8 Judicial Consideration of an Act - Self Paced Lesson - Case Law - Subject Guide

Judicial Consideration

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

The CaseBase page includes:

Catchwords & Digest
Words & Phrases judicially considered
Litigation history
Cases referring to this case
Publications referring to this case
Cases considered by this case
Legislation considered by this case
Cases considered by this case

Navigate down the page to the Legislation considered section to view the specific sections used to support the case argument.

Cases Citing an Act

Cases Citing an Act: General Search	Cases Citing an Act: Advanced Search	Cases Citing an Act: LawNow
Step 1: Search by Act title and section number in the general search box Example: "Aboriginal Heritage Act 1972" /5 17	Step 1: Select Advanced Search Cases Example: Aboriginal Heritage Act 1972 s 17	Step 1: Select the Legislation tab in the Quick Find box
Step 2: Click on the magnifying glass icon for Search	Step 2: Once on the Cases page you will find a search box tailored to case law research. Navigate down the page to the fields Legislation Title and Provision Number Complete the fields Legislation Title and Provision Number (only add the number) Type Aboriginal Heritage Act 1972 in the Legislation Title box As you begin typing the Act name in the search box, suggestions will be made. If there is a relevant suggestion, select it. The search box will be populated with the appropriate information. If a relevant suggestion isn't made - keep typing (and check your spelling!) Type 17 in the Provision Number box.	Step 2: Type Aboriginal Heritage Act 1972 in the Legislation Title box As you begin typing the Act name in the search box, suggestions will be made. If there is a relevant suggestion, select it. The search box will be populated with the appropriate information. If a relevant suggestion isn't made - keep typing (and check your spelling!) Type 17 in the Provision Number box.
Step 3: By default, the Results open on the Cases tab Make sure that you look closely at the results and ensure that each case is actually considering the correct section of the correct Act in the correct jurisdiction.	Step 3: Click on Search	Step 3: Click on Search
Results can be Narrowed By	Step 4: 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 correct section of the correct Act in the correct jurisdiction. Results can be Narrowed By	Step 4: You will be taken to the search results page. Select the link View this passage in full document
	You can use the same strategy to find 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, scroll down the Document page until you find the heading Court Supplied Summary and check to see that the correct section, of the correct Act, in the correct jurisdiction, is being considered.	Step 5: Click on the link >> View Legislation Citator locatedto the right of the section heading
		Step 6: Click on the link to Cases to quickly navigate to this section of the LawNow record

Judicial Consideration of an Act on Westlaw Australia

The Case Display page includes:

Digest
Legislation Considered
Cases Cited
Words and Phrases Judicially Considered
Orders
Opinion/Judgment

Navigate down the page to the Legislation Considered section to view the specific sections used to support the case argument.

Cases Citing an Act

Cases Citing an Act: Global Search	Cases Citing an Act: Advanced Search
Step 1: Search by Act title and section number in the global search box Example: Aboriginal Heritage Act 1972 17 WAIT	Step 1: Select Content type Cases
Step 2: From the drop down suggestions, select the linked section title	Step 2: Select Advanced Search
Step 3: Select Cases from the Citing References tab	Step 3: Once on the Cases page you will find a search box tailored to case law research. Here, put "Aboriginal Heritage Act 1972" in the Legislation Cited (Title) box and "17" in the Legislation Cited (Provision) box and click on Search.
	Step 4: 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 35 results. Some of the results returned are not the correct Act so it is again important to check the accuracy of the results.
	You can use the same strategy to find 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, scroll down the Document page until you find the heading Court Supplied Summary and check to see that the correct section, of the correct Act, in the correct jurisdiction, is being considered.

AustLII

AustLII can be accessed via the link on the Law Subject Guide.

