UPDATE: 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 a Director, Research and Engagement at BarNet/JADE. She was formerly 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. During her lectureship in the Law Faculty at Monash University, she designed, implemented and taught legal research courses at undergraduate and graduate levels. Petal has written articles on legal research and also designed an interactive web based legal research program.

Published July/August 2018

(Previously updated in November/December 2010 and November/December 2014)

See the Archive Version!

1. Introduction

The Constitution 1901 of Australia 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.

2. Parliament of Australia

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 (for the history see Referendums and Plebiscites). 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.

3. The Executive Government

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.

4. The Judiciary

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.

5. Courts and Judgments

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 section 71 of the Constitution and the Judiciary Act 1903 (Cth).[1] The original jurisdiction of the High Court is derived from sections 75 and 76 of the Constitution; section 73 established its appellate jurisdiction. 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 of Australia, established by the Federal Court of Australia Act 1976 (Cth), the Family Court of Australia created by the Family Law Act 1975 (Cth) and the Federal Circuit Court (formerly the Federal Magistrates Court) by the Federal Circuit Court of Australia Legislation Amendment Act 2012 (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); the top level being the Supreme Court. For links to each of the official Court websites see: Courts-Attorney General’s Department.

The judgments of most of the Courts may be found on Court official websites, they may also be located on AustLII and BarNet/JADE. BarNet/JADE and AustLII also contain the Transcripts of High Court Cases and the High Court Bulletin (HCAB). The High Court Bulletin (HCAB) is compiled approximately once a month from February to December after each Court sitting. The HCAB includes Cases Handed down, Cases Reserved, Original Jurisdiction, Cases Granted Special Leave, and Cases Refused Special Leave, as at the date of each issue. Both websites provide a download and/or print option.

6. Australian Law Report Series

While judgments may be freely available on most Court websites and also on AustLII and BarNet/JADE 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 authorised Australian Law Report Series are:

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):

7. Locating Case Law

AustLII is a free source for access to full text Australian case law. It contains High Court reported judgments from 1903 -. 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 from 1994 -.

BarNet/JADE is another major free source. JADE (Judgment and Decisions Enhanced) is the legal research database component of BarNet and contains decisions of Australian Federal, State Courts and Tribunals, including High Court judgments since 1903 and Transcripts from 1994-. One of JADE's major innovations is CaseTrace, a system that operates at the paragraph level, pinpointing links from later decisions, which refer to particular paragraphs of the earlier decision.

There are two major fee-based sites for full text Australian case law – Thomson Reuters Legal Australia and LexisNexisAU.

Thomson Reuters Legal Australia 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

LexisNexisAU includes in its online databases the Australian Law Reports (ALR); Family Law Reports (FLR), State Report series for Northern Territory and the Australian Capital Territory and unreported judgments for High Court, Federal Court. The ALR are published 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”

For further historical resources see section titled Australian Legal Historical Documents.

8. History of a Case

There are two fee based electronic sources, Casebase via LexisNexisAU and FirstPoint via Thomson Reuters.

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.

A major free source for the history of a case is BarNet/JADE as mentioned above. One of JADE's major innovations is CaseTrace, a system that operates at the paragraph level, pinpointing links from later decisions, which refer to particular paragraphs of the earlier decision. This may be viewed throughout a individual judgments. JADE also has a separate Citator that allows you to search at paragraph or section level. You type in the name of a case or piece of legislation and JADE Citator Search will reveal how a particular passage has been used in judicial reasoning.

9. Australian Legislation

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.

10. Making of an Act of Parliament

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 is introduced in the originating House by the initiating Member. Examination of the bill then proceeds through Parliament in three stages.

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.

Commencement Date: 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.

Delegated Legislation: 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 which 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.

11. Locating Legislation

The full text of Australian Commonwealth legislation – Act and Legislative Intruments is available free on the Federal Register of Legislation (formerly ComLaw). The Register of Legislation is managed by the Office of Parliamentary Counsel.

While Commonwealth legislation is available on the Register of Legislation, 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 contender is LawNow available via LexisNexisAU. Currently, Commonwealth, ACT, New South Wales, Queensland and Victorian full text legislation is available, with links to South Australian, Western Australian, Northern Territory, and Tasmania legislation soon to be replaced with full text. This service provides weekly consolidations (minimum) and daily Bill reports including links to the Text of Bills, Explanatory Memoranda and Second Reading Speeches. It has commenced providing PDF versions of Commonwealth Reprinted Acts, currently available are the Reprints of the Corporations

Act, Income Tax Act 1936, Income Tax Act 1997, Trade Practices Act 1974 and the Copyright Act. Historical versions are also provided for all Acts and Subordinate Legislation (dating back a minimum of 5 years).

A source of valuable historical material for Queensland may be found on OzCase, which contains digitised copies of 12 historical New South Wales Lands Acts with application to Queensland, going back to 1833. These can be found in the Queensland Historical Legal Collection under the heading of "Applicable land legislation 1833 – 1910."

Also available on this site are:

12. Legislative History

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:

Where do you obtain these materials? Depending on the date, some may be available online for free.

13. Locating

13.1. Locating Second Reading Speeches/Hansard

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 Search site, which can be accessed directly from the front page of the Parliamentary site – it is 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. Parlinfo was replaced in September 2008 by Parlinfo Search, which has a new search engine and a “modern look and feel.”

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.

