A Guide to online research resources for the Australian Federal Legal System with some reference to the State Level
By Petal Kinder
Petal Kinder is Court Librarian at the High Court of Australia. Prior to her commencement at the High Court Petal was the Manager of the Library and Information Services at the Federal Court in Melbourne. Before that she lectured in the Law Faculty at Monash University where she designed, implemented and taught legal research courses at undergraduate and graduate levels for over five years. Petal has written articles on legal research and also designed an interactive web based legal research program.
Published August 2007
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Table of Contents
The Australian Constitution of 1901 established a federal system of government. Under this system, powers are distributed between the Commonwealth and the six States - New South Wales, South Australia, Tasmania, Queensland, Victoria and Western Australia. Three Territories - the Australian Capital Territory, the Northern Territory, and Norfolk Island have self-governing arrangements.
Three arms of government are established by the Constitution—the Legislative (Commonwealth Parliament), the Executive (the Ministry) and the Judicature (Judiciary, Courts). Unlike the United States where no member of the legislative, executive or judicial arms may simultaneously be a member of one of the other arms, in Australia, the Executive Government is drawn from the Legislature.
Australia is not yet a Republic; instead, the Commonwealth Parliament has as its head the Queen, represented by the Governor-General. A Referendum seeking to establish a Republic failed in 1999. For a proposal to succeed, it must be favoured by a majority of voters in a majority of the states, and by a majority of voters overall. Only eight out of forty-four proposals have been carried by referendum. Historical information is available online relating to the Australian Parliament. The Governor-General and the two Houses, the upper House or Senate and the lower House, the House of Representatives comprise the Commonwealth Parliament - known as a bicameral Parliament. Each State and Territory also has its own bicameral Parliament with the exception of Queensland which, in 1922, abolished the Upper House.
The Executive comprises the Prime Minister, as head of Government and the Cabinet - Senior Ministers selected by the Prime Minister. Senior Ministers administer the major Departments and may come from both Houses; however, it is usual for the majority to be members of the House of Representatives. All major policy and legislative proposals are decided by the Cabinet. The composition of the current and previous Cabinets is available online.
Chapter III of the Constitution begins with section 71, which provides that the judicial power of the Commonwealth shall be vested in a Federal supreme court, to be called the High Court of Australia, and in such other Federal courts as the Parliament creates, and in such other courts as it invests that Federal jurisdiction see, Gleeson CJ The Federal Judiciary in Australia.
Judges are appointed by the Governor- General acting on the advice of the Prime Minister and Cabinet. Judges can only be removed from office by the Governor-General following a request for the removal from both Houses of Parliament on the ground of proved misbehaviour or incapacity.
The Australian court system is hierarchical. There are two major types, the Federal courts and the courts at State level with the High Court sitting at the top of the hierarchy. The High Court was established in 1901 by s 71 of the Constitution and the Judiciary Act 1903 (Cth). The original jurisdiction of the High Court is derived from ss 75 and 76 of the Constitution, s 73 established its appellate jurisdiction. Legislation enacted between 1968, the Privy Council (Limitation of Appeals) Act 1968 (Cth) and the Privy Council (Appeals from the High Court) Act 1975 (Cth) abolished appeals to the Privy Council from the High Court. Appeals from State Supreme Courts to the Privy Council were later abolished by s 11 of the Australia Act 1986 (Cth) making the High Court the final court of appeal in Australia.
There are three major Federal Courts, the Federal Court, established by the Federal Court of Australia Act 1976 (Cth), the Family Court created by the Family Law Act 1975 (Cth) and the Federal Magistrates Court by the Federal Magistrates Act 1999 (Cth).
Within a majority of the States and Territories the courts are divided into three hierarchical levels, lower courts (Magistrates or Local Courts), intermediate courts (District or County Courts) with the top level being the Supreme Court. For links to each of the official Court websites see: Australian Institute of Judicial Administration links to Australian Courts.
