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An Introduction to Australian Legal Research
" A lawyer without books would be like a workman without tools. "Thomas Jefferson, Letter to Thomas Turpin, 5 Feb. 1769, in J P Boyd (ed) Papers of Thomas Jefferson, Princeton: Princeton University Press, 1950
It can be argued that no other discipline of students relies as heavily on library resources as law students. Law libraries are essential to the learning and the practice of law. Familiarisation with the law library and its resources is one of the first tasks a law student must undertake to maximise their learning experience.
During your first visit to the Law Library you may be overwhelmed, even intimidated, by the range and age of some of the volumes. Some material you will use may be one or two hundred years old, some may be one or two days old and all may be equally relevant. In fact, you will soon realise that the range of law material available to you is not limited to the traditional book format. The Library also holds a wide range of legal information in electronic format.
The aim of this guide is to provide first-time legal researchers with a basic introduction to the services and Australian legal resources of the University of Newcastle Law Library. It is by no means exhaustive.
Please ask the Law Library staff for further assistance.
INTRODUCTION TO LEGAL RESEARCH
"We have constantly inculcated the idea that the library is the proper workshop of professors and students alike; that it is to us all that the laboratories of the university are to the chemists and physicists, the museum of natural history to the zoologists, the botanical garden to the botanists." CC Langdell, The Harvard Law School (1887) 3 Law Quarterly Review 123.
Knowing where and how to locate the law, it can be argued, is just as important as a knowledge of the law. In fact, given the sheer volume of legal material, it is difficult for an individual to have a comprehensive knowledge of even a specialised aspect of the law. A problem further exacerbated by the dynamic nature of the law and the necessity for current information. Effective legal research enables a researcher to maintain a working knowledge of their specialised area of law and feel confident trailblazing into unknown areas.
Despite the various tools available to the legal researcher there is a common thread in the research process.
- Finding the relevant law
- Updating the information identified
- Reading and interpreting the information identified.
SOURCES OF LEGAL INFORMATION
" If it is law, it will be found in our books. If it is not to be found there, it is not law." Camden, LCJ, Case of Seizure of Papers (1765) 19 How. St. Tr. 1066.
It is generally recognised that legal information is divided into two types; primary and secondary sources. PRIMARY SOURCES - These materials consist of the authoritative texts of the law and include:
- Legislation - Acts or statutes made by a legislative body such as Parliament
- Subordinate Legislation - Rules, regulations & by-laws made by delegated authorities
- Law Reports - Reports of decisions or judgments of courts on points of law.
Identifying and interpreting primary sources of law is simplified with the use of…
SECONDARY SOURCES - these materials generally perform one of two functions:
- Aid in the IDENTIFICATION of relevant primary sources.
- Aid in the INTERPRETATION of relevant primary sources (commonly referred to as commentaries).
SECONDARY SOURCES
When commencing research on an unfamiliar topic it is almost always imperative to first consult a secondary source. A commentary in a textbook, journal article or loose leaf service may be the best starting point as they will give you an overview of the topic and provide references to the relevant primary material. Having identified the relevant primary authorities it is then crucial to update these authorities.
The major secondary sources include: library catalogues, journal articles, indexes, digests of law reports, legal encyclopedia, loose leaf services, monographs/textbooks, bibliographies & dictionaries. This guide will provide the researcher with information about the various tools which may be used to locate secondary source materials and identify relevant Australian primary materials
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Please Note - It is crucial that a recognised citation style is used consistently for all bibliographic material (articles, cases, statutes etc…). The School of Law requires work be cited using The Australian Guide to Legal Citation (AGLC2) published by Melbourne University. |
1) NEWCAT, the Library Catalogue
A useful starting point for research is to consult a textbook on your topic. The catalogue is the quickest and most foolproof method of identifying texts. NEWCAT lists all of the texts and journals held in its collections (including the law library). It DOES NOT index the contents of journals held by the library.
Identifying relevant material through Newcat is simple. The main access points are: Title (T) to search the exact title of a book; Author (A) if you know then author's surname; Journal (J) to search the exact journal title; Word (W) if you don't know the exact title; Subject (S) if you know the exact subject heading. A WORD OF WARNING. Subject searches use exact headings from the 3 volume Library of Congress Subject Headings (LCSH) thesaurus. Inexperienced users shouldn't rely on a subject search, although cross referencing has enhanced this option. E.g. a search for the subject "company law" refers us to: SEE Corporation Law.Locations - Newcat lists material in all the University of Newcastle Libraries. When an item is retrieved note its location, call number and status (whether the item is available for loan). Material housed in the Law Library is easily recognised by its K prefix. This prefixing system is unique to the Law Library as it is the only collection in the Library to use the Moys classification scheme.
