent of this power is not clear.5
The Australian Constitution was agreed after being debated in a series of national conventions that took place during the 1890s. The record of these Convention Debates is now, but was not always, the principal primary source for assistance in interpretation of the Constitution and an objective determination of the original founders’ intent. 6 They have been reprinted a number of times and are now available in full text through the web site of the Australian Parliament. Many earlier primary documents concerned with the expanding settlement of the colonies during the 18th and 19th centuries, are contained in two multi-volume series, Historical Records of Australia, and Historical Records of New South Wales. See also an excellent resource provided by the National Library of Australia, Australian History, Selected websites.
The Australian Constitution owes much to those of the United States and Canada, the other great federations that existed at the time it was being drafted (although that of Switzerland also played a part). It in turn was employed as a model for the constitutions of later federations – those of India, Pakistan, Malaysia and Nigeria. Constitutional case law from those jurisdictions is thus of interest to Australian lawyers, particularly that of India in recent years.
There is currently no Australian Bill of Rights, although there have been many proposals to develop one over the years. An activist High Court, in the late 1980s and early 1990s, under Chief Justice Sir Anthony Mason, developed a limited theory of implied rights under the Constitution, which, for a time at least, led some to believe that a bill of rights was unnecessary. 7
In November 2008, the Federal Government established a National Human Rights Consultation Committee to undertake an inquiry and consultation process to gauge the need and support for statutory protection of rights, outside of a constitutionally entrenched bill of rights. The Committee reported in September 2009 and recommended, inter alia, the adoption of a Human Rights Act based on the dialogue model which recognizes that the three arms of government have significant, integrated roles to play in human rights protection. On 21 April 2010, the Federal Government announced it was not yet ready to endorse the Human Rights Act model and proposed a Human Rights Framework in its stead. This Framework has resulted in the scrutiny of draft legislation against human rights standards at the Parliamentary Committee stage; increased funding for human rights education and training; and a National Action Plan on human rights, to improve public service understanding of human rights.8 Despite the lack of human rights legislation at the federal level, in 2004 the Australian Capital Territory enacted a bill of rights with the passing of the Human Rights Act 2004 (ACT). Victoria enacted its Charter of Human Rights and Responsibilities in 2006.
There are a number of respected commentaries on the Australian Constitution, most of them having gone through several editions. The principal source-book remains the Annotated Constitution of the Australian Commonwealth, (Sydney: Law Book, 1901), by John Quick and Robert Garran, men who actually participated in or observed the Convention debates in the 1890s. Other major texts include:
A.Blackshield & G.Williams, Australian constitutional law and theory: commentary and materials, 5th ed., Sydney: Federation Press, 2010.
C. Howard, Australian federal constitutional law, 3rd ed., Sydney: Lawbook, 1985.
S. Joseph & M. Castan, Federal constitutional law: a contemporary view, 3rd ed, Thomson, Lawbook Co, 2010.
P. Lane, Australian federal system, 2nd ed, Sydney: Lawbook, 1979.
P. Lane, Lane’s commentary on the Australian constitution, 2nd ed., Sydney: Lawbook, 1997.
G. Moens & G. Trone, Lumb & Moens’ The Constitution of the Commonwealth of Australia, 7th ed, Sydney: Lexis Nexis, 2007.
S. Ratnapala, Australian constitutional law, foundations and theory, 2nd ed, Melbourne: OUP, 2007.
Winterton’s Australian federal constitutional law: commentary and materials, 3rd ed., Sydney: Thomson Reuters, 2013.
L. Zines, Commentaries on the Australian constitution, Sydney: Butterworths, 1977.
L. Zines, The High Court and the Constitution, 5th ed., Sydney: Federation Press, 2008.
Australia follows the Westminster model of government. The Head of Government, the Prime Minister, is the leader of the political party that commands a majority in the House of Representatives (the lower chamber in the Commonwealth Parliament, the Senate being the upper chamber). The number of Members elected to the House of Representatives depends on the size of the state’s population but the same number of Senators is elected by the people of the states, regardless of the size of population. The Senate was originally envisioned as the “States’ House”, which would look after the interests of the individual states, but it has always been partisan. The Australian political landscape has long been dominated by the Labor Party (left of centre) and a coalition of the Liberal Party and the National Party (conservative). Smaller parties, including the disbanded Australian Democrats, the Australian Greens Party and independent members sometimes hold the balance of power. At the federal level, a coalition of the Liberal Party and the National Party, led by Liberal Party Prime Minister Tony Abbott was elected to power in September 2013. As Prime Minister, Tony Abbott has promised to spend a week each year living and working in an indigenous community. There are no fixed terms for Australian governments, and although an election must be held after three years they are often called before this time has elapsed, for a variety of reasons. Fixed terms have been advocated, as well as an expansion of the term of office, but without success. Voting in Australian federal and state (and some municipal) elections is compulsory.
