Primary and Secondary Sources
Sometimes finding the law is not easy, even for a lawyer. The first question is always: is there any relevant legislation? But even before that question can be answered it is important to know whether to look for Commonwealth or State legislation. If legislation is unclear or non-existent then the place to look is case law, which is found in the many reports of cases decided by the courts known as Law Reports.
Legislation and case law is a primary source of information on the law. A secondary source can be, among other things textbooks, commentaries, or academic articles. Decisions of courts are often informed by both.
Websites on the internet enabling free access to up-to-date legislation and case law have revolutionised the task of locating the primary sources of the law. The most useful general purpose Australian sites for legal research are:
However, to find a way through the maze of these primary sources, it is usually still a good idea to start research with a secondary source of law, that is a text book, which gives a guide to the primary sources of law on a particular topic.
A site for Tasmanian law is:
Recent years have seen a flood of books about law for non-lawyers. These books are usually much easier to understand than legislation and law reports and may be all that is needed to find the answer. Usually they are about particular topics, for example ‘family law’ or ‘motor vehicle accidents’. This Law Handbook website attempts to provide an introductory guide to most areas of law affecting the ordinary person in their day-to-day affairs.
A person referring to secondary sources should be aware of three pitfalls:
- the textbook may be out of date — changes to the law can be rapid in many areas;
- some textbooks are unreliable — they may not be accurate in their explanation of the legislation and cases law;
- views as to the law may vary — it is worthwhile to compare what different textbooks say.
One way of trying to avoid some of the pitfalls is to use loose leaf texts published by CCH, Butterworths and the Law Book Company. Though not as user friendly, they are generally more up-to-date, reliable and mainstream in their views. But make sure that they have been kept up-to-date. The loose leaf texts kept at law libraries generally will be current.
Another way is to follow up with a search on one of the legal websites for the occurrence of a key word or phrase in the area of law being researched. Make sure that research covers both the 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 provides a free service with legislation, decisions of courts, and some articles. Familiarity with boolean search terms is also an asset. Information can be accessed through a simple internet search for boolean search terms.
Page last updated 05/03/2019