Louise Tsang’s updated guide focuses on important information print and electronic sources specific to the protection of cultural property in wartime, international trade in cultural property, and the laws applicable to the illicit traffic of art and antiquities.
This guide by Assoc. Prof. Vedat Buz and Cagdas Evrim Ergün examines and documents doctrine and case law on the authority of the administrative court in rendering decisions on the validity of private law contracts.
Beth Wellington’s commentary takes an in-depth look at the divergent positions and issues associated with FOIA and biodefense related appropriations and legislation, from the perspective of legislators, public interest groups and journalists.
Michael Ravnitzky pulls back the curtain on a little known but extensive (his findings date back to 1915) and continuously updated source of topical comparative and international law reports, on subjects of public interest, produced each year by experts within the Library of Congress.
Foreign and Transnational Legal Forms
By Mary Rumsey
Mary Rumsey is the Foreign, Comparative & International Librarian at the University of Minnesota Law Library. Mary is also contributing author to the Electronic Information System for International Law (EISIL). She has a B.A. degree from the University of Wisconsin, a J.D. from the University of Chicago Law School, and a master’s degree in library and information science from Dominican University.
Update to Researching Australian Law
Nick Pengelley is Chief Law Librarian at Osgoode Hall Law School. Nick has over 20 years experience as a law librarian. He was formerly the Law Library Director at Queen’s University; Specialist Librarian for the Centre for Innovation Law and Policy at the University of Toronto; Law Librarian of Monash University Law Library, one of Australia’s largest law libraries; worked at the High Court of Australia, the South Australian Legal Services Commission and was Director of the Australian Taxation Office Information Services Network. Nick was the convenor of the Australian and New Zealand university law librarians group from 1993 to 1999 and was local convenor of the IALL conference held in Melbourne in September 1999. Nick was joint Australian Law Librarian of the Year in 1997 and has published widely in law and law librarianship.
Published August 21, 2001; updated January 2, 2003; updated April 28, 2005, updated May 17, 2006
Background Parliaments and Laws Finding Australian Legislation Courts and Judgments Finding Australian Cases Treaties Secondary Sources Journal Literature Legal Encyclopedias Law Reform Government Information Dictionaries Directories Legal Research Guides Publishers Current Awareness Discussion Lists Information Brokerage Major Texts
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 Territory1.
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 Mabo2. 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.
It is important to an understanding of the federal nature of Australia to know that each of the colonies had their own constitutions and had been enacting laws long before Federation. Under the Federal compact they had to give up certain rights and powers to the new 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). There is a good deal of potential for overlap in the state and federal jurisdictions but this is resolved by s.109 of the Constitution which provides that, in cases of conflict, where the Commonwealth enacts a law in an area covered by a state, that the state law is inoperative 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
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 the principal primary source for assistance in interpretation of the Constitution and determination of the founders’ intent. 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 Australian History on the Internet.
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 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 theory of implied rights under the Constitution, which, for a time at least, led some to believe that a bill of rights was unnecessary.5
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:
Australia follows the Westminster model of government. The Head of Government, the Prime Minister, is the leader of the political party which can command 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). A smaller party, the Australian Democrats, has sometimes held the balance of power. At the Federal level, the Liberal/National Party coalition, led by Prime Minister John Howard, was elected to power in 1996 (re-elected in 1998, 2001 and 2004). 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 majority of voters in a majority of the states to approve any amendment; very few have succeeded since Federation. 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. 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, in 1975, of the Government of Labour Prime Minister, Gough Whitlam. A good starting point for research on this still controversial topic is the web site, http://www.whitlamdismissal.com/.
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 Factbook entry for Australia. For an expanded overview and introduction to the Australian legal system, its history and development, see also:
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 Memorandum6. 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; it is thus 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 is increasingly being made available on the web sites of the various parliaments. That of the Commonwealth Parliament is quite comprehensive for the last decade. It is also extremely current; text is usually available within 24 hours. The Commonwealth Parliament maintains a list of other 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 or to be notified in a government gazette. If there is no information in the Act about commencement (stated in the first sections) then it automatically comes into force 28 days after the Royal Assent.7
These Acts, or session laws, are published initially in pamphlet form and then in bound volumes that collect together 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, also as pamphlets. Typically, these are filed alphabetically by law libraries in binders.
