Accessing the Law from Smaller Libraries

Accessing the Law from Smaller Libraries
This session will begin by offering you a little insight into how the law works – before we go on to look at some strategies for tackling the sorts of queries that your clients might be asking and looking at the sorts of resources you can call on.

There is a handout listing a judicious selection of resources from the web and in printed form.

Let’s start with a real-life scenario -

Someone comes to the Desk and hands over an i-Pod saying, “I found this in the Library – can I keep it if no-one claims it?”
Now you may have a library policy on lost and found items, but whether you do or not, this is in fact a query about the law. And if push comes to shove, the law will override your policy. So where might you find a statement of the law on lost property?
Perhaps it’s in a statute?
We first need a little legal history.
Our legal system – Parliament, courts and judges and lawyers – is based on the English model.
Early English Parliaments were principally preoccupied with two things – raising taxes for the Royal military machine – and maintaining law and order. Parliament used its powers to enact – and publish - statutes (or ‘acts of Parliament’) which were binding on all citizens – tax laws and laws about crime or keeping the peace.
At the same time, there were many courts in which judges would enforce the tax and criminal laws, (often having to interpret the statutes in the process) and decide on disputes between citizens – eg. disputes about property or claims that someone had harmed or wronged another.
(The distillation of the decisions resolving such disputes is called private law, or civil law.)
The decisions of the judges were not published until early lawyers started collecting and disseminating significant ones to help them prepare cases to go before the courts. These court decisions form what is known as The Common Law.
So we have two main sources of law – legislation and common (or judge-made) law. (Technically there is a 3rd source – that of ‘custom’ – the way things had been done since time out of mind – but most of that has long ago been built into the common law.)

And until the Industrial Revolution, when Parliament starting making laws on matters other than just taxes or crime, most of the law was Common Law – judge-made law.
In fact - in spite of the huge amount of legislation that now rules our lives - there are still plenty of areas of daily life in which Parliament has not legislated – attributing ownership to lost property like our iPod is one of them.

So how does this ‘Common Law’ work and where is it?
It now works like this. A judge, in reasoning his or her way to a decision, applies statements of principle that have been developed by earlier courts. Such as “a person who finds a lost item has more rights to it than anyone except the true owner”. This principle comes from a case decided in 1722.
And until a court of suitable higher authority - such as a court of appeal – or Parliament (by statute) amends or overrules that old decision – it remains The Law. This process is known as The Doctrine of Precedent – it is designed to give stability and predictability to the law – based on principles established in the course of resolving real-life disputes.
To research the Common Law you need a library of published, selected court decisions (known as Law Reports) - ideally going back to about 1600.
And it is complicated by the fact that Australia, NZ, Canada and the USA all took on board the English case law system. And if a NZ court is faced with a problem which has no clear solution based on previous NZ cases, the judge will accept legal argument based on court decisions from all of those countries (plus England/Wales of course).

It is only only in the last few years that any of these decisions have become freely available (in a raw form) on the Web – more of that later.

Thanks heavens that when it comes to legislation we no longer have to cope with English statutes as well as our own – we now rely entirely on statutes from the NZ Parliament – although many statutes – such as our copyright laws, are heavily based on English models.

So, getting back to the i-Pod sitting on the Desk – how do you, in Winton or Te Anau find out whether it is covered by NZ statutes or by the Common Law?

Or, more generally, how do you try to assist someone to find out what the law is – or what their legal rights are – in a particular instance?

(Of course, the simple answer is: visit a lawyer or a Community Law Centre – but people often want to get a feel for the law first. Or they may be wanting to fly solo – to prepare their own case or to find a corrective to a court case in which they feel they did not get their just desserts. )

Strategy 1: start with a simple secondary source. (I guess I should explain that lawyers refer to legislation and case law as Primary Sources – actual statements of law. Anything else – journal articles, textbooks, dictionaries and encyclopedias – is a Secondary Source.