As mentioned above, the head of state is currently Queen Elizabeth II. There was a strong move to bring about an Australian Republic in the late 1990s, with a president as head of state. The model proposed was a ‘minimalist’ one which would, in essence, have seen the substitution of the Crown for a president in the Constitution, with the president being appointed by a two-thirds majority of the Federal Parliament. The national referendum to decide on amending the Constitution so as to bring about a republic, held in November 1999, was defeated, in large part because the advocates for a republic were split over the method of appointment of the president; a split exploited by those who favoured retention of the status quo. It is extremely difficult to effect any change to the Australian Constitution. It requires a “double majority” comprising a national majority of voters; and a majority of voters in a majority of the states to approve any amendment. Since Federation only 8 out of 44 proposals to amend the Constitution have been approved. The record of the debates from the constitutional convention which preceded the national referendum on the republic issue may be found at the Australian Parliament web site. For further information see australianpolitics.com and S.Vizard, Two weeks in Lilliput: Bear-Baiting and Backbiting at the Constitutional Convention, (Penguin, 1998).
While the Republic issue was extremely important, and will certainly be revived, many would argue that the most dramatic event in Australian political history was the dismissal by the Governor-General, in 1975, of the Government of Labor Prime Minister, Gough Whitlam. A good starting point for research on this still controversial topic is the web site, http://www.whitlamdismissal.com/.
In June 2010 Prime Minister Kevin Rudd was controversially removed from office by his Cabinet and replaced by Deputy Prime Minister, Julia Gillard, who became Australia’s first female Prime Minister. The August 2010 federal election was an early election called to essentially prove that the leadership spill had not lost the Labor Party its mandate from the people. The election resulted in a hung Parliament, with the ALP holding office only with cross-bench support from three Independent MPs and a fourth MP from the Australian Greens party. Rudd made two subsequent attempts to regain leadership of the Labor Party through a vote of the party causcas, and finally succeeded in June 2013, only to call an early election shortly afterwards for September 2013, in which he lost both the government and leadership of the ALP.
Another controversial issue in Australia was addressed in 2008 when the then newly elected Rudd Labor Government issued a formal apology to Australia’s indigenous peoples for their past mistreatment, especially in respect of what has become known as the Stolen Generations – children of Aboriginal and Torres Strait Islander peoples who were forcibly removed from their families. (Note also the report on the removal of non-indigenous Australians, known as the Forgotten Generations). A wealth of information about the workings of the Australian Parliament, the federal system, the different branches of government, the role of the Governor-General and more can be found at the Australian Parliament web site, and the links maintained there. For general information, a good starting point is the CIA World Fact Book. For an expanded overview and introduction to the Australian legal system, its history and development, see also:
R Hinchy, The Australian legal system, history, institutions and methods, Pearson Education Australia, 2008.
P.Parkinson, Tradition and change in Australian law, 5th ed., Pyrmont: N.S.W.: Thomson-Reuters/Lawbook Co., 2013
T.Reynolds & A.Flores, “Australia”, Foreign law: current sources of codes and legislation in jurisdictions of the world. Buffalo, N.Y., Hein, c1994- .
P. Vines, Law and justice in Australia: foundations of the legal system, 3rd ed., South Melbourne: OUP, 2013.
Waller, Derham, Maher and Waller, An introduction to law, 8th ed., Sydney: Lawbook, 2000.
Parliaments and Laws
The Australian Commonwealth Parliament and those of the states are bicameral, with the exception of that of the State of Queensland which abolished its upper house in 1922. The self-governing territories also have legislative assemblies. Proposed legislation is tabled in the originating house (usually, but not always, the lower house) as a Bill (a draft law or Act), accompanied by an Explanatory Memorandum (Explanatory Note in New South Wales).9 An explanation of the bill and its purpose (called the “second reading speech”) is then read to the house by the responsible minister. This explanation is often referred to by courts in determining the purpose behind a particular legislative provision and is extremely important to the research process. The bill may then be debated in the house (sometimes over a period of weeks, or even months) and possibly referred to a ‘standing’ or ‘select’ committee for further consideration, including public hearings, and a report. Once passed by the originating house the process is repeated in the other chamber – and the bill may again be referred to a committee. The text of bills, explanatory memoranda, all debates and the deliberations and reports of committees are available on the web sites of the various parliaments. That of the Commonwealth Parliament is comprehensive for the period starting in the mid 1990s. It is also extremely current; text is usually available within 24 hours. The Commonwealth Government maintains a list of other Australian parliamentary web sites.
