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Judicial Consideration of a Section of an Act – Interpretation or Discussion of the Section in Court
Although parliamentarians write legislation in language that they believe is clear and straightforward, this is often not the case when the legislation is taken into the ‘real world’.
Courts have a significant role in interpreting the meaning of words and phrases in the legislation and in determining the application of the legislation in disputes.
Determining the meaning of statutes and the intent of legislators by the Court is known as ‘statutes judicially considered’ or 'legislation judicially considered’.
There are a variety of databases that can assist in this research, some of which are available on subscription, such as Lexis Advance and Westlaw Australia, and some which are freely available, such as AustLII and LawCite.
Each of these databases will be discussed in turn.
Judicial Consideration of an Act on Lexis Advance
Lexis Advance can be accessed via the link on the Law Subject Guide.
Example: source cases considering s 14 of the Misuse of Drugs Act 1981 (WA).
Step 1: Access Lexis Advance
Step 2: Select the Legislation tab from the Quick Find box
Step 2: Complete the Legislation title (select the relevant suggested title) and Provision Number fields
Misuse of Drugs Act 1981 14 (only add the number)
Step 3: Select Search
Step 4: Select the hyperlinked section from the Results list
Part IV — Controls relating to possession, sale, supply and storage of certain substances and things
Step 5: Navigate down the page to s 14
14. Possession of certain substances or things
Step 6: Click on >> View Legislation Citator link, to the right of the section title.
Step 7: Select Cases from the content menu to navigate to the cases considering this section of legislation
Judicial Consideration of an Act on Westlaw Australia
Westlaw Australia can be accessed via the link on the Law Subject Guide.
Option 1: Global Search |
Option 2: Advanced Search |
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Step 1: Search by Act title and section number in the global search box Example: WAIT
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Step 1: Select Content type - Cases
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Step 2: From the drop down suggestions, select the linked section title
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Step 2: Select Advanced Search
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Step 3: Select Cases from the Citing References tab
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Step 3: Once on the Advanced Search Cases page you will find a search template tailored to case law research. Complete Legislation Title and Provision Number fields Tip: Do not include a designation abbreviation
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Step 4: Click on the magnifying glass icon to Search |
You will be taken to the search results page.
Make sure that you look closely at the results and ensure that each case is actually considering the right section of the right Act in the right jurisdiction.
At the time of writing, this search returned approximately 30 results.
Some of the results returned are not the correct Act so it is again important to check the accuracy of the results.
Below is a screen shot of one of the cases, Robinson v Fielding, which was returned as a result from the search.
You can see that the correct Act and section in the correct jurisdiction appears in this case.
Below is a screen shot of one of the cases, Wintawari Guruma Aboriginal Corporation RNTBC v Wyatt, which was returned as a result from the search.
You can see that the correct Act and section in the correct jurisdiction appears in this case.
You can use the same strategies to source information regarding Commonwealth legislation.
Always make sure that you check your results to ensure that the cases you find are discussing the correct section of the correct Act in the correct jurisdiction.
Sometimes an Act will have the same short title and year but be in a different jurisdiction.
To be sure, click through the case record and scroll down until you find the heading Legislation Considered then check to see that the correct section, of the correct Act in the correct jurisdiction is being considered.
Judicial Consideration of an Act on LawCite
AustLII can be accessed via the link on the Law Subject Guide.
LawCite is a freely available case citator from AustLII. LawCite describes itself as "...an automatically generated international legal case and journal article citator". It is something you use to locate judgments and to see how these have been subsequently dealt with and commented upon, or to see where journal articles have been cited. It provides up-to-date access to Australian and international case law, journal articles and where possible provides links to the free full text of these. It is not created by editors and therefore does not apply the criteria that citators like CaseBase on Lexis Advance and FirstPoint on Westlaw AU do.
Step 1: Access LawCite the link from the AustLII homepage
Step 2: From the LawCite homepage, enter in the details in the search fields to locate cases that have judicially considered s 17 of the Aboriginal Heritage Act 1972 (WA) then click Search.
Explore the search results screen.
- You can sort the results in the table by clicking on the column headers such as Case Name, Citation(s), Court, Jurisdiction, Date and the source where you can access Full Text.
- You can also use the links at the top to jump between cases, law reform reports and journal article results.
You can use this search strategy to judicial consideration of sections of Commonwealth Acts as well. You can substitute Banking Act 1959 s 9 for the search above to find cases judicially considering this section that are held in LawCite.