2) Locating Journal Articles
Having identified and read a particular text on your topic it may be that the text is out of date or not sufficiently detailed. Journals are published on a regular basis, with each issue holding several articles, and are an excellent source of legal information.
Journal Indexes - Researchers may browse journal content pages, although many law journals cover unrelated aspects of law. Some deal with specific aspects of law but it's impossible for law libraries to subscribe to every title available. Academic law libraries will hold journals significant or "core" to the particular teachings of that institution. To overcome the difficulty of identifying relevant articles, publishers regularly issue journal indexes with access via subject and author. Journal indexes available electronically greatly enhance access by improving these search options, see Informit
Finding Articles in the Library - Having identified relevant articles it will be necessary to locate the journal. Please note - The Law Library does not subscribe to every journal referred to.
- Translate the abbreviation of the journal into the full title using an abbreviation list; these are in the Law Reference collection, listed in Common Legal Abbreviations or free on the web.
- Determine if the library holds the particular journal by performing a title search on Newcat. Note the call number, although law journals are basically arranged alphabetically by title.
- Locate the relevant volume and page number within the journal and read the article.
3) Legal Encyclopedias
These publications are organised by broad subject areas (titles) accessible via subject indexes, tables of cases and acts. Legal encyclopedias aim to systematically describe the legal doctrine of an entire jurisdiction, by providing a statement of the law and references to relevant primary materials. Legal encyclopedias are regularly updated and may be treated as an introductory text on a given legal topic.Halsbury's Laws of Australia (Online via LexisNexisAU) - first produced by Butterworths in 1991.
The print version consists of 90 titles in 28 comentary volumes, each with its own indexes, and companion volumes containing a table of cases, table of statutes and subject index.Laws of Australia (Online via LawBook or in print KH51) - first produced by the LBC in 1993.
The print version consists of 36 titles in 49 commentary volumes and companion volumes containing a table of cases, table of statutes and subject index.Halsbury's Laws of England (4th ed. KF85 H4 Digest) - contains information relevant to Australia, the printed version is available as part of the Digest collection in the centre of the Law Reading Room.
American Jurisprudence 2d (KG382 AMER Digest) - State & Federal laws alphabetically arranged by titles. Some lateral, or American, thinking is necessary with significant differences in legal language. The printed version is available as part of the Digest collection in the centre of the Law Reading Room.
4) Looseleaf Services
These publications may be considered "hybrid" because they are (in many cases) a combination of secondary and primary source materials. The main advantage of these publications is that they are kept current with the removal of old and the insertion of new pages to reflect changes in the law. Their greatest disadvantage is their cost and the ease with which pages may go missing or be misfiled. The major looseleaf services are kept in Law Reserve. To determine whether or not a service is available that deals with your topic there are three methods:
1. Browse Law Reserve shelves. Not recommended, the title may not be a good indicator and many looseleafs are now online so they won't be physically represented.
2. Search the Newcat catalogue, a complete list of the Library's looseleafs is under the Short Loans heading "Looseleaf Services".
3. Consult a looseleaf guide or index, our online resources guide is at the Biomedicine & Law Desk.
Despite their differences most loose leaf publications are similar in the way they are utilised. Access is usually available via a subject index and tables of case names and legislation, these will refer the user to a paragraph number. The paragraph will be relatively up-to-date, however always check the new developments section for references to the most recent information.
5) Dictionaries
Legal dictionaries may be a traditional reference tool, providing the meaning of a word e.g.
Black's Law Dictionary, 8th ed, USA : West Publishing Co. 2004 (RK127 BLAC 2004).
CCH Macquarie Dictionary of Law, NSW: CCH Australia, 1996 (RK127 CCH 1996).
Osbourne's Concise Law Dictionary, 10th ed., London: Sweet & Maxwell, 2005 (K127 OSBO 2005)Alternatively, the dictionary may be of a type that provides extracts of interpretations of legal words and phrases within the law or simply directs the researcher to judicial and/or statutory definitions.