Once legislation is passed by the second house (if it is), then the bill is sent to the Governor-General (for the Commonwealth) or Governor (for the states) for the Royal Assent. It is then published in its final “Act” form which comes into force either on the same day, or on a prescribed date in the future – stated in the Act, contingent on a certain other event, or on a date to be notified in a government gazette. If there is no information in the Act about commencement (stated in the first sections) then the Acts Interpretation Acts for each jurisdiction provide that Commonwealth, Victorian, New South Wales and Western Australian Acts come into force 28 days after the Royal Assent, and on the date of assent for South Australian and Queensland Acts. 10
These Acts, or session laws, are published initially in pamphlet form and then in bound volumes that collate all of the Acts passed during a given year. Amended Acts are periodically subjected to a ‘cut and paste’ process where all amendments are incorporated, and reprinted, or more usually, made available in electronic form as online “compilations” of the Act, with sessional, current and historical compilations now freely available for all jurisdictions. An Act compilation is the term typically attached to updated versions of Acts in their online form.
“Delegated” or “subordinate” legislation is often published under the authority of an Act (known as the enabling Act). Subordinate legislation created by the Commonwealth are now referred to as “Legislative Instruments”. Subordinate legislation includes the statutory rules and regulations that provide the machinery to implement the policy dictated by an Act. Subordinate legislation is tabled in parliament but is not subject to the same process as Acts and their publication is notified in the relevant Commonwealth or state government gazette. They are also initially issued as pamphlets, then annual bound volumes. They are also updated and reprinted, and are usually available online in original form, and as current and historical compilations.
Finding Australian Legislation
The Commonwealth Government’s own law database, ComLaw is the official source for Commonwealth Acts and legislative instruments (which includes statutory rules and regulations), as well as some territory legislation. ComLaw offers sessional Acts, regulations, etc and legislative compilations (including historical compilations), and the ability to navigate between principal and amending Acts, regulations, etc. The state legislative web sites also offer the official versions of legislation for that state and are hosted by the parliament web site or an associated legal body such as the Attorney-General’s Department or Office of Parliamentary Counsel. A list of the various parliament web sites with links to associated legislative web sites can be found at that of the Australian Government web site.
As well as the official versions of legislation, published on behalf of the various governments, the several commercial publishers (listed below) market a variety of unofficial versions, in print and e-based. These may be “raw” collections, for example the income tax and corporations legislation is typically reprinted every six months by two of the main commercial publishers. Or they may be kept up to date in topic-based value-added collections where the publisher annotates the Act with historical information and sometimes case references, or includes the Act in a topic commentary service, which might also provide regulations, rules, codes and practices, case law, and legal analysis. The local Australian platforms Westlaw AU, LexisNexis AU and CCH IntelliConnect provide legislative content within their commentary services, in addition to the print loose-leaf form.
All current Commonwealth legislation is complemented by two commercially published annotation services (Commonwealth Statutes Annotations (Thomson Reuters) and Federal Statutes Annotations (LexisNexis). Some of the states have at least one such service, some more comprehensive than others. Noting up information for legislation from all Australian jurisdictions is also included in two major commercial updating services primarily designed to provide current case digests, but which contain a wealth of other information – Australian current law (LexisNexis) and the Australian legal monthly digest (Thomson Reuters). Both are available in print and online.
Some Australian legislation is currently available via LexisNexis and Westlaw. An Australian fee-based service, Lawlex, provides a useful search engine and platform to access full text legislation available from the official government websites for all Australian jurisdictions, in addition to numerous valuable research aids including historical versions of Acts and parliamentary material (and much of the access, where it is to the official government sources, is free). Two other subscription databases of Australian legislation are LawOne on the TimeBase platform, and LawNow, on LexisNexis Australia (the Australian content LexisNexis platform). LawOne provides full text legislation for all Australian jurisdictions in both consolidated and sessional form, with associated legislative material including Bills, Explanatory Memoranda and Second Reading Speeches. Updated daily, LawOne offers a statutes judicially considered function to the section level of the Act. LawNow, available on the LexisNexis Australia platform, contains full text legislation from all Australian jurisdictions, linked to case and commentary services in the CaseBase and Halsbury’s laws of Australia databases respectively. Legislative history and historical versions of the legislation are available, as is a browse function.
For the non-Australian researcher the simplest method to locate Australian legislation, unless your library has an up-dated commentary service in the relevant area, is to visit AustLII. AustLII now provides the full text of both sessional and reprinted legislation from all Australian jurisdictions, provides hypertext linking within legislation and offers a rudimentary but very useful note-up function. To check the currency of the legislative databases on AustLII, click on the Update Status for Legislation link on the homepage. The various Australian jurisdictions may be searched individually through AustLII, or in total via that web-site’s search engines. If a required Act or Regulation cannot be found on the AustLII site, check the web site of the relevant parliament or state legislative web site. In addition, there are many web portals to Australian statute and case law, which are created for the legal practitioner, Foolkit for example.