At this point you might be tempted try Wikipedia; the problem is that legal articles on Wikipedia are likely to be slanted to an American audience – or at least are unlikely to give the full and true NZ picture.
So for a simple NZ secondary source?
You should all have a recent edition of the Butterworths NZ Law Dictionary. It will almost always help you get started and will often alert you to a relevant statute or a key case. Let’s try looking under ‘lost property’ …(nothing there, so let’s think of a related term: ‘finding’… gives a bit of help. By the way, at the back is a handy list of some legal abbreviations and what they mean.

The only NZ legal encylopedia (Laws of New Zealand) is in about 35 regularly updated volumes and is way beyond the wallet of a small public library.

Probably the most wide-ranging up-to-date secondary source for public library use is Know your rights : a practical guide to the law for every New Zealand household / Catriona MacLennan , 2006
It is more up-to-date than Tim McBride’s well known New Zealand civil rights handbook, 2001 (now getting a bit dated and to be used with caution)

There are also various introductory textbooks on NZ law – usually designed for tertiary education courses – useful background, but usually not much use for real life practical problems.
Eg. Mulholland’s Introduction to the New Zealand Legal System

On the web, you might find guidance from a wide-ranging public-assistance site like ‘LawAccess’ on the Legal Services Agency site – it includes an excellent glossary of legal terms. Sometimes it leads to sites with web-based information – sometimes it just gives contact details or details of books and brochures.
Two sites which provide short articles or overviews of the law – written by lawyers – not always particularly up-to-date - are
FindLawNew Zealand and HowToLaw –
Both sites provide short pieces on practical legal matters, often with links which encourage you to consult a lawyer.

Strategy 2: Find a detailed textbook on the subject.
There are three main legal publishers in NZ – Brookers, CCH, and LexisNexis. Their websites include catalogues of their publications.
The handout gives you a fairly complete list of possibly relevant books in print – but ignoring the often very expensive and voluminous looseleaf works - usually designed for lawyers and judges and universities. I’ve asterisked some that could be particularly pertinent for most small libraries. You might want to consider buying something for subjects that often surface in your particular community – Family law, for example; perhaps Criminal law and Medical law. (You’ll see that the handout is organised in a self-indexing way, based on keywords in the book titles.)
One of the problems with legislation and case law is that it is not published in a subject-oriented way – and of course it is continually changing.
The great virtue of a textbook is that it should integrate discussion of all the relevant legislation and court decisions on the full range of subheadings within a subject. But bear in mind that no printed text can be fully up-to-date.
The actual text of legislation will often be included. (In fact there is a class of books which does nothing except reprint the legislation on a topic. I’ve excluded those from the handout.)
A word of warning -
Be aware that indexes to law books can be baffling; they tend to use legal jargon – and they often consist of just a few broad headings, with detailed subheadings. (Often baffling if you don’t have legal training.)

Strategy 3: Finding an ‘article’
I wouldn’t normally recommend looking for articles on legal topics, because they are likely to be either too general (eg something in The Listener) or too technical or academic. The database Index New Zealand does index major NZ legal journals, but would mainly be of use for finding expert commentary on a recent court decision or on the likely impact of new legislation.
For this you might also find material on the web sites of the big law firms (eg Chapman Tripp; Bell Gully; Russell McVeagh) they like to put up solid articles about recent legal developments – aimed often at the corporate client. There’s no easy way of restricting your search to such sources but a well constructed Google search should flush out that sort of material. Eg: zealand and (law or legal) and ‘topic’

Strategy 4: If you really must dive straight into the legislation:
At the moment the only general subject index to NZ statutes and regulations is the looseleaf Index to NZ Statutes published by LexisNexisNZ (previously known as Butterworths) – probably too expensive for a small public library .
LexisNexis publish several versions of New Zealand legal words and phrases (latest bound issue appears to be 2001).
This can be a useful shortcut into the statutes as well as alerting you to key cases which have interpreted a word or phrase. It is not a subject index – it tells you in which statutes or cases a particular word or phrase has been defined.

