Finding the law

 

Contributor: Angus Frith

Finding the relevant source of law is paramount. Common law (judge-made law) may be found in law reports and legislation may be found in the statute books, each available online. Libraries and a host of current websites are available for finding the law.

Finding the relevant law is not easy, even for a lawyer, although the internet has made it easier. It is important to try to locate the most recent relevant law, as some areas of law change frequently.

In searching for a law, be aware that there are two types of law:

1 judge-made law (common law); and

2 parliament-made law (legislation).

What is judge-made law (common law)?

The phrases “judge-made law”, “case law”, “common law” and “precedent” have the same meaning. The body of decisions developed over hundreds of years by different judges is called the common law. It is basically the collected principles of law extracted from all the decisions handed down in the senior courts of England, Australia and other countries that share our type of legal system. These decisions are published in volumes of “law reports”.

What is parliament-made law (legislation)?

The phrases “parliament-made law”, “statute law”, “legislation” and “Acts” also have the same meaning. You can tell whether an Act was made by the Commonwealth Government, as a reference to a Commonwealth Act has “(Cth)” written after it. References to Victorian Acts have “(Vic)” written after them. Acts and delegated legislation, such as regulations made under legislation by government, are printed in statute books.

Finding and navigating Acts and other legislation

An Act has a name and a date; for example, Family Law Act 1975 (Cth). The name indicates the contents of the Act while the date specifies the year the Act was made in parliament (but not necessarily when it came into force; for this you might have to read the Act). Both pieces of information are needed to find an Act in a library, since Acts are organised alphabetically by year.

Navigating an Act is easier if it has a contents list (with sections, divisions and parts, each with its own title). There is usually a glossary (or a dictionary) at the front or back of each Act that explains what is meant by some of the words used in the Act; these definitions are crucial to understanding the Act. Sometimes, at the end of an Act there are schedules, which may contain tables, forms, court documents, or various other pieces of information relating to the operation of the Act.

Many Acts (and Regulations and Ordinances) have had changes made to them. The period within which changes (called amendments) have occurred will sometimes be indicated in the date in the Act’s title; for example, Family Law Act 1975–1977 (Cth). To find an up-to-date Act, Regulation or Ordinance you can search the parliamentary statute books for the various amendments, or a consolidated version of the Act, or use reprints. It is very important to make sure that the copy of an Act you are referring to is up-to-date.

Copies of any Act, Regulation or local law can be bought from government bookshops, or on the internet. Some websites that publish legislation require you to subscribe to the site in order to view the content. However, these subscriptions are expensive for the occasional user. Government sites may not be updated as quickly as subscription sites, but they are free and extremely useful for most purposes.

The following websites provide information and legislation:

The Australasian Legal Information Institute (AustLII): www.austlii.edu.au

This site provides free access to a broad range of legislation and cases from across Australia. It is an excellent starting point.

Commonwealth information: www.australia.gov.au

This site provides a great deal of interesting and useful information about government services and policies, not just legislation, and is a useful starting point for links to government agencies.

Commonwealth legislation and parliamentary documents: www.australia.gov.au/publications/commonwealth-legislation

This site provides access to current and historical Commonwealth Bills, Acts and Regulations.

Federal Legislation Register: www.legislation.gov.au

This site provides low- or no-cost access to the law (particularly legislation) for the community.

Victoria Online: www.vic.gov.au

This site provides information about local, state and federal governments.

Victorian legislation and parliamentary documents: www.legislation.vic.gov.au

This site provides access to current and historical Victorian Bills, Acts and Regulations.

Local councils:

Most councils have their own websites. To find your local council’s website, visit www.dtpli.vic.gov.au/local-government/find-your-local-council.

Australian Commonwealth Government: www.australia.gov.au/publications

This site provides access to a wide range of Australian Government publications.

Alternatively, if you wish to find an Act or other parliament-made law, visit one of the libraries listed under “Libraries”, below.

Also, the Law Library of Victoria has produced a video on how to find current legislation; to view, visit: https://lawlibrary.vic.gov.au/legal-research/videos.

Finding common law

Law reports contain the more important cases decided by the courts. There are many different law reports, each one reporting decisions of different courts in different states and countries. When a reported case is referred to in this book, a traditionally accepted shorthand reference is used (e.g. Commonwealth v Anderson (1960) 105 CLR 303; [1961] ALR 354). This shorthand reference tells us that:

the person commencing the action is the Commonwealth Government and the person defending the action is Anderson;

the decision was handed down in 1960;

this case was reported in volume 105 of the Commonwealth Law Reports (CLR) on page 303;

this case was also reported in the volume of the Australian Law Reports (ALR) for 1961 on page 354.

For each case, most law reports contain the names of the parties to the dispute, a summary of the facts involved, a summary of the court’s decisions (called the “headnote”), the judges’ word-for-word written judgments, and the order of the court.

If you are looking for cases on a particular topic (as opposed to a particular case) you can use the Australian Legal Monthly Digest or Australian Current Law (both are available online). These books are arranged under topics and list relevant cases and where to find them.

Most courts have websites, and you are often able to access recent decisions on these sites. Useful court websites include:

High Court of Australia: www.hcourt.gov.au;

Federal Court of Australia: www.fedcourt.gov.au;

Supreme Court of Victoria: www.supremecourt.vic.gov.au;

Family Court of Australia: www.familycourt.gov.au.

Online information

Many websites offer general and specific legal information, and new sites are being created all the time. However, as with any information found on the internet, you need to check that the site you are accessing is a reliable and authoritative source of legal information, and not just a forum for individuals to express their (perhaps inaccurate) views of the law.

To access a range of reliable, authoritative, plain-English publications on legal issues, visit Victoria Legal Aid’s website at www.legalaid.vic.gov.au.

Libraries

Local libraries do not have extensive law collections, although most municipal and shire libraries have basic law books. Some libraries have good inter-library loan arrangements that allow you to borrow books from other libraries. Local libraries also tend to respond well to demand, so they may purchase a book for you.

The specialist law libraries listed below may be used by the public. Apart from these, all law courts have basic collections that may be consulted, with permission from the court staff.

Victoria Legal Aid’s Public Law Library

Ground floor, 350 Queen Street, Melbourne Vic 3000

Tel: 9269 0232

Email: library@vla.vic.gov.au

Web: www.legalaid.vic.gov.au/about-us/our-law-library

State Library of Victoria

328 Swanston Street, Melbourne Vic 3000

Tel: 8664 7000

Web: www.slv.vic.gov.au

All libraries now offer internet access, and trained staff can assist even a novice to find almost anything online. Costs and charges vary from library to library, but it is astonishing what can be located for little or no cost. If you need help, it is best to make prior arrangements with library staff to ensure someone is available to assist you.

Contacts and resources