Courts and Judgments
The story of the development of Australian law is complicated by the involvement of the Judicial Committee of the Privy Council, sitting in London. The Privy Council was for many years the ultimate court of appeal for Australia as it still is for some other Commonwealth jurisdictions – although not for England itself. The Judicial Committee itself is not an English court and its members have comprised judges from a number of Commonwealth countries, including Australia. Most of its members, however, have been English judges and the Privy Council has always applied English law. Although the full story is too detailed to be explained adequately here, it can briefly be stated that appeals to the Privy Council were permanently terminated after negotiations that resulted in the passing of federal and state Australia Acts in 1985 and 1986. The Federal Government had earlier passed legislation to abolish appeals in constitutional matters and from federal and territory courts in the 1960s and 1970s. For further explanation see Derham, Maher and Waller, An introduction to law (noted above) and the decision of the High Court of Australia in Kirmani v Captain Cook Cruises P/L (No.2.).
Because of the long established superior position of the Privy Council which applied English law, and the fact that, in some cases, it could over-rule decisions of the High Court, it was difficult for Australian law to develop its own identity. Decisions of the English appellate courts had, at the least, very high persuasive authority and this meant that Australia remained under the English shadow. Until the 1980s and the final termination of appeals to the Privy Council (and a 1978 decision of the High Court stating that it would no longer consider itself bound by decisions of the Privy Council 11), English reports and texts were extensively relied on, and the amount of homegrown legal literature was comparatively small. In the years since, that situation has altered radically. There has been an explosion in Australian legal writing; a proliferation of new texts and journal titles and of specialist law report series. Some of this writing can also be attributed to the doubling in the number of Australian law schools since the late 1980s. Decisions of English appellate courts are still referred to, and are probably still more persuasive than those of other jurisdictions, in part because Australian lawyers are more familiar with them, however it is common for Australian lawyers and judges to refer to decisions of the other major common law jurisdictions, particularly those of the superior courts of the United States, Canada and New Zealand.
The High Court is at the apex of the unified Australian legal system. The Constitution has vested it with original and appellate jurisdiction in a number of areas, and the High Court also sits as the Court of Disputed Returns in relation to disputes about the validity of federal elections. Appeals in most cases are subject to special leave. A very useful resource for High Court-related research is T. Blackshield, M. Coper, G. Williams (Eds.), The Oxford companion to the High Court of Australia (Melbourne: OUP, 2002).
There are three other federal courts, the Federal Court, the Federal Circuit Court and the Family Court. The courts of the states and territories also sit within the national hierarchy with either a Supreme Court or Court of Appeals at the local apex, from which appeals lie to the High Court. For further explanation of the Australian court system see Australia’s Legal System. See also J. Crawford & B. Opeskin, Australian courts of law, 4th ed., (Melbourne: Oxford, 2004).
The ‘raw’ or ‘unreported’ versions of all Australian court decisions (and those of many Commonwealth and state tribunals) are available from AustLII; those of the High Court usually within an hour of being handed down by the Court. AustLII also provides the full text of transcripts of argument before the High Court (a very useful resource for primary research). Unreported judgments from most Australian jurisdictions are also available in the Australian libraries on LexisNexis and Westlaw and the equivalent Australian platform, Lexis Nexis AU and Thomson Reuters’ Westlaw AU service).
Most Australian jurisdictions have an official, or authorized, series of law reports. They are:
Commonwealth Law Reports (CLR) High Court of Australia
Federal Court Reports (FCR) Federal Court of Australia
New South Wales Law Reports (NSWLR)
Northern Territory Law Reports (NTLR)
Queensland Reports (QdR)
South Australian State Reports (SASR)
Tasmanian Reports (TasR)
Victorian Reports (VR)
Western Australian Reports (WAR)
Most of these series are, or will be, available either through LexisNexis, Westlaw, LexisNexis AU or Westlaw AU. In addition to the authorized report series, there are many unauthorized series published by Thomson Reuters, LexisNexis or CCH. Some are general, some are subject-specific. Any family law-related decision of the High Court, for instance, would be published in the Commonwealth Law Reports (the only authorized series for decisions of the High Court), the Australian Law Reports (LexisNexis), Australian Law Journal Reports (Thomson Reuters), Family Law Reports (LexisNexis) and Family Law Cases (CCH). Note that although the Commonwealth Law Reports is the authorized series it may take a year or more for a given judgment to be published therein.