The judgments of most of the Courts may be found on Court official websites, they may also be located on AustLII. AustLII also contains the Transcripts of High Court Cases.
While judgments may be freely available on most of the Court websites and also on AustLII it is still practice for cases from the authorised law reports series to be handed up in court. It is also still standard practice to cite an authorised report in preference to an unauthorised report in written publications.
The main unauthorised Australian Law Report Series are:
The main authorised Law Report Series for each State/Territory are:
The following two Territory Reports series are published at the end of the Australian Law Reports (ALR):
AustLII is a free source for access to full text Australian case law. It contains High Court reported judgments from 1903 and also the High Court transcripts commencing 1994-. All State Supreme Court decisions are also there, with links to each of the States Court sites. The AustLII documents are not available in true PDF format, and therefore cannot be handed up in Court. High Court of Australia Transcripts are also available on AustLII from 1 January 1995 onwards.
There are two major fee based sites for full text Australian caselaw - LexisNexisAU and Thomson LawBook Online.
LexisNexisAU has a number of Law report series including the Australian Law Reports (ALR); Family Law Reports (FLR), State Report series for Northern Territory, Australian Capital Territory and Victoria and unreported judgments for High Court, Federal Court and State Courts. The ALR are published electronically two weeks prior to the hard copy version.
Thomson Law Book Online also has a number of law report Series including the Australian Law Journal Reports (ALJR); Commonwealth Law Reports (CLR); Federal Law Reports (FLR); New South Wales District Court reports; New South Wales Law Reports (NSWLR) and South Australian State Reports (SASR) plus unreported judgments for the High Court, Federal Court, Family Court, State Courts and Tribunals and the Federal Magistrates Court. The CLR are available in true PDF format from Vol 209-, and the ALJR from Vol 79-. Both series are available electronically two weeks prior to the hard copy version
Two valuable historical databases are available on AustLII – the Superior Courts of New South Wales (pre-1900) Case Notes and Superior Courts of Tasmania (pre-1900) Case Notes. Bruce Kercher, Law Faculty of Macquarie University, commenced the NSW project in 1996. The Tasmanian project commenced in 2000, again by Bruce Kercher, this time in conjunction with Stefan Petrow of the University of Tasmania. Dr Petrow has written on the project and his paper is published in the Australian Law Librarian journal Vol 13, No 4, 2005.
According to Bruce Kercher, "many of these records are of great historical and legal importance, however, they are buried in manuscript collections and old newspapers, and are inaccessible to all but the most dedicated researchers”
Casebase is useful for locating journal articles; however, its primary function is that of a Case Citator. It provides prior and subsequent history, or the judicial consideration to more than 60 Australian and overseas report series, the unreported judgments of the High Court, Federal Court, the Supreme Courts of all Australian States and Territories, Family Court, NSW Land and Environment Court, Commonwealth Administrative Appeals Tribunal, Federal Magistrates Court, and other selected overseas jurisdictions. Case entries include parallel citations, a list of cases that have subsequently considered the case, CaseBase signals indicating the precedential value of subsequent judicial consideration, a list of cases considered in the case, judicially considered words and phrases, catchwords, digests and articles which have commented on the case. If you are an online subscriber, you can access the full text of the decisions or articles cited where available.
FirstPoint provides access to case references, history, catchwords and some digest information for Australian cases since 1825 sourced via the Australian Digest, Australian Legal Monthly Digest (ALMD) and the Australian Case Citator. Cases which have subsequently cited a case are listed, mention is made regarding refusal of Special Leave to Appeal in the High Court, cases cited in a judgment are listed together with legislation judicially considered and words and phrases judicially considered.
The legislative powers of the Commonwealth, States and Territories are set out in the Constitution. In s 51 of the Constitution the Commonwealth Parliament is invested with power to make laws with regard to tax; immigration; international and inter State trade; foreign affairs; defence; insurance; marriage and divorce; currency and weights and measures; post and telecommunications; and invalid and old age pensions. Exclusive powers to legislate reside with the Commonwealth as set out in ss 52 and 90 of the Constitution. The Australian States and Territories retain legislative powers in areas not listed under the above sections such as local government, roads, hospitals and schools.
