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legal databases
This page considers 'sources of the law', ie online and
offline collections of statutes and court reports.
It covers -
A
standard reference work for citations is Australian
Guide to Legal Citation 2 ed (Melbourne: Melbourne
Uni Law Review Association 2002).
statutes and delegated legislation
Statute law is law made by legislatures,
often characterised as 'Acts of Parliament'.
Specialists often differentiate between statutes or primary
legislation (the text of which has been directly considered
by the particular legislature and specifically approved
by that legislature) and 'secondary' or 'delegated' legislation.
Secondary legislation is an administrative convenience,
reliant for its authority on primary legislation. It may
comprise regulations, ordinances, rules, by-laws and orders-in-council.
Australian statutes typically comprise the following elements
-
- Short
Title of the Act
- Year
and Number of the Act (or Reprint No)
- Long
title
- Date
of Assent (or Reprint Date)
- Commencement
- Preamble
- Table
of Provisions
- Headings
of Chapters, Parts, Divisions and Subdivisions
- Sections
(and sub-sections and paragraphs)
- Marginal
Notes
- Schedules
- Legislative
History (identifying amendments)
Their
interpretation can often be assisted through scrutiny
of the associated Second Reading Speech (ie an explanation
made in Parliament and available in the Hansard)
and Explanatory Memorandum or Explanatory Statement for
the particular statute.
Statutes are typically cited using the short title (including
the year of enactment), the jurisdiction
(in brackets) and specific sections/subsections, eg -
Acts
Interpretation Act 1901 (Cth)
Sex Discrimination Act 1984 (Cth)
Privy Council (Limitation of Appeals) Act 1968
(Cth)
Crimes Act 1900 (NSW) s19A
Ex-Servicemen's Badges Act 1967 (Tas) s3
Statute
law in Australia is Crown
Copyright, with legislatures generally taking a relaxed
attitude to reproduction on a commercial or noncommercial
basis.
court reports
Court reports (aka case reports) are written records of
the decisions by the magistrate or judge/s in cases heard
by those courts. In essence a particular report provides
an indication of what decision was made (eg a defendant
was found guilty of a crime) and the basis for that decision
(eg the judge heard particular arguments, was presented
with particular evidence, applied relevant statute law
or relied on precedent in common law).
The decisions of all major courts and many minor courts
are published as collections that have an official or
quasi-official status (ie are relied on by lawyers and
by courts). That publication may be undertaken on a commercial
or not-for-profit basis, with the publisher 'adding value'
through inclusion of cross-references, summaries or keywords
(typically in the 'headnotes' at the beginning of the
reports), paragraph numbering and so forth.
It is important to recognise that not all decisions are
reported. A report does not provide a transcript of everything
that was said and all documentation that was submitted
by lawyers during the course of a trial.
A court report will typically provide the reader with
-
- standard
citation details, including the name of the court, the
year of the decision, the name of the parties
- place
and date of the hearing and judgment
- name
of the judge/s or magistrate
- catchwords
(aka keywords)
- a
concise prose summary in a headnote at the beginning
of the report
- names
of barristers representing the parties
- a
statement of the reasons for the court's decision
- citation
of statutes and cases relied upon by the court in making
its decision
- a
statement of any formal order by the court (eg that
specific damages and costs were awarded)
Major
collections for Australian law are -
- CLR
- Commonwealth Law Reports
- ALR
- Australian Law Reports
- A
Crim R - Australian Crim Reports
- FLC
- Australian Family Law Cases
- Fam
LR - Family Law Reports
- FCR
- Federal Court Reports
- FLR
- Federal Law Reports
- AILR
- Australian Industrial Law Reports
- ATC
- Australian Tax Cases
- NSWLR
- New South Wales Law Reports
- SR
(NSW) - NSW State Reports
- Qd
R - Queensland Law Reports
- SASR
- South Australian State Reports
- Tas
R - Tasmanian Reports
- VR
- Victorian Reports
- WAR
- Western Australian Reports
Court
reports were traditionally published in series of printed
volumes, typically in chrological order and with a volume
number. Most are now available online; major databases
are discussed below.
Individual cases may be reported in one or more reports.
They are typically cited using the -
- case
name
- year
- volume
- report
series (abbreviated)
- page
with
the case name comprising identification of the plaintiff/prosecutor,
a 'v' (read as 'and' in civil cases or 'against' in criminal
cases) and the defendant name, eg
Dietrich
v The Queen (1992) 177 CLR 292
James Hardie & Co Pty Ltd v Hall (1998)
43 NSWLR 544
Australian legal databases
For Australia a jump-off point is AustLII,
a national not-for-profit legal database covering legislation,
court and tribunal decisions and some journals.
Oz Netlaw,
"the internet legal practice of the Communications Law
Centre", is of lesser value.
overseas databases
AustLII spawned -
the
British & Irish Legal Information Institute (Bailii)
site, which now covers all primary legal material from
Britain and Ireland that is freely available to the
public (eg UK statutes from 1988 to 2001)
the Hong Kong Legal Information Institute (HKLII)
site, with Judgments (approximately 10,000 in full text)
from the Court of Final Appeal, Court of Appeal, Court
of First Instance, District Court, Family Court and
Lands Tribunal; Practice Directions; current Ordinances;
Domain name arbitration decisions by the Hong Kong International
Arbitration Centre and the Hong Kong Treaties Index.
For the US the WashLaw
Web and FeedLaw
are of particular value.
In September 2002 the New Zealand government belatedly
launched a legislation site.
statutory interpretation
Salient enactments regarding statutory interpretation
are -
- Acts
Interpretation Act 1901 (Cth) | here
- Legislation
Act 2001 (ACT) | here
-
Interpretation Act 1987 (NSW) | here
-
Interpretation Act (NT) | here
- Acts
Interpretation Act 1954 (Qld) | here
- Acts
Interpretation Act 1915 (SA) | here
- Acts
Interpretation Act 1931 (Tas) | here
-
Interpretation of Legislation Act 1984 (Vic) |
here
-
Interpretation Act 1984 (WA) | here
Major
works include Statutory Interpretation in Australia
(Chatswood: Butterworths 2001) by Dennis Pearce &
Robert Geddes, Legislation and statutory interpretation
(Chatswood: Butterworths 2008) by Kath Hall & Claire
Macken.
Among works on Explanatory Memoranda see ''Was there an
EM?': explanatory memoranda and explanatory statements
in the Commonwealth Parliament' (Canberra: Australian
Parliament 2005) by Patrick O'Neill, online here.
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