The Colonial case law project run by Professor Bruce Kercher of Macquarie University Law School deserves special mention. This project is making available decisions of the superior courts of the Australian colonies that were hitherto only available in newspapers, housed in a very few libraries. (However the National Library of Australia has now made available online the digitized early archives of Australia’s major newspapers.) Most of these decisions have never been available for study, certainly not readily, and some of them have already shed interesting insights into the treatment of indigenous peoples by courts in the 19th century. Major collections for New South Wales and Tasmania from the 18th and 19th centuries are already available, including a special collection that has made material available relating to the early 19th century coup against Governor Bligh (of Bounty fame), known as the Rum Rebellion. Additionally, the web-site provides access to unreported decisions of the Privy Council in respect of appeals from the Australian colonies before 1850. The Colonial case law project has also expanded beyond Australia and now comprises an eclectic range of cases from numerous jurisdictions including New Zealand Jamaica, China. Early English cases from the Court of Chivalry and the Old Bailey are also included.
Finding Australian Cases
If you have the details, and are content with the unreported version of a case, AustLII is the place to try first. Note that its coverage of the various courts and tribunals varies. That of the High Court is the most comprehensive, with the full text of all reported cases since the Court’s inception in 1903. Most others are of more recent origin. LexisNexis and Westlaw can be tried in the alternative, if your library has access. And do not forget the web sites of the individual courts and tribunals – which may be the only place to find a very recent judgment. A listing of these may be readily found at the National Library of Australia. If you do not have the citation, or require an alternate cite, use one of the two online Australian case citators, Casebase (LexisNexis) or FirstPoint (Thomson Reuters). FirstPoint is created from an amalgamation of the print publications, Australian case citator and the Australian digest, the latter, as the name implies, provides digests or summaries of reported Australian cases from 1825 (unreported coverage from 1999). You might also use one of the two legal encyclopedias, Halsbury’s laws of Australia (LexisNexis) or the Laws of Australia (Thomson Reuters), in print or online. AustLII now has a well developed free-access citator known as LawCite.
To find Australian cases generally on a topic, there are a variety of means, depending upon the resources at your disposal. CaseBase and FirstPoint provide digests of cases, so topic access is facilitated, otherwise consult a major recent text, commentary service; or one of the legal encyclopedias. Use any of these resources or even start with a search of journal literature in preference to a full text database search for general subject research. The latter tends to be too hit or miss.
Although all proposed treaty action considered by Australia must be tabled in Parliament, treaties are negotiated and signed by the Commonwealth Government as an executive process. JSCOT (Joint Standing Committee on Treaties) is the parliamentary committee responsible for inquiring into and reporting on matter arising from treaties, and the “National Interest Analyses” produced by the committee provides a means of determining the obligations and impact of the treaty upon Australia.
Full information about the Australian treaty-making process, national interest analyses, the text of multilateral and bilateral treaties and ratification, etc., information is available from the Australian Treaties Library prepared by the Department of Foreign Affairs and Trade (DFAT), and hosted on AustLII. The similarly named Australian Treaties Database, also prepared by DFAT, provides additional information on the current status and domestic implementation of treaties.
Both the Index to Legal Periodicals and LegalTrac index a growing, range of Australian law journals. For comprehensive research however, use the major general Australian legal journal index, AGISPlusText (Attorney-General’s Information Service). AGISPlusText includes coverage of the Australasian region (including New Zealand and the Pacific) and it also indexes a number of other major legal journals from the UK, the US and elsewhere. AGIS is one of the fee-based services available from Informit, which hosts a collection of other Australian journal databases, some of which will also be of use in legal research. These include FAMILY (Australian family and society abstracts), CINCH (Australian criminology), AFPD (database of the Australian Federal Police) and also APAIS, (general public affairs literature).
AGIS coverage commences in 1975, with full text from 1999. For journal literature before that date use the Index to legal periodicals.
A growing number of Australian law journal articles are available in full text through the online services of their respective publishers, LexisNexis and Thomson Reuters. An increasing number of Australian law journals are also available via HeinOnline . Some university law reviews are freely available through their respective web sites and some are also hosted on AustLII within the Australian Legal Scholarship Library, although current issues may not be available. A major advantage of viewing journals on this platform is the html versions enable hypertext linking to sections of judgments and legislation on the AustLII platform.
Another form of journal literature or current law current awareness may be accessed through the public websites of some of the major Australian law firms. These provide newsletters on aspects of the law, bulletins and articles on topical legal issues and are often a good source analysis on current legal matters. A web search engine, Fee Fie Foe Firm, has specifically been designed to focus on the websites of Australian law firms to trawl for such legal commentary or find referrals to experts on the law.
