Chapter 10

Tertiary Sources of Law

Introduction
Materials Related to Law
Working Documents

Introduction
[10.1] There are tertiary sources of law, although this is more a term of
convenience than science. It is a useful, if not totally apt, expression coined to
cover two classes of texts:
(1) Any publications that are involved in working with law in addition to
primary and secondary sources.
(2) Documents generated and drafted by lawyers when working with law.

Materials Related to Law

(2) Any other publications that are involved in working with law. These
consist of materials which are not strictly sources of law but which are related
to law in some way.
[11.1] There are some materials related to law that are not strictly sources of
law but are still sought in legal research because of their connection with law.
(i) Some of the most obvious examples are the research materials. (ii) Some
examples, which will be briefly considered here, are government publications,
parliamentary publications, law reform commission reports, law lists and
almanacs, and some on line sources. (iii) Other examples, which are not
considered, here are political and commercial information, information about
legal employment and continuing legal education, and government and
corporate records. Obviously, though, it is important to be familiar with any
of these materials that are relevant to your work.

Government Publications
[11.2] Government publications refer to government publication of material
other than of primary sources of law. Their relevance to law is obvious. Law
is made, administered and adjudicated upon by governments. Hence, much
information about law will be in government publications.1

1 For discussion of government publications see Borchardt (1979) and Coxon

(1984)

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[11.3] Each government has its own publishing service - although some have
been privatised - which has retail outlets in capital cities. Government
publications cover an enormous range of materials, and whole books have
been devoted to describing how access may be had to them. Both government
publications and their access literature are well covered in Enid Campbell et
al Legal Research, Materials and Methods and it is not therefore proposed to
give a comprehensive treatment here. Works giving access to government
publications are – Howard Coxon Australian Official Publications (Pergamon
Press), DH Borchardt Australian Official Publications (Longman Cheshire),
and Michael Harrington The Guide to Government Publications in Australia
(AGPS). For New South Wales, a useful guide to registers and records is
Georgia Seaton Directory of Registers and Records in New South Wales
(Longman Professional).

Parliamentary Publications
[11.4] Parliamentary publications refer simply to a range of material
published by parliament, or if not published by parliament, are relevant to the
function and work of parliament. Because of provisions in some Interpretation
Acts directing courts to look for the purpose or object underlying legislation,
these publications, especially Hansard, are now of practical use.

Parliamentary Debates (Hansards)

[11.5] Hansards refer to the official transcript of debates and proceeding in
parliament. They are named after Thomas Hansard, a nineteenth century
publisher of debates of the United Kingdom parliament. Hansards initially
appear in pamphlet form, and may be made available by the member who
made the speech in the house, but the reports are finally bound and indexed.

Votes and Proceedings (Journals)

[11.6] Votes and proceedings, and journals, record the day to day business of
the Houses of Parliament. For lower houses these are called votes and
proceedings, and for most upper houses they are called journals. They contain
minutes of proceedings, and such items as lists of members, registers of Bills,
records of divisions, addresses, and orders for papers, notice of questions and
motions, and orders for the day.

Bills
[11.7] Bills are not generally published in bound works, but pamphlet copies
of current or recent bills may be sold at government bookshops. Further,
parliamentary librarians usually make bound copies of those bills that reach
the second reading stage. In addition, the National Library of Australia has a
 Chapter 10 Tertiary Sources of Law 3

collection of all bills introduced in Commonwealth and state parliaments

since 1904.

Rules and Standing Orders

[11.8] Rules and standing orders regulate the conduct of business in
parliament. They are usually published under the auspices of their parent
house.

Parliamentary Papers
[11.9] When a paper is presented or tabled in parliament, parliament may
order that it be printed. Those papers that are printed are called Parliamentary
Papers. Parliamentary Papers cover a wide range of topics. Those of most
direct interest for policy studies are reports of committees of parliament and
other inquiries which precede or investigate legislation.