Australian Legal Words & Phrases (3 vols), Sydney : Butterworths, 1993- (RK124.K1 AUST)
Stroud's Judicial Dictionary of Words & Phrases (3 vols), 7th ed, London: Sweet & Maxwell, 2006 (RKL41.A1 STRO 2006)
Words and Phrases Legally Defined, 3rd ed., London: Butterworths, 1988 (RK124 WORD 1988).
PRIMARY SOURCES
" It is safest to keep to the Statute. " Lord Mansfield, Rex v Inhabitants of Hatfield (1758) 1 Burr. Part IV. 497.
Legislation is generally of two types; Acts (Statutes) OR Delegated (Subordinate) legislation including Rules, Regulations, By-Laws etc.
Most Acts of Parliament implement government policy. A great deal of legislation passed by Parliament is in the form of amendments to existing acts. These amendments arise from a necessity to correct flawed or ambiguous legislation, or in response to court decisions, or as a result of change in government policy or simply because an Act needs to be updated. Regardless of whether an Act is introduced to cover a completely new area (Principal Act) or to amend an existing Act (amending Act or amendment), its introduction and passage through the parliamentary process will be the same.
Reprints- From time to time the various government printers reprint an Act. This generally happens after an Act has been amended a number of times. The reprinted Act incorporates the text of all the amendments into the Act and is therefore easier to use.
Bills- When a proposal for a new law or an amendment is introduced into parliament it is known as a bill. The Law Library hold for NSW (KH62.4 NEW) and Commonwealth (KH12 AUST) bills. Most bills have an atttached explanatory memorandum outlining the purpose of the bill, these are crucial to the understanding of legislation.
Royal Assent - After passing through Parliament, the bill goes to the Governor General who signifies assent. It then becomes an Act of Parliament. In rare cases the Governor General may under s58 of the Constitution return the bill recommending amendments. The date of Royal Assent is not necessarily the date of commencement.
Commencement - A new Act commences (becomes operative/in force) on a day prescribed by the act, or the 28th day following assent (Acts Interpretation Act), or on a date to be fixed by proclamation which is usually within six months of the date of assent.
Hansard (Parliamentary Debates) - These record a bill's progress and debate on it. They are held in the Auchmuty Library S328.944005/1 (NSW) and S328.94005/3 (Cwlth). Hansards are arranged chronologically so it's easier if you know the date of the Minister's 2nd reading speech, when the principal debate takes place. This date is recorded at the end of each act after 1985 (Commonwealth) and 1988 (NSW).
Reprinted Acts - When researching the text of an Act it is imperative that the latest reprint version is consulted. Current reprints are kept at the Biomedicine & Law Desk.
To ask for a recent reprint you need to know the jurisdiction and the short title.Researching Legislation - the 3 step approach
Step 1) Identify Relevant Legislation - Legislation may be identified through secondary and primary sources materials (online or in print). Wicks subject indexes are compiled annually for Commonwealth and NSW legislation,
Step 2) Find the Legislation in the Law Library - Acts passed by Parliament are assigned a number. All sessional legislation is arranged by this number within the year it was passed, eg. the Witness Protection Act is no 124 of 1994. Annual volumes of Acts provide indexes that enable you to establish the Act's number, volumes are held on the open shelves at the following call numbers:
Step 3) Update the Legislation - To ensure you have the most up-to-date version of an Act, obtain the latest reprint of the Act from the Biomedicine & Law Desk or find the principal act on the shelves. Check the latest amendment incorporated in the reprint and use a legislation updating tool to find out how the Act has been amended after that date.
- Statutes Annotations are now online via LexisNexisAU provide information about the latest reprints, or if no reprint exists, the principal Act.
Provides: Reprint date, Assent/Commencement dates, Amending Acts, Amended sections, Judicial consideration of the Act, Articles about the Act, Subordinate Legislation.- LawOne, online via TimeBase, provides the most up-to-date information on Acts. Provides: Full-text consolidated Acts, Reprint date, Assent/Commencement dates, Amending Acts, Amended sections, Full-text subordinate legislation, Repealed Acts.
"It is the judges who are the guardians of justice in this land" Lord Denning M, Re Grosvenor Hotel, London, [1965] 1 Ch 1210 at 1246.
Written judgments of courts on points of law, published for use as precedents. This body of decisions is known as "the common law". The principles of the Doctrine of Precedent were created in the mid 1800's when the Council of Law Reporting was established to ensure reports were verified by the judges who presided over the cases, thus ensuring a greater degree of accuracy and consistency.