The legislative powers of the Houses in the Commonwealth Parliament, the Senate and the House of Representatives, are set out in s 53 of the Constitution which states, "Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate". S 53 also states that the Senate may not amend certain money bills or bills imposing taxation. The Senate cannot amend bills "so as to increase any proposed charge or burden on the people", it may only send back bills to the House requesting for an amendment to be made.
Should there be conflict between a Commonwealth Act and State or Territory Act s 109 provides that the Commonwealth Act will prevail.
Generally a bill may be initiated in either House of the Parliament although in practice most bills originate in the lower House especially all financial bills. The bill drafted by the Office of Parliamentary Counsel and is introduced in the originating House by the initiating Member. Examination of the bill then proceeds through Parliament in three stages.
First Reading - permission is sought to introduce and proceed with the bill. Copies of the bill are circulated to members after the first reading together with copies of the Explanatory Memorandum which set out clause by clause the content and purpose of the bill.
Second Reading - this is the most important stage of the bill. The initiating Minister explains the purpose of the bill and the general principles. A date is set down for future debate on the bill allowing for reflection by Members and the public on the contents of the bill. At the conclusion of debate on the bill with regard to its principles a vote is taken and consideration of the bill, clause by clause, follows. Detailed debate on each clause and amendments to a clause/s may not be necessary in which case the bill then proceeds directly to a Third Reading stage. A motion is moved to pass the bill which then proceeds to the next House (except for Queensland which is not bicameral) where the three stages are repeated.
When both Houses have passed the bill it is presented to the Governor-General for assent at which point it becomes known as an Act of Parliament, and the previous clauses of the bill are known as sections of the Act.
It is important to note that an Act may not become operative on assent, or enactment, as a particular date for commencement may be specified in the Act. If no commencement date is specified in an Act, it comes into effect on the 28th day after it receives assent.
Another form of legislation (the generic term for Acts also known as statutes) is delegated legislation (also known as subordinate legislation).
Delegated legislation is made by bodies to whom Parliament has delegated some of its legislative powers. The power to make such legislation is prescribed in the principal or enabling Act. Delegated legislation is known by a number of names including, rules, regulations, ordinances and by-laws of local government.
The full text of Australian Commonwealth legislation is available free on ComLaw. Comlaw is owned by the Australian Attorney-General's Department and took over from SCALEplus in 2005. SCALEplus will continue to be available to users until all relevant material, including historical material, is migrated to ComLaw, however, it should be noted that ScalePlus has not been updated since January 2005. Historical Commonwealth legislation from 2005 - is located on ComLaw with earlier historical versions on SCALEplus.
While Commonwealth legislation is available on ComLaw I would suggest that a relatively inexpensive fee based system LawLex be used to search for legislation. Apart from handling risk and compliance management services LawLex also provides access to Commonwealth and State legislation. The legislation to which it links comes from the ComLaw database.
The main reason for using LawLex is that it acts as a very quick, simple and clean interface for locating legislation as opposed to trying to find your way around the ComLaw database. It also has the two added benefits, first it links to full text extrinsic material such as Second Reading speeches in Hansard and Explanatory Memoranda. Secondly, LawLex allows you to sign up to receive email alerts advising of amendments to, and commencement dates of, legislation.
Another fee based service for legislation is Capital Monitor owned by LexisNexis. Capital Monitor is a special news service from LexisNexis that is focused primarily on Australian Commonwealth government policy information and its development, but also covers State and Territory Parliaments, Governments, agencies, as well as the Courts.
In Australia s 15AB(2) of the Acts Interpretation Act 1901 sets out the various extrinsic aids which may assist with the legislative history of an Act some of which are:
· Parliamentary Debates on the bill - i.e. the Second Reading; Speeches in both the Senate and House of Representatives;
· The bill and all subsequent amendments to the bill;
· Explanatory Memorandum which accompanies the bill; and
· Committee Reports resulting from the debates in Parliament.