Of course NZ legislation is now freely searchable on the Web at the PAL (Public Access to Legislation) site. But of course, free text searching on the entire statute book can produce daunting numbers of hits.
Better to use a textbook to find out what statute is relevant to your query, then go to it using the contents list at the PAL website.
Warning – always be aware that legislation is a technical form of literature, with its own special rules of construction and interpretation. A common-sense reading will often not be a correct legal interpretation. And the complexity can be astounding. Has anyone had a look at the new ‘simplified’ income tax legislation?

Strategy 5: Finding actual court decisions: (case law)
Only a tiny amount of NZ case law is as yet available freely on the web. (The key NZ site is http://www.nzlii.org/) – with decisions of the Supreme Court; Court of Appeal: 1999-; High Court: Ag 2005- ; and a rapidly increasing amount of material from various administrative tribunals, such as the Broadcasting Standards Tribunal.
NZLII is not authoritative or complete but it is easy to search using Boolean operators.
Again, be aware that reading and interpreting cases is a professional skill.

One of the common queries we field at the University Law Library is from people – sometimes family historians – who want to find details of some famous case or another – often a sensational murder trial. The answer usually is that the published law reports are usually only interested in providing lawyers and judges with access to court decisions which create or modify the principles of the law – and most famous trials are simply applying well-established legal doctrines. So they are not published in the law reports. Usually, the only available accounts will be those in the newspapers of the day.

Now, thinking for a moment about some of the ethical aspects of helping your clients;
Here are some cautionary words:
Remember that you are not a qualified lawyer. So you must be very careful that your client is under no illusions that you might be providing legal advice. To do so would be opening yourself up to the potential for being sued.
- Just be careful to point out that you are not providing legal advice.
- Interpreting legislation and case law is a job for experts – even if you think you can make sense of it – don’t trust yourself unless you have a law degree. For example – just because a statute has been published does not mean that it is ‘in force’. It can be difficult even for experts to find out when a statute is going to take effect.

- you must always be aware that there may be recent legislation or cases which change the picture you have found

- be particularly wary of clients wanting help with preparing their own legal documents - it can be done, and some websites and books go into that level of detail, but in general terms it is strictly for the professionals.

I would imagine you don’t get many legal information queries from your local lawyers? They will usually have their own small library and they also have access to their local district law society library (eg the Otago District Law Society in Dunedin)

If you want to learn more about legal research and legal literature, I’ve given a couple of references in the handout. And there are also pointers to key web sites, including parliament, The Knowledge Basket, etc.
My email address is on the handout – do feel free to contact me with queries.

And the fate of the i-Pod? The case law has lots of ins and outs. For example, the answer may depend on whether it was found in a public part of the library or not ; and what you do next might depend on whether you have notices disclaiming responsibility for lost property. You certainly need to note what was found and who found it (and how to contact them again).
Basically – it is ‘Finders Keepers’ – as long as reasonable efforts are made to find the true owner.

Alan Edwards
Law Librarian
University of Otago
Dunedin

9 March 2007





Accessing the Law from Smaller Libraries

Web sites

Overviews of resources:

www.nyulawglobal.org/globalex/New_Zealand.htm (Margaret Greville’s detailed
2005 page on NZ law and resources (print and electronic))
www.library.otago.ac.nz/subjectguides/lawnz.php (‘P’ = free public sites)


Practical help and introductory articles

www.lawaccess.lsa.govt.nz/ (glossary & links to 150 sites of practical information)
www.findlaw.com/12international/countries/nz/index.html (short articles)
www.howtolaw.co.nz/ (answers to many common queries)
www.lsa.govt.nz/ (legal aid and advice; community law centres)
http://www.keepingitlegal.net.nz/ (legislation affecting community organisations)
www.courts.govt.nz/family/home.asp (family court matters)
www.ird.govt.nz/ (taxation)
http://www.consumer.org.nz/ (‘legal rights’ link)
www.library.otago.ac.nz/pdf/anzla_1995.pdf (meanings of legal abbreviations)
www.nz-lawsoc.org.nz/ (pamphlets; Code of Ethics; complaints)
http://www.adls.org.nz/ Includes ‘Find a lawyer’ and ‘Law firm websites’ for NZ