“Delegated” or “subordinate” legislation is often published under the authority of an Act. Subordinate legislation includes the statutory rules and regulations that provide the machinery to implement the policy dictated by an Act – forms and the like. They are tabled in parliament but are 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 the reprints are filed by law libraries in the same way as reprinted Acts.
Finding Australian Legislation
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 value-added collections – of which loose-leaf services are the usual example. There is at least one of these on most Australian legal topics. Typically they contain all of the relevant legislation, with commentary and case annotations.
In the past, an Australian law librarian would have typically started research on a given Act by going to the reprint collection in his or her library, noting the date of the reprint and then checking for further amendments since that date, however this has now largely given way to checking legislation via one of the government web sites or AustLII. There are two commercially published annotation services for Commonwealth legislation (Commonwealth Statutes & Annotations (Thomson) and Federal Statutes Annotations (LexisNexis). Each of the states has 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). Both are available in print and online.
No Australian legislation is currently available in LexisNexis or Westlaw. There is an Australian fee-based service, Lawlex, which provides legislation as well as numerous valuable research aids, however for the non-Australian researcher the simplest method to locate Australian legislation, unless your library has current reprinted legislation (not usually the case), or an up-dated print or e-based loose-leaf in the relevant area, is to visit the AustLII web site. AustLII now provides the full text of both sessional and reprinted legislation from all Australian jurisdictions. The Commonwealth Government’s own long-established law database, SCALEPlus, should also be checked (NB: SCALEPlus is being replaced by ComLaw). Although this service is the source for much of the Commonwealth material, as well as some Territory legislation, on AustLII, it may be more current in respect of those jurisdictions. The various Australian jurisdictions may be searched individually through AustLII, or in total. If a required Act or Regulation cannot be found on the AustLII site, check the web site of the relevant Parliament which may be more up-to-date for very recent legislation. A list of the various parliament web sites can be found at that of the Australian Parliament.
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 an ultimate court of appeal for Australia as it was, and 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 the 1980s. 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).
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 Council8), 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 increasingly 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. There are two other federal courts, the Federal Court and the Family Court. And 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, a web site maintained by the Australian Attorney-General’s Department. It provides descriptions of the various federal courts and tribunals and their jurisdictions. See also Australian Courts of Law by James Crawford and Brian Opeskin (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 library on LexisNexis and Westlaw and via two of the fee-based Australian online services – LexisNexis AU (formerly Butterworths Online and now the local manifestation of the new LexisNexis global platform) and Lawbook Online.
Most Australian jurisdictions have an official, or authorised, series of law reports. They are:
Most of these series are, or will be, available either through LexisNexis, Westlaw or Lawbook Online. In addition to the authorised report series, there are very many unauthorised series published by Thomson, LexisNexis or CCH. Some are general, some are subject-specific. Any family law-related decision, for instance, of the High Court, would be published in the Commonwealth Law Reports (the only authorised series for decisions of the High Court), the Australian Law Reports (LexisNexis), Australian Law Journal Reports (Thomson), Family Law Reports (LexisNexis) and Family Law Cases (CCH).
A special project run by Bruce Kercher of Macquarie University Law School deserves mention. This project is making available decisions of the superior courts of New South Wales and Tasmania from the 18th and 19th centuries that were hitherto only available in newspapers, housed in a very few libraries. 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.
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, starting with the full text of cases in 1947. Most others are of more recent origin. LexisNexis, Westlaw and Lawbook Online 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 found at the National Library of Australia web site.
If you do not have the citation, or require an alternate cite, use one of the two Australian case citators, Casebase (LexisNexis AU) or the Australian Case Citator (Thomson and via Lawbook Online). Other resources useful for this purpose include the Australian Digest (Thomson and via Lawbook Online), which, as the name implies, provides digests or summaries of cases, and includes citation details. The Australian Digest commences coverage in the early 19th century and is continually up-dated. You might also use one of the two legal encyclopedias, Halsbury’s Laws of Australia (LexisNexis, print, and online) or the Laws of Australia (Thomson, and via Lawbook Online). Failing access to any of these, a search of the case name in AustLII, LexisNexis or Westlaw might provide citation details from a reference in another case.
To find Australian cases generally on a topic, there are a variety of means, depending upon the resources at your disposal. A major recent text or loose-leaf service; one of the legal encyclopedias, or the Australian Digest. 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.