Explanatory Memoranda
[11.10] An Act, especially if it is an original Act and not an amendment, may
be accompanied by an explanatory memorandum. An explanatory
memorandum will normally go through the Act section by section explaining
what each section means, and in some cases illustrating its operation. These
can be useful in explaining the function of an Act. Even more important, they
are used for interpreting the legislation.

Law Reform Commission Reports

[11.11] Each jurisdiction has a law reform commission whose function is to
consider matters of law reform. When they have considered a law reform
reference from the government they publish a report (which may be preceded
by a working paper or preliminary report). Frequently these reports will
include a draft bill. These reports are one of the most exposed forms of policy
making available, although their utility is diminished by the fact that only a
proportion of law reform commission proposals are acted on.

[11.12] Law reform commission reports are widely referred to in the legal
literature. Further information can be obtained from the law reform
commissions who usually have copies for sale. Copies can also be obtained
from government bookshops. Law Reform Commission reports are indexed in
Australian Current Law until 1991 under the heading "Law Reform" in title
"28 Statutes and Legal Interpretation," and from 1991 under "Other Material"
in the Australian Current Law - Reporter. They are also indexed under the
title "Law Reform" in the Australian Legal Monthly Digest. Another index to
law reform commission reports is The Law Reform Digest 1910-80; 1980-85
(AGPS). For more recent news concerning law reform check Reform that is a
4 Chapter 10 Tertiary Sources of Law

regular bulletin of law reform news, views and information, produced by the
Australian Law Reform Commission.

Law Lists and Almanacs

[11.13] It can sometimes be convenient for a practitioner to have a list of
solicitors and barristers in his or her jurisdiction, and other, jurisdictions. For
example, he or she may want work done in another place. Such a list could
also be of interest to those who research social aspects of law. This
information is found in publications available in most jurisdictions that are
called law lists and almanacs. These also have other information of interest to
practitioners, for example the dates and times of court sittings, and details of
their circuits and offices. For details of organisations concerned with law
there is the Australian Legal Directory, published annually by the Law
Council of Australia.

Internet
[11.14] A significant and growing body of information is available
electronically via the Internet. Most major legal institutions and Government
organisations provide access to this information via their respective home
pages. Much of this information is available free of charge and is relevant to
law.

Working Documents
[10.2] Tertiary sources include documents generated and drafted by lawyers
when working with law. Examples are opinions, contracts, wills, pleadings,
affidavits and letters. In some cases a tertiary source just contains law, an
example being an opinion. In other cases, though, a tertiary source is part of a
process for changing a client’s legal position, an example being a will or a
contract.2

A lawyer spends a great deal of time and effort to preparing these documents.
Frequently this time and effort involves legal research. To preserve the
benefit of this time and effort, once the document is prepared it should be
stored as a precedent because there is the chance or even the likelihood that
the same point may come up again. This involves two things. First, it is
necessary to enter the document into a database of precedents. The database
can also be used to store other information such as seminar papers and useful

2 There is constant complaint that documents are difficult to read. For advice
on how this might be rectified see Willis (1978).
 Chapter 10 Tertiary Sources of Law 5

items from professional journals. Second, it is necessary to index the database

to enable you to access the material.3

[10.3] Tertiary sources do not feature in general legal research, except to the
extent that some legal publications contain precedents for various legal tasks,
eg drafting contracts and pleadings. These legal publications may be books or
encyclopedias that collect and organise precedents, or they may be a text or
looseleaf service dealing with an area of law from the point of view of
practitioners. Subject to this, their main significance is in law offices where
they assume prominence - as explained above, most firms will store their
precedents in a central depository or database to enable other lawyers to
access them when required. Thus tertiary sources are largely in house affair.
This is why discussion of research is largely about primary and secondary
sources.

3 Another excellent overview of computing application to law office

management can be found in Derek Hamill Legal Computing Handbook published in
1993 by the Law Society of New South Wales.