Many might consider Australia fortunate to have two legal encyclopedias. Not so, many Australian law librarians who feel the need to have both services in their libraries and must find the scarce funds to subscribe. That said, these are both magnificent works of legal scholarship, and a great boon to legal researchers. There is considerable overlap between the two encyclopedias and for the purposes of a foreign law library, subscription to one of them would be sufficient. Halsbury’s laws of Australia and The Laws of Australia published by rivals LexisNexis and Thomson Reuters, are both available in print and online. It is prudent however to note the date of currency when referring to any section of either of the legal encyclopaedias, as there is significant variation within both works between the currency of particular chapters. However, the reader may also update the primary law content of each chapter to some extent, by using the digest services offered on both the LexisNexis AU and Westlaw AU platforms, specifically Australian current law and the Australian legal monthly digest, respectively.
The Australian Law Reform Commission is the best known Australian law reform agency. The Commission has an extremely good web site, where it makes available the full text of all of its reports, discussion papers, etc. The Commission web site also has a ‘links’ page with what appears to be a comprehensive listing of other Australian law reform bodies and also a useful list of those from other jurisdictions. Both reports of the ALRC and all other law reform bodies in Australia, are available in full text in the Law Reform ‘Library’ on AustLII. For information about the older publications of the various Australasian law reform agencies see The law reform digest: a digest of the reports of the law reform agencies of Australia, New Zealand and Papua New Guinea 1910-1980, (Canberra: AGPS, 1983), and The law reform digest: a digest of the reports of the law reform agencies of Australia, New Zealand and Papua New Guinea 1980-1985, (Canberra: AGPS, 1985).
All Australian government departments and agencies maintain web sites. Typically these make available the text of reports, issues papers, media releases and general information about the particular department and its activities. Links to all Australian government entities can be readily located through the Australian Government Information web site or that of the Commonwealth Government.
There are several Australian dictionaries of legal words and phrases. See, e.g. Butterworths concise Australian legal dictionary, 4th ed., Chatswood, N.S.W.: LexisNexis, 2010. An increasingly popular online legal dictionary, the Encyclopaedic Australian legal dictionary, is available on the LexisNexis platforms. Australian legal words and phrases, also a LexisNexis publication, is available in print and online, and lists words and phrases culled from Australian legislation, providing the reference to the legislative provisions which define their meaning.
Legal Research Guides
There are a number of highly respected guides to Australian legal research. They include:
S.Milne & K.Tucker, A practical guide to legal research, 2nd ed., Pyrmont, NSW: Lawbook, 2010.
E.Campbell, Lee Poh-York, J.Tooher, Legal research, materials and methods, Sydney: Lawbook, 1996.
C. Cook et al., Laying down the law, 8th ed, Sydney: LexisNexis Butterworths, 2012.
B.Bott, R.Talbot-Stokes, Nemes & Coss Effective legal research, 4th ed., Sydney: Butterworths, 2009.
R.Watt, Concise legal research, 6th ed., Sydney: Federation Press, 2009.
The major Australian legal publishers:
Thomson Reuters (formerly Law Book Company, LBC and Lawbook Co.)
LexisNexis (formerly Butterworths)
Note: the reader may encounter a degree of confusion over the names of some of the major Australian law publishers. Historically the two main publishers have been the Law Book Company and Butterworths. Law Book changed its name to LBC Information Services and then back to Lawbook. It is now owned by the Thomson Reuters group and increasingly books are being published under Thomson Reuters branding. Butterworths is now owned by the Reed Group which also owns LexisNexis. The name LexisNexis Butterworths was used for a time but now seems to have given way to LexisNexis, and the local name for the new LexisNexis global platform is LexisNexis Australia. The authors do not doubt that there will be further changes still.
There are a number of sources that can be monitored for current awareness purposes. The major Australian legal publishers, LexisNexis, Thomson Reuters and CCH all make freely available legal news updates from their websites.
As noted above, two of the major publishers have long provided commercial commentary services for case law and legislation. Australian current law (LexisNexis) and the Australian legal monthly digest (Thomson Reuters) are available in print and online via the publishers’ online services.
Many Australian newspapers may be searched through NEXIS and some may also now be found in the Australian library on Westlaw. All of them maintain web sites where the current day’s major stories may be found. The principal newspapers include:
The Australian Financial Review
The Australian Broadcasting Commission (ABC) broadcasts a weekly radio programme, “the Law Report”, where topical issues are discussed. Transcripts of the broadcasts can be found on the ABC web site.
The Australian Law Librarians’ Association provides the principal discussion list for Australian law librarians. Information about subscribing to the list is available at that organization’s web site.
Following is a listing of some of the major texts on the principal legal topic areas (except for constitutional law which was noted above). This is a very limited selection from a wide field, in most cases consisting of the author’s favourites. Loose-leaf services have mostly not been included, as being less likely to be purchased by non-Australian libraries. The catalogues of all Australian law book publishers are online (links above), as are the catalogues of all university law libraries. Recommendations for further inclusion in this list are welcomed.
M, Aronson, B. Dyer and M. Groves, Judicial review of administrative action, 5th ed., Thomson Reuters, 2013.
