In legal research, it is important to rely on primary sources of law, including case law. This guide describes where you can find case law. Internet sites that provide free access to existing legislation and case law have revolutionized the task of identifying primary sources of law. The most useful general Australian websites for legal research are: Are you looking for the «most important» case on a topic? Try secondary sources The laws in force in the ATT come from 2 main sources: laws enacted or approved by the Legislative Assembly (acts and instruments made under statutes) and court decisions (the common law). A third source is regulations issued from time to time by the Governor General under the Seat of Government (Administration) Act 1910 (Cwlth). Eventually, the ACT inherited a number of statutes (mainly New South Wales and the Commonwealth). The Commonwealth Constitution and various Commonwealth laws, regulations and instruments also apply in the ATT, but this website only deals with laws enacted under the authority of the Legislative Assembly under the Australian Capital Territory (Self-Government) Act 1988 (Cwlth) (the Home Rule Act). In addition to their direct effect as a source of rights and obligations, laws also permit the adoption of regulations and instruments of various kinds (e.g. the appointment of persons to positions or the fixing of fees). Since the Legislative Assembly does not necessarily have the time to deal with these issues, under our constitutional system, the government of the day deals with them through its branches and other agencies.
For this reason, laws enacted by the Legislative Assembly generally provide the power to enact ordinances and other instruments. In this way, the law on an issue can be divided into the law (which defines the main features of the proposal), regulations (which contain more detailed rules that may need to be amended quickly) and other instruments to work in certain situations. Because the power to make regulations is granted or delegated by the Legislative Assembly, they are sometimes delegated acts or «subordinate laws.» Although regulations are the most common type of subordinate statute, other types of judicial rules are. The ANU library provides access to a number of legal databases. The following list is very selective and covers only the most important sources of case law and legislation. For a more complete list of law-related databases, click here or visit the Jurisprudence, Journal Articles and Legislation tabs for more databases covering this type of information. However, to find a way through the maze of these primary sources, it is usually a good idea to start with a secondary source of law, i.e. a textbook that provides a guide to primary sources of law on a particular topic. In common law countries such as Australia, there are two main sources of law: case law and legislation. Case law is equally important in interpreting the law. For a law to be passed, it must be approved by a majority in both houses of parliament.
A bill may also be submitted to a parliamentary committee for further consideration before being put to a vote in Parliament. Another option is to search on one of the legal websites for the occurrence of a keyword or phrase in the area of law to be searched. Make sure the research covers both legislation and case law. Research is often difficult and time-consuming. The best resources are often websites that require a paid subscription, such as LexisNexis or Westlaw. However, Austlii offers a free service with laws, court decisions and some articles. Familiarity with Boolean search terms is also beneficial. The information can be retrieved by a simple Internet search for Boolean search terms. A person referring to secondary sources should be aware of three pitfalls: In the ACT legal system, the common law remains an important source of law.
The common law is derived from the decisions of judges (originally in England) over the past 800 years. At the time of the emergence of the common law as a source of law, parliamentary laws were unusual. Under the document system developed by the Crown and its officials, disputes could be referred to judges for resolution. These decisions have turned into a huge legal system. A precedent rule or principle has also been developed. This required that if a decision was made on the basis of certain facts and those facts were repeated, the same decision should apply. Precedents then led to the shaping of the common law into a coherent and more or less predictable set of rules on the basis of which commercial transactions could be concluded securely. Over time, however, the common law was perceived as too rigid and sometimes operated in a way that was not always fair. Eventually, a parallel set of laws emerged that formed the basis of the rules now known as rules or principles of justice. These complemented and corrected the operation of the common law. The common law is governed by statute.
In other words, if a court decision establishes a new common law rule or amends an old rule in a way that is considered undesirable, a statute may modify or abolish the common law rule. Since self-government, very few regulations have been published, which continue to be administered by the Commonwealth. Regulations are no longer an important source of law in the ATT. In a phased period after self-government, most of the regulations that were in place in the TERRITORY prior to self-government were converted into law.