AustLII is one of the LII (Legal Information Institutes) that aim to provide free access to primary legal materials.
AustLII contains Australian primary materials (cases and legislation) as well as a growing body of journal articles and other secondary materials.
While you should always source Australian legislation from the primary (authoritative) source rather than AustLII, their case databases are the most comprehensive and up to date free source in Australia.

The following information supports the Library Research Tests.
For more information the AustLII help information is invaluable and worth becoming familiar with during later stages of your legal research.

LawCite

LawCite is a companion to AustLII with a different search engine presenting information in a different way.

AustLII is limited to Australian legal materials while LawCite searches across the common law world.

Use LawCite to locate judgments and see how these have been subsequently dealt with and commented upon or see where journal articles have been cited.

In many ways, LawCite is similar (but is in a slightly different space to) the editorially produced commercial legal citators such as subscription products like CaseBase.

Judicial Consideration of an Act on AustLII

The Case Display page includes:

Catchwords
Words and Phrases
Legislation Considered
Opinion/Judgment
List of references (at the end of the document)

Navigate down the page to the list of legislation considered section to view the specific sections used to support the case argument.

Cases Citing an Act

Cases Citing an Act: General Search Task: cases judicially considering s 14 of the Misuse of Drugs Act 1981 (WA)	Cases Citing an Act: LawCite Task: cases judicially considering s 14 of the Misuse of Drugs Act 1981 (WA)
Step 1: Select WA from the charcoal ribbon. Note: AustLII does not have the official or authorised version of legislation. Western Australian legislation should be sourced from Western Australian Legislation. Acts on AustLII are updated regularly, but are not always the most up to date source. Western Australian Legislation should be used to source the most up to date version.	Step 1: Select LawCite from the charcoal ribbon.
Step 2: The Western Australian Resources page for Case Law & Legislation has headings Western Australian Case Law and Western Australian Legislation . Option 1: Scroll down to Western Australian Legislation Select Western Australian Current Acts Option 2: Select the WA Legislation tab at the top of the screen Select Western Australian Current Acts.	Step 2: Complete the text boxes for: Jurisdiction: Western Australia Legislation Considered: Misuse of Drugs Section: 14
Step 3: Select M from the charcoal ribbon. Navigate to the Misuse of Drugs Act 1981 in the alphabetical listing Click on the blue hyperlinked title.	Step 3: Click on Search.
Step 4: From the Table of Contents, which outlines the structure of the Act, navigate to s 14 Possession of certain substances or things	Step 4: You will be taken to the search results page. Results can be sorted by Case Name, Citation(s), Court, Jurisdiction, Date and the source where you can access Full Text. Sort the results table by Jurisdiction. Click on the Citation or Full Text links to access the full text of the case 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.
Step 5: Click on the blue hyperlinked section number.	You can use the same strategy to find 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.
Step 6: Click on the NoteUp references link, located on the right-hand side of the full text of the section, below the CITED BY heading	Note: Search results from these two methods may not be identical, as LawCite is a separate product to AustLII.
Step 7: NoteUp results list documents in AustLII that may refer to s 14 of the Misuse of Drugs Act 1981 (WA), with the most relevant at the top of the list. You must check that these are accurate results by looking at the case to see if the Act and section are discussed.
At the bottom of the screen you can adjust the number of results shown per page. The default is 10, but you can change it to 20, 50 or 100. Change the way results are displayed using the tabs at the top of the page. Sorting by date may help when you have many pages of results you need to check through, as it will display the cases in reverse chronological order. Sorting by database will allow you to identify case law and journal articles separately. Where you have a lot of cases displayed, you may find it useful to use the Ctrl + F keys (on a Windows machine) or Cmd + F keys (on a Mac). This will open up a dialog box which will allow you to enter terms to search for on the page you have displayed, but beware - it will only search the page currently displayed and if the case that you are looking for is on the next page of results, this method will not find it. This is why it is useful to increase the display to 100 results. Using NoteUp for Commonwealth Legislation involves the same process. From the AustLII homepage, where you selected WA, select CTH instead.