L. McDonald & P. Cane , Principles of administrative law: legal regulation of governance, 2nd ed., South Melbourne: OUP, 2012.
R. Creyke & J. McMillan, Control of government action: text, cases and commentary, 3rd ed., Sydney: LexisNexis Butterworths, 2012.
R, Douglas, Douglas and Jones’ Administrative law, 6th ed, Sydney: Federation Press, 2008.
M. Groves and H.P. Lee (Eds.), Australian administrative law: fundamentals, principles and doctrines, Melbourne: Cambridge University Press, 2007.
S. McCracken & A. Everett, Everett and McCracken’s banking and financial institutions law, 8th ed., Lawbook, 2013.
A.Tyree Banking law in Australia, 6th ed., Chatswood, NSW: LexisNexis, 2008.
M. Keay, Insolvency: personal and corporate law and practice, 6th ed., Pyrmont, N.S.W.: Lawbook, 2008.
R. Gamble, J. Du Plessis, & L. Neal, Principles of business law, Pyrmont, NSW: Lawbook Company, 2008.
A. Gibson and D. Fraser, Business law, 6th ed., Pearson Australia, 2012.
N. James, Business law, 2nd ed., Wiley, 2012.
C. Turner, Australian commercial law, 29th ed., Sydney: Lawbook, 2013.
Conflicts of Laws
P. Nygh, M.Davies, A. Bell, P. Brereton, Conflict of laws in Australia, 8th ed., Sydney: Butterworths, 2010.
J. Carter, E. Peden & G. Tolhurst, Contract law in Australia, 5th ed., Chatswood, N.S.W.: LexisNexis Butterworths, 2007.
J. Paterson, A. Robertson & A. Duke, Contract cases and materials, 12th ed., Sydney: Lawbook Company, 2012.
L. Willmott, S. Christensen, D. Butler & B. Dixon, Contract law in Australia, 3rd ed., Melbourne, OUP: 2008.
R. Austin and I. Ramsay, Ford’s principles of corporations law, 15th ed., Sydney: LexisNexis Butterworths, 2013.
E. Boros and J. Duns, Corporate law, 2nd ed, Melbourne: OUP, 2010.
P. Redmond, Companies and securities law: commentary and materials, 5th ed., Sydney: Lawbook Co, 2009.
S. Bronitt, B. McSherry, Principles of criminal law, 3rd ed., Pyrmont, N.S.W.: Thomson Reuters, 2010.
P. Fairall and S. Yeo, Criminal defences in Australia, 4th ed., Sydney: LexisNexis Butterworths, 2005.
S. Odgers, Principles of federal criminal law, 2nd ed., Sydney: Lawbook Company, 2010.
G. Bates, Environmental law in Australia, 8th ed., Sydney: Lexis Nexis, 2013.
G. Dal Pont, D. Chalmers & J. Maxton, Equity and trusts: commentary and materials, 5th ed., Sydney: Lawbook Company, 2011.
S. Hepburn, Principles of equity and trusts, 4th ed., Federation Press 2009.
M. Leeming & J.D. Heydon, Cases and materials on equity and trusts, 8th ed., Sydney: LexisNexis Butterworths, 2011.
R. Meagher, W. Gummow & J. Lehane, Equity: doctrines and remedies, 4th ed., Sydney: LexisNexis, 2002.
P. Radan & C. Stewart, Principles of Australian equity and trusts, 2nd ed., Sydney: LexisNexis Butterworths, 2013.
K. Arenson & M. Bagaric, Rules of evidence in Australia: text and cases, 2nd ed., Sydney: Lexis-Nexis, 2007.
J. Heydon, Cross on evidence, 9th Australian ed., Chatswood, N.S.W.: LexisNexis, 2013.
I. Freckelton and H. Selby, Expert evidence: law, practice, procedure and advocacy, 5th ed, Sydney: Lawbook Company, 2013.
B. Fehlberg and J. Behrens, Australian family law in the contemporary context, Melbourne: OUP, 2008.
P. Parkinson, Australian family law in context: commentary and materials, 5th ed., Sydney: Thomson Reuters, 2012.
L. Young, Family law in Australia, 8th ed., Chatswood,NSW: LexisNexis, 2013.
Inheritance and Succession
R. Atherton and P.Vines, Succession: families, property and death: text and cases, 4th ed., Sydney: LexisNexis Butterworths, 2013.
K. Mackie, Principles of Australian succession law, 2nd ed., Sydney: LexisNexis Butterworths, 2013.
G. Pynt, Australian insurance law: a first reference, 2nd ed, Sydney: Lexis Nexis Butterworths, 2011.
M. Davison, A. Monotti & L. Wiseman, Australian intellectual property law, 2nd ed., Melbourne: Cambridge University Press, 2012.