Australian treaties are negotiated and signed by the Commonwealth Government. 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, and hosted on AustLII.
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, AGIS (Attorney-General’s Information Service). AGIS (and now 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. This commercial service hosts a collection of other Australian journal indexes 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, the general public affairs literature index for Australia (which includes full text).
AGIS coverage commences in 1975. 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 publishers, LexisNexis and Westlaw. An increasing number of Australian law journals are also being made available via HeinOnline. Some university law reviews are freely available through their respective web sites. These can readily be located using a Web search engine or via Jurist Australia.
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, are both available in print and online.
The Australian Law Reform Commission is the best known Australian law reform agency. The Commission has an extremely good web site, where it is progressively making 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. 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, press 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 Federal Government.
There are several Australian dictionaries of legal words and phrases. See in particular Butterworths Australian Legal Dictionary (LexisNexis, 1997).
The principal directory of Australian lawyers is the Australian Legal Directory, published annually by the Law Council of Australia.
There are a number of highly respected guides to Australian legal research. They include:
The major Australian legal publishers:
Note: the reader may encounter some 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 and then back to Lawbook. It is now owned by the Thomson group and increasingly books are being published under Thomson branding although the locally developed online service is still called Lawbook Online and has not, as yet, been merged with Westlaw. 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 AU. The author does not doubt that there will be further changes still.
There are a number of sources that can be monitored for current awareness purposes. Most recommended is Jurist Australia. As well as daily updated legal news Jurist provides links to the latest decisions from the principal courts.
As noted above, two of the major publishers have long provided commercial updating services for case law and legislation. Australian Current Law (LexisNexis) and the Australian Legal Monthly Digest (Thomson) are available in print and online via their respective Web-based services.
A number of the major Australian newspapers may be searched through NEXIS. All of them maintain web sites where the current day’s major stories may be found. The principal newspapers include:
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 principal discussion list for Australian and New Zealand law librarians is [email protected]. Send the following message to [email protected]: subscribe anz-law-librarians-one
Information about the Australian Law Librarian’s Group is available through that organization’s web site.
MONINFO, based at Monash University, is a fee-based service that will provide copies of cases, legislation, journal articles or other material, drawing on the collection of one of Australia’s largest law libraries. MONINFO will also provide quotations for undertaking reference and research work.
Following is a short listing of 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 (details above), as are the catalogues of all university law libraries.
Administrative Law
Banking Law
Bankruptcy
Conflicts of Laws
Contract
Corporations
Criminal Law
Environmental Law
Equity
Evidence
Family Law
Inheritance and Succession
Intellectual Property
Labour Law
Native Title
Property Law
Public International Law
Real Property Law
Taxation
Torts
Footnotes
a. The author wishes to thank Lisa Smith, Monash University Law Librarian; Sue Milne, Law Librarian, University of Adelaide; Petal Kinder, Librarian, High Court of Australia and Sarah Joseph of Monash University Faculty of Law for their helpful comments and suggestions. <back to text>
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 Canberra: Parliament. House of Representatives Standing Committee on Legal and Constitutional Affairs, 1991. Maps showing the external territories are available from Geoscience Australia. <back to text>
2. Mabo v Queensland [No.2] (1992) 175 CLR 1 <back to text>
3. Australian Courts Act 1828, Imperial Act 9 George IV, c83. <back to text>
4. This happened recently. The Federal Parliament disallowed a law of the Northern Territory that would have permitted euthanasia. See, eg., G.Williams & M.Darke, “Euthanasia laws and the Australian Constitution” (1997) 20 University of New South Wales Law Journal, 647. <back to text>
5. See, eg., L.Zines, “A judicially created Bill of Rights” (1994) 16 Sydney Law Review, 166. <back to text>
6. A technical explanation of the bill prepared by the office of parliamentary counsel, the office responsible for drafting legislation. <back to text>
7. 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. <back to text>
8. Viro v R. (1978) 141 CLR 88 <back to text>
©2006 Nicholas Pengelley. Users may browse, download, print and link to this Guide for any non-commercial use or for educational use.
Review of Annotated Refugee Convention: Fifty Years of North American Jurisprudence
By Elisa Mason
The Federal Civil Code of Mexico by Jorge A. Vargas
Professor of Law
University of San Diego School of Law