13.2. Bills and Explanatory Memoranda

To locate bills and Explanatory Memoranda (EM) you can do so from either the front page of the Parliamentary website or from ParlInfo Search. 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 Search.

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 Search. 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.

An excellent paper titled ”Was there an EM?’: Explanatory Memoranda and Explanatory Statements in the Commonwealth Parliament", details the history of EMs and also lists EMs from 1901 -1982

The Parliamentary Library publishes a listing of Bills Digests and Research Papers.

13.3. Committee Reports

The transcripts of Parliamentary Committee Reports which have considered bills, may be found online from1996 onwards from the Browse' section of ParlInfo Search.

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 the National Library of Australia - Trove - 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.

14. Australian Treaties

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 that 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’.

15. How to Cite Materials

The Australian Guide to Legal Citation (AGLC) 3rd ed 2010, is a uniform system of legal citation and “outlines established citation practices and indicates preferred approaches where no particular approach has been widely adopted."

16. Australian Legal Historical Documents

The Macquarie University in Sydney has site for Colonial Case Law including Decisions of the Superior Courts of New South Wales, 1788-1899; Decisions of the Nineteenth Century Tasmanian Superior Courts and Unreported Judicial Decisions of the Privy Council, on Appeal from the Australian Colonies before 1850 and Original Documents on Aborigines and Law, 1797-1840.

AustLII's Australasian Colonial Legal History Library aims to provide a comprehensive collection of Australian colonial case law.

The Australian Federation Full Text Database – Sydney University, contains digitised key texts that record the making of the Australian Commonwealth.

The Museum of Australian Democracy has a collection of sets of documents which tell the story of Australia's democracy.

Selected Opinions of Attorneys-General of the Commonwealth of Australia with Opinions of Solicitors-General and the Attorney-General's Department, 1901–45 is an online collection of past opinions of Commonwealth Attorneys-General, Solicitors-General and lawyers in the Attorney-General's Department. The opinions from the Attorney-General’s Department were provided as part of the advisings function now carried out primarily by the Australian Government Solicitor. The period covered is 1901 to 1945 – from Federation and the creation of the Commonwealth on 1 January 1901 to shortly after the Second World War in 1945. The opinions include significant advices signed by the Attorneys-General in this period, beginning with Alfred Deakin, the Commonwealth's first Attorney-General from 1901–03 (and second Prime Minister), and ending with Herbert Evatt, Attorney-General from 1941–49. Many of the opinions are signed by Robert Garran, the first Secretary of the Attorney-General’s Department (1901–32) and Commonwealth Solicitor-General (1916–32), and his successor George Knowles (1932–46), a range of other lawyers in the Department, and some prominent private counsel. Apart from their legal value and significance, they throw light on the development of the Australian nation over this period

17. Government Information

A 'one stop' shop for some major Australian government material may be found here. It links to free sites for legislation such as Federal Register of Legislation, 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.

18 Secondary Sources

18.1. Textbooks

The following is a list of highly regarded textbooks on Australian law compiled by lawyers attending a conference to commemorate the 80th publication year of the Australian Law Journal. The list was to be expanded and then finalised with an announcement of the top ten later in 2007, however, this is yet to be completed:

18.2. Legal Encyclopedias, Digest and Dictionaries

18.3. Journals

In 2011, the Australian Research Council (ARC) ceased the process of publishing a ranked list of journals. A brief overview of the origins of the journal ranking, including a breakdown of certain specialist law journal rankings may be viewed online: Specialist Law Journal Ranking, Part Three: Specialist Law Journal Ranking.

A free listing of journals and, where available, the full text of their articles may be found on the AustLII site together with Law Journals and Legal Scholarship associated with the Colonial Period.

The Australian Periodical Publications 1840-1845 component of the Australian Cooperative Digitisation Project (ACDP) provides web access to digital copies of Australian serials first published between 1840 and 1845. Currently there are 25 periodicals available on the site and additional titles are being added to the site progressively

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:

18.4. Newspapers

Some major Australian newspapers:

In August 2009 version 1.0 of the Australian Newspapers service was launched to the public. The National Library Trove provides access to over 13.5 million pages from over 700 Australian newspapers. Newly digitised articles are added daily. Digitised newspapers and more on Trove includes newspapers from each state and territory and from the earliest published newspaper in 1803, to the mid-20th century, including some community language newspapers. Many of these historical newspapers are a vital source of information for legal historians

19. E-Lists for Discussion

The Australian Law Librarians' Association (ALLA) website has contact details for Committee members and conference details of the Association’s conference. It also has an email list – ALLA-ANZ Mailing List which has instructions for subscribing and unsubscribing.

20. Blogs and News Websites

· Australian Policy Online: Policy Online is a research database and alert service providing free access to full text research reports and papers, statistics and other resources essential for public policy development and implementation in Australia and New Zealand.

· The Conversation: is an independent source of news and views, sourced from the academic and research community and delivered direct to the public

21. Australian University Law Schools

The Council of Australian Law Deans (CALD) website has guide which introduces you to Australia’s law schools, and gives you basic information about Australia’s legal system, living costs, and study choices.

22. Locating Holdings in Australian Libraries

The National Library Australia - Trove - 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.

[1] Cth is an abbreviation commonly used as part of citation of Australian laws. It stands for Commonwealth, indicating that law is valid and applicable in the entire Commonwealth of Australia.