Legal Research Rescue

Locating Australian Legislation – when current doesn't mean current!

January 12, 2009

It’s one of those afternoons – you’ve sent one of those dreaded “capacity emails” – not because you actually want to work, but because the blank timesheet staring back at you is making you start to hyperventilate. The only task you’ve received in return is one where you need to provide copies of legislation for a hearing tomorrow. Easy right? You’re sure the SA has only given this to you because she felt sorry for your desperate-billable-unit-plea and wants her secretary to pick up her dry cleaning instead anyway. Surely you didn’t go to law school to hit Control-P from an AustLII page…

Before you get in a huff about your lack of “quality work”, be warned that the reliance on out-of-date legislation, even if only out-of-date by a day, has been known to cause lost cases, failed negotiations and embarrassment for the lawyers involved. Hit Control+P from AustLII at your peril: you might not need need to worry about billable units for much longer. Goodbye grad offer.

Go straight to the source for Australian legislation

In practice, working with current legislation is essential. Clients don’t have questions about legislative provisions that have remained unchanged for years and can be safely reprinted in each edition of your textbook without amendment. They tend to work in areas of constant policy development and legal challenges – the stuff of legislative amendments. Before you rush this task so you can tag along to some schmoozy client lunch meeting, remember that the ability to find what the law is at any given time – with confidence - is what you’re here for. This article will help you get it right and get it done in time for the lunch.

A note about “current” Acts

The idea of a “current” compilation (or reprint – they’re the same thing for our purposes) of an Act can be misleading and is the reason I refer instead to “most recent” compilations in this article . The “current” compilation is only ever the most recent compilation of an Act that the government has produced. Each compilation is just that – a compilation of all the amendments made to a particular Act up to and including the date of the compilation. These are only produced periodically. This is extremely important to note because it means that a “current” compilation is not necessarily the current state of the legislation as at the particular moment in time during which you are viewing the legislation.

Lost? Try this example: You’ve located the Act you’re interested in. The most recent compilation is dated last month. However, legislation which amends the Act has come into force earlier this week. In this situation (which happens often!), the truly current state of the legislation is the most recent compilation + the amendments that have since come into force. So even though the “current” compilation doesn’t show these most recent amendments, those amendments do in fact reflect the true state of the law as at “today”.

Before you ask – no, there is nowhere on the internet (or in print) where you can you find what a piece of leg says as at this minute/date. Surprising, huh? Perhaps not once you consider the sheer amount of legislation passed each day, and each and every amendment to other legislation that new legislation could contain. Maybe one day they’ll write the macro… until then, the closest you can get is to locate the most recent compilation and then to check that no amendments have been made since that compilation.

Go straight to the source – use Government sites for locating legislation

Before we look at actually retrieving the Acts, it’s important to note that Government sites are the most official online source for legislation. It is from these Government sites that you will find the authoritative PDF versions of the Acts (if they exist) that Counsel and the judiciary often insist upon. No matter what you’ve been taught in law school, it is, without doubt, best practice to get the information straight from the legislature’s mouth.

AustLII, for example, is a database that draws its information from the Government sites and collates it into its own database. Now, I’m not an AustLII hater by any stretch (its case law resources are world class), but I offer this piece of advice from experience – AustLII’s legislative databases are not kept as up to date as they should be. The truth is, amendments will be noted and/or incorporated into legislation on Government sites before they will be on AustLII. The delay might only lag by a matter of days (it has run into weeks or months in some instances) but it is not worth the risk. AustLII’s one-stop-shop for all Australian jurisdictions can be tempting, particularly compared to the alternative of remembering which Government sites to use for each jurisdiction. However, there is a way around that problem – Lawlex(with which I have no affiliation).

Lawlexis as a portal which links out to the most authoritative Government site for any given piece of legislation, without the user having to remember which website should be used for each jurisdiction. The ability to search and link to legislation is a free service. There are other paid services within the Lawlex platform, but in this instance I am focussing on free resources to assist in finding Commonwealth legislation (to go through each jurisdiction would make this already long article unbearable).

Locating the most recent compilation of an Act

This part’s easy – simply enter the Act name into the Lawlex search screen, locate the Act you are after and click. A tip for new players – don’t bother with the “full text” search – I’ve found it to be a bit hit and miss. Leave it on the “Title” search. For the purposes of this article, we’re simply looking at locating legislation. I’ll write about conducting legislative research in another article. Once you’re on Lawlex’s page for the Act you’re after, click on the title of the act – it is a link to the most recent compilation of that act direct from the official government site.

Checking whether an Act has been amended since the last consolidation

If you have a subscription to Lawlex “Premium Research” you will have access to a table on Lawlex’s page for the Act which details all amendments made since last consolidation. simply click on “Check for amendments since last consolidation” and you’ve covered your bases! If you don’t have a subscription, you will be able to see the link to the table below the red ”Premium Research” bar, but you won’t be able to access it. However, as this is not a tutorial on how to use Lawlex, I’m going to outline the freely available government resources to use for finding the same information.

Most lawyers are aware of the “notes” section at the end of each Act which specifies amendments made to the act up to and including the date of the consolidation. What the notes section will not include is a list of amendments made to the act since that consolidation. For Commonwealth legislation, you will need to locate the Act on Comlaw. Once you are on Comlaw’s page for that act, and assuming there have been amendments made to the act since it was last reprints, there will be a section titled “Unincorporated Amendments”.

Comlaw

In the example above, there were two acts which had amended the Bankruptcy Act 1966 (Cth) since it’s last consolidation (at the time of writing). This means that there are at least 2 amendments (possibly more) that are not contained in the most recent reprint. To view the amending Acts, simply click on one of the Act titles (eg Family Law Amendment (De Facto Financial Matters and Other Measures) Act). To see a list of all amendments, including those that have not yet been incorporated into a reprint, click on the “Principal + Amts 1973+” tab.

Comlaw

You will need to view each of the amending acts and search (Control+F on a PC, Apple+F for Macs) for the relevant amendment/s. Yes, it’s clunky. If you don’t like it, subscribe to Lawlex and let them compile the table for you.

In short:

• “Current” compilations of Acts are only current to the date of the consolidation – to ensure you’re working with up-to-date legislation, you must check for amendments made since the last consolidation.
• Use Lawlex, or at least the Government sites themselves, to locate legislation. AustLII’s legislation databases are not always up to date.

Do you have any other tips or tricks when it comes to locating Australian legislation?

Filed under: Legislation

Tags: Acts, australia, compilations, law, legal-research, Legislation