S. Ricketson, Richardson and Davison, Intellectual property, cases, materials and commentary, 5th ed., Sydney: Lexis Nexis Butterworths, 2013.
S. Ricketson, The law of intellectual property : copyright, designs & confidential information, 2nd ed., Sydney: Lawbook, 2012. (loose-leaf)
J. McKeough, K. Bowrey & P. Griffith, Intellectual property: commentary and materials., 5th ed., Sydney: Thompson Lawbook Company, 2011.
Stewart, A Griffith, P; Bannister, J; Liberman, A. Intellectual property in Australia, 5th ed., Sydney: LexisNexis Butterworths, 2014.International Commercial Arbitration
R. Rana & M. Sanson, International commercial arbitration, Sydney: Lawbook Company, 2011.
B. Creighton & A. Stewart, Labour law, 5th ed., Federation Press, 2010.
R. Owens and J.Riley, The law of work, 2nd ed., South Melbourne: OUP, 2011.
R. Bartlett, Native title in Australia, 2nd ed., Sydney: LexisNexis Butterworths, 2004.
B. Edgeworth, et al., Sackville and Neave Australian property law: cases and materials, 9th ed., Sydney: LexisNexis Butterworths, 2013.
R. Chambers, An introduction to property law in Australia, 3rd ed., Sydney: Lawbook Co, 2013.
Public International Law
S. Blay, R. Piotrowicz & M. Tsamenyi (Eds.), Public international law: an Australian perspective, 2nd ed., South Melbourne: OUP, 2005.
D.R. Rothwell et al, International law cases and materials with an Australian perspective,Cambridge: Cambridge University Press, 2011.
Real Property Law
P.Butt, Land law, 6th ed., Pyrmont, N.S.W.: Lawbook Co., 2009.
B. Edgeworth, C. Rossiter, M. Stone, P. O’Connor, Sackville and Neave Australian property law, 9th ed., Sydney: LexisNexis Butterworths, 2013.
R. Chambers, An introduction to property law in Australia, 3rd ed., Sydney: Thomson Law Book Co, 2013.
C. Coleman, R. Hanegbi & G. Hart, Principles of taxation law, Sydney: Thomson Reuters, 2010.
G. Pagone, Tax avoidance in Australia, Sydney: Federation Press, 2010.
R. Woellner et al., Australian taxation law 2013, 23rd ed., North Ryde, N.S.W.: CCH Australia, 2010.
A. Clarke, J. Devereux J & J. Werren. Torts, 2nd ed., LexisNexis Butterworths, 2010.
R. Balkin & J.Davis, The law of torts, 5th ed., Sydney: LexisNexis, 2013.
J. Davis, Connecting with tort law, Melbounre: OUP, 2012.
D. Mendelson, The new law of torts, 2nd ed., Melbourne: OUP, 2010.
a. The authors wish to thank Lisa Smith and Sarah Joseph of Monash University, and Colin Fong, University of New South Wales Faculty of Law, for their helpful comments and suggestions on earlier versions of this guide.
1 A fascinating and very thorough account of Australia’s external territories and their legislative history is contained in a report to a committee of the Australian Parliament: Islands in the sun: the legal regimes of Australia ‘s external territories and the Jervis Bay Territory. Australia. Parliament. House of Representatives Standing Committee on Legal and Constitutional Affairs, 1991. Maps showing the external territories are available from Geoscience Australia.
2 Mabo v Queensland [No.2] (1992) 175 CLR 1.
3 Australian Courts Act 1828, Imperial Act 9 George IV, c83.
4 The Federal Parliament disallowed a law of the NorthernTerritory that would have permitted euthanasia. See, e.g., G. Williams & M. Darke, “Euthanasia laws and the Australian Constitution” (1997) 20 University of New South Wales Law Journal, 647
5 Wurridjal v Commonwealth (2009) 237 CLR 309.
6 In Cole v Whitfield (1988) 165 CLR 360, the High Court, for the first time, approved a limited use of the Convention Debates.
7 See, e.g., L.Zines, “A judicially created Bill of Rights” (1994) 16 Sydney Law Review, 166.
8 For academic review of the Human Reports Consultation and the Human Rights Framework, see the Thematic Issue on The Future of Human Rights in Australia, 33(1) (2010) University of New South Wales Law Journal.
9 A technical explanation of the bill prepared by the office of parliamentary counsel, the office responsible for drafting legislation.
10 Not all Acts become law. Policy may change before an Act comes into force or an election may bring a government of a different political persuasion to power, with a different agenda.
11 Viro v R . (1978) 141 CLR 88.
2013 Nicholas Pengelley and Sue Milne. Users may browse, download, print and link to this Guide for any non-commercial use or for educational use.