Key resource sites

www.legislation.govt.nz/ (current, updated, statutes and regulations)
www.knowledge-basket.co.nz/gpprint/docs/welcome.html (bills)
www.nzlii.org/ (searchable recent decisions of higher courts and some tribunals)
www.justice.govt.nz/pubs/reports/2006/directory-of-official-information/index.html
(Directory of Official Information)
www.parliament.nz/en-NZ/ (Parliament – Hansard, Select Committees, etc)




Printed resources
There are many ‘handbooks’ which tend to be little more than reprinted legislation on the subject; they have not been listed here.
The more detailed ‘legal practitioner’ works are provided in looseleaf or electronic forms and tend to be very expensive; they are not listed here.
For public use, textbooks are probably a more practical purchase. Prices excludes GST.
Asterisked items are probably ‘musts’ for the smallest library.
Publishers websites include catalogues: Brookers: www.brookers.co.nz/
CCH NZ: www.cch.co.nz/ LexisNexis NZ: http://www.lexisnexis.co.nz/

Textbooks and similar:
Legal Research and Writing, 3rd ed/ Margaret Greville et al, LexisNexis NZ, 2006
ISBN: 9780408718240 $85
*Butterworths New Zealand law dictionary / by Peter Spiller. LexisNexis NZ, 2005.
ISBN: 0408717939 $82
*Know your rights: a practical guide to the law for every New Zealand household /
Catriona MacLennan ,Penguin, 2006. ISBN: 9780143020431 $29.99
*Law Directory 2007, Brookers, 2007 ISBN: 0-86472-59-8 $ 78.40
New Zealand legal words and phrases. Consolidated index - 2001 / Butterworths, 2001.
ISBN: 0408716347 $?