Where do you obtain these materials?
Depending on the date, some may be available online for free.
Debate on the bill is located in Hansard which is available free online from 1981 onwards, in full text, from the Australian Parliament website for both Houses. The PDF version of Hansard only goes back to 1996, however, if you click on the link to the HTML versions it will take you back to 1981. The HTML version is available on the Parlinfo site which can be accessed directly from the front page of the Parliamentary site – it’s a small button at the bottom of that page – which, if you click on, takes you to the front page of that site. The main 'aph' parliamentary databases website was developed in 1997, after which Parlinfo was implemented as an interface to search the parliamentary databases through the web.
To find the Second Reading Speech of a Bill in the print version of Parliamentary Debates, if not available online, you need to know the year in which the Bill was introduced to Parliament. Then simply go to the Index and look under 'Bills' for your title.
There is also material online which may assist in tracking old and current bills. A listing of bills for 1997 onwards is available from the 'Browse' section of ParlInfo
The final full text version, of bills no longer before Parliament from 1997 of old Bills are available for free from the 'Browse' section of ParlInfo.
Previous versions (if there were any) of the bill are not available from this site
If you click on the title of the Bill it may also link to the Explanatory Memorandum and the Second Reading Speeches of the Bill.
The transcripts of Parliamentary Committee Reports which have considered bills, may be found online from1996 onwards from the Browse' section of ParlInfo
A listing of Reports of Royal Commissions from 1902 onwards, some in full text, may be found on the Parliamentary website. The full text of reports and other publications are to be found on the Australian Law Reform Committee website together with links to State Law Reform Commissions. If the bill is very old then any Committee Reports attached to the bill will only be cited in Hansard in the Second Reading Speech, and/or listed next to the bill in the Index of Hansard. You will then need to find a library which holds a copy of the Report. The 'older' material is available mainly in print only. Some larger Universities keep this material, however, Parliamentary libraries, Federal and State should hold complete sets of bills, EM and Second Reading Speeches for the specific jurisdiction -they should also have copies of relevant Committee Reports.
To locate holdings in Australian libraries see Libraries Australia - an online search service, which enables you to search across the combined catalogues of Australian libraries - national, state, public, university, TAFE and government - with one search.
The Australian Treaties Library is prepared by the Department of Foreign Affairs and Trade and hosted on AustLII. Here you will find detailed information about the Australian treaty-making process, national interest analyses which gives reasons why Australia should become a party to a treaty, the text of multilateral and bilateral treaties, ratification, etc.
A detailed article is available online with the title "Trick or Treaty? Commonwealth Power to Make and Implement Treaties". It should be noted that if you search for the full text of the article on AustLII you will need to know that it has been indexed under the second part of its title, “Commonwealth Power to make etc “ and not the first words of its title ‘Trick of Treaty’.
A 'one stop' shop for some major Australian government material may be found at Publications.gov.au. It links to free sites for legislation such as ComLaw and Scaleplus, Parliamentary sources such as Bills, Hansard, Parliamentary Papers and Gazettes. Importantly, it has links to Government department homepages and also to Statistics available online from the Australian Bureau of Statistics, the Australian Institute of Criminology and many other Australian Government departments and agencies which publish statistical reports in their areas of expertise.
The following is a list of highly regarded text books on Australian law compiled by lawyers attending a conference to commemorate the 80th publication year of the Australian Law Journal. The list is to be expanded and then finalised with an announcement of the top ten later in 2007:
I would add to this list a few others:
A free listing of journals and, where available, the full text of their articles may be found on the AustLII site.
The fee based Australian service INFORMIT has a number of databases such as AGIS (Attorney General's Information Service), APAIS (Australian Public Affairs Information Service), Criminology, Family Law, Multicultural and Immigration studies etc relevant to law. Informit offers both a full text service and a separate abstract service.
Other fee based sources are:
Some major Australian newspapers:
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