Australian Legal History Resources

Research One (25 April 2005)

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Introduction

H istorical or archival research is probably under-utilised by Australian lawyers and legal researchers. There are several reasons for this, including problems of time, accessibility, and awareness. But if those barriers can be overcome, then archival research potentially offers an extremely rich and largely untapped source of knowledge and understanding of the law.

There are many and varied reasons why a lawyer might want to access archival sources. Fundamentally, archival research can provide an added depth and richness of the understanding of the law by revealing the history behind it, the contemporary social conditions, and the underlying policy.

Specific, practical examples of a lawyer wanting to conduct archival research include: an administrative lawyer who seeks a departmental handbook or memorandum to understand how a particular law was applied; a corporate lawyer who wants newspaper clippings in order to trace the history of a company; a trade practices lawyer searching for published opinion polls to support a passing-off action or evidence that a registered design is not new and distinctive; and a solicitor researching probate records and electoral rolls to ascertain the identity and whereabouts of a beneficiary under a will.

There are, of course, limits to accessing archival records, such as the '30-year rule' under the Archives Act 1983 (Cth), and procedures for searching and ordering archival material. Nevertheless, the time and effort involved in researching archives can be well worth the investment. And, hopefully, the following resources will provide the beginner with a useful head start.

1. National Archives

Possibly the most important resource is the National Archives of Australia, which houses Australia's Commonwealth government records. The National Archives include cabinet records, judges' notebooks, personal papers, government gazettes, and some of Australia's founding documents.

2. National Library

The National Library holds a very useful collection of Australian historical newspapers; electoral rolls; probate records; historic photographs; oral histories; diaries, letters, and other manuscripts, including collections from Australian judges, Attorneys-General, academic lawyers, and legal biographers; and court records, including unpublished decisions and transcripts of court proceedings. The National Library's Australian Government Publications Guide includes details for locating explanatory memoranda, Bills digests, parliamentary debates, and other extrinsic materials.

3. State and Territory archives and libraries

Most of Australia's States and Territories have their own State Archives. Among them are State Records NSW, Public Record Office Victoria, and the Queensland State Archives. Australia's State Libraries also house some fine historical legal materials.

4. Court archives

Other archival legal material is held by the courts themselves. The High Court, for example, currently retains all of its post-1930 court records (records prior to 1930 are kept at the National Archives). However, presently the Court's archives are mostly not indexed or comprehensively organised.

Legal historians might also consider the libraries and registries of Australia's State and Territory courts, such as the Supreme Court of Victoria, which holds law reports dating as far back as 1220 AD, and at least one textbook printed in the late fifthteenth century.

Court libraries are usually open to the legal profession and their staff, but most also provide limited access to other users, subject to the permission of the Court Librarian.

5. Online material

There are several free online databases that provide full-text access to historical materials. The most significant of these include the Australian Federation Full Text Database, which provides online access to key texts that record the making of the Australian Commonwealth, such as the Convention Debates. Nineteenth-century decisions of the NSW and Tasmania superior courts are published online by Macquarie University's Division of Law; and AustLii now provides a complete digital set of High Court decisions dating from 1903, making it one of the few free-access databases that provide a complete record of decisions of a national apex court.

The Directory of Archives in Australia is a very useful online resource. Among the gems located in that directory is the John Curtin Prime Ministerial Library, which includes some fascinating online digital materials relating to legal events and personalities, as does the online collection by another former Labor Prime Minister, Gough Whitlam.

The website for the Noel Butlin Archives Centre at the ANU in Canberra provides a list of holdings and subject guides on the Centre's collections.

6. Overseas collections

Finally, Australian legal historians should not overlook Australian material housed in repositories overseas, such as the Harvard Law Library, which owns one of the greatest collections of rare law books, manuscripts, and legal artwork in the world. Some of these are of particular interest to Australians.