Early reports - Early reports of English cases were published in Yearbooks and Nominate Reports. The yearbooks were republished by the Selden Society. Nominate reports were produced under the name of the individual reporting the cases, wall charts in the library cross reference the old nominate reports to reproductions in the English Reports (KF53 ENGL).
Modern Reports - Reported cases (1865+) are relatively easy to locate, although only a very small proportion of cases from higher courts are reported. It is generally the editor of a series of reports who determines whether a case will be reported or not, this only occurs if the case raises significant points of law and are thought to be valuable as precedents.
Authorised Reports - A report is authorised if, before publication, it has been checked by the judge. The disadvantage of authorised reports is that they take up to a year to be published. To compensate for this time lag other series of reports are published to provide quick access to decisions that aren't available in authorised format yet. It's essential to cite the authorised version of a case when available
Australian Authorised Report Series:
- Commonwealth Law Reports (CLR) High Court (KH41 COMM or via LawBook)
- Federal Court Reports (FCR) Federal Court (KH41 FEDE-1 or via LawBook)
- NSW Law Reports (NSWLR) Supreme Court of NSW (KH75 NEW-8 or via LawBook)
- Victorian Reports (VR) Supreme Court of Victoria (KH155 VICT-6 or via LexisNexisAU)
- South Australian State Reports (SASR) Supreme Court of SA (KH115 SOUT-3 or via LawBook)
- Queensland Reports (Qd R) Queensland Supreme Court (KH95 QUEE-4)
- Western Australian Reports (WAR) Supreme Court of WA (KH175 WEST-2)
- State Reports (Western Australia) (SR (WA)) Family and District Courts (KH175 STAT)
- Tasmanian Reports (Tas R) Supreme Court of Tasmania (KH135 TASM-4)
- Northern Territory Law Reports (NTLR) Supreme Court of NT (KH195.2 SUPR or via LawBook)
- ACT Reports (ACTR) Supreme Court of ACT (online via LexisNexisAU)
Case Citations - Understanding the components of a case citation is crucial to locating the law report.
The components are as follows in the example of: Bropho v Western Australia (1990) 171 CLR 1
Bropho Plaintiff Western Australia Defendant (1990) Year of decision 171 Volume of law report CLR Abbreviation of series of law reports 1 First page where the case is reported. Locating Law Reports - To locate a law report, you must first determine what the abbreviation represents and find the call number (see Common Legal Abbreviations). Comprehensive legal abbreviations indexes are held in the Law Reference collection, or you can use the various free web-based legal abbreviations indexes. Locate call numbers for the Law Reports by searching their full titles on NEWCAT.
FOUR COMMON CASE LAW RESEARCH TASKS
1) Finding Australian Case Citations From time to time you will be required to find the citation to a law report. It may be the citation you've been given is incorrect or incomplete or that you only have the names of the parties and need to find out if the case has been reported. Although several resources may help (eg. texts, articles, looseleafs, encylopedias, digests) the quickest method is to use a citator. The Australian Case Citator (KH51 A9 Digest or online via FirstPoint) lists reported cases from 1825 to the present. Here you'll find case citations, alternate citations, references to subsequent consideration of the case and case notes written about the case.
2) Updating Australian Cases - The process of updating a case involves checking where and how the case in question has been judicially considered. The case may have been applied, considered, followed, overruled, referred to, reversed or several other possibilities. Click here for explanations of these terms. To update a case with the Australian Case Citator check every relevant volume i.e.- for a case reported in 1982 check all volumes from that date to the present and/or search for it on FirstPoint
3) Finding Case Notes and Articles - Apart from hard copy and electronic journal indexes available through databases such as Informit , articles may be found using the online case citator Casebase.
4) Finding Australian cases by subject - Texts, journal articles and legal encyclopedias provide citations to principal authorities on a particular topic. Looseleafs do likewise and may even reproduce the full-text of the case. However, for a more comprehensive treatment of case law it's necessary to consult an case digest
DEFINITION: A Digest is a collection of summaries of cases (digests), from a particular jurisdiction, arranged systematically under broad subject headings (titles).
The Australian Digest (KH51 A2 Digest, now available online through FirstPoint) summarises, under headings (or titles) familiar to legal researchers, important case law taken from all major Australian law report series. It is a comprehensive service, covering all Australian law reporting back to 1825
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