Arbitration in New Zealand, 2d ed/ A.A.P Willy, LexisNexis NZ, 2003
ISBN: 978 0408716888 $92.40
Tyree’s Banking Law in New Zealand, 2d ed/ Alan L Tyree, LexisNexis NZ, 2003
ISBN: 9780408715089 $119 ?
The New Zealand Bill of Rights Act: A Commentary/ A S Butler, LexisNexis NZ, 2005
ISBN: 0408716398 $160
Care of Children in New Zealand/ by Lex de Jong et al Brookers, 2005
ISBN: 0-86472-541-8 $ 86.00
Principles of Civil Procedure, 2d ed/ by Andrew Beck, Brookers, 2001
ISBN: 086472 417 9 $ 84.00
Civil Remedies in New Zealand/ by Rt Hon Justice Peter Blanchard et al, Brookers, 2003
ISBN: 086472 4446 $ 176.00
New Zealand civil rights handbook / Tim McBride, Legal Information Service, 2001.
ISBN: 0473074532 $59.95
Good Faith in Collective Bargaining/ Geoff Davenport and Judy Brown, LexisNexis
NZ, 2002 ISBN: 0408716649 $100
Butterworths Introduction to Commercial Law/ John Burrows et al, LexisNexis NZ,
2005 ISBN: 0408718072 $135
Understanding Commercial Law, 5th ed/ Philippa Gerbic, LexisNexis NZ, 2006
ISBN: 0408718579 $76 ?
Closely Held Companies - Legal and Tax issues/ Robert Dugan et al, CCH NZ, May
2000. ISBN: 0 86475 486 8 $130.00
Constitutional and Administrative Law in New Zealand, 2d ed./ Philip A Joseph Brookers, 2001 ISBN: 0 86472 399 7 $148
Construction Law in New Zealand/ Master Kennedy-Grant, LexisNexis NZ, 1999
ISBN: 0409 702250 $118
Consumer Credit/ Bill Bevan, LexisNexis NZ, 2005 ISBN: 9780408717977 $76
An Introduction to the Law of Contract in New Zealand/ by Maree Chetwin et al, 4th ed,
Thomson/Brookers, 2006 ISBN: 0-86472-5555-8 $88
Law of Contract in New Zealand, 3rd ed/ J F Burrows, et al, LexisNexis NZ, 2007 $125
Conveyancing Law Handbook, 2d ed/ Nicholas Drake et al, CCH NZ, 2003
ISBN: 0 86475 571 6 $90.00
Credit Contracts and Consumer Finance in New Zealand/ by Christopher Birkinshaw,
Brookers, 2005 ISBN: 0-86472-495-0 $ 68.00
*Adams on Criminal Law (4th student ed)/ by The Hon Justice J Bruce Robertson et al,
Brookers, 2005 ISBN: 0-86472-502-7 $ 114.67
Principles of Criminal Law, 2d ed/ Andrew Simester, Brookers, 2002
ISBN: 0864 724217 $ 104.00
Duties and Responsibilities of Directors and Company Secretaries in New Zealand/
Andrew Borrowdale, CCH NZ, 2004 ISBN: 0 86475 $88.00
The Disputes Tribunals of New Zealand, 2d ed,/ by Peter Spiller, Brookers, 2003
ISBN: 086472 443 8 $ 40.00
A Guide to E-Commerce/ by Simpson Grierson's x-tech group, Brookers, 2002
ISBN: 0864724284 $ 94.50
Electronic Commerce in Plain English/Don McIlroy, LexisNexis NZ, 1999
ISBN: 0408 715642 $35.50
Employment Dispute Resolution/ Phillip Green, LexisNexis NZ, 2002
ISBN: 0408716681 $68
*New Zealand Employment Law Guide 2007/ Richard Rudman CCH NZ, 2007
ISBN: 9780864756985 $56.00
LexisNexis Employment Law Guide, 7th ed/ G Anderson, LexisNexis NZ, 2005
ISBN: 040871056 $130
Handbook of Environmental Law/ ed by Rob Harris, Royal Forest and Bird Protection
Society of New Zealand Inc., 2004. ISBN: 0-95978-518-3 $ 67.50
Environmental and Resource Management Law, 3rd ed/ Derek Nolan, LexisNexis
NZ, 2005 ISBN: 0408716789 $140
Equity and Trusts in New Zealand/ by Andrew Butler et al, Brookers, 2003
ISBN: 086472 354 7 $136
Ethics - Professional Responsibility and the Lawyer, 2d ed, Duncan Webb, LexisNexis
NZ, 2005 ISBN: 0408 717238 $92
Cross on Evidence, 8th ed/ D L Mathieson, LexisNexis NZ, 2005 ISBN: 0408718064
$135.00
*Family Law in New Zealand, 12th ed, P R H Webb et al, LexisNexis NZ, 2005
ISBN: 0408718250 $138
Guidelines for Family Mediation - Developing Services in Aotearoa – NZ/ National
Working Party on Mediation, LexisNexis NZ, 1996 ISBN: 9780408714570 $30
Law of Family Protection and Testamentary Promises, 3rd ed/ W M Patterson, LexisNexis
NZ, 2004 ISBN: 0408716924 $115 excl GST
The Essential Guide to Financial Planning in NZ/ Roger Spiller, CCH NZ, 2000,
ISBN: 0 86475 476 0 $195.00
A-Z of Food Safety/ John D Brooks, CCH NZ, 2000 ISBN: 0 86475 496 5 $137.78
GST - A practical guide, 7th ed/ Alastair McKenzie CCH NZ, 2002, ISBN: 0 86475 560 0
$80.00
A Practical Guide to the Hazardous Substances and New Organisms Act/ by Theresa Le
Bas et al, DSL Publishing, 2005 ISBN: 0-86472-459-4 $ 88.00
Health Care and the Law, 3rd NZ ed/ Sue Johnson, Brookers, 2004
ISBN: 086472 463 2 $107.99
Guide to Holidays and Leave,2d ed/ Kiely Thompson Caisley. CCH NZ, 2006
ISBN: 0 86475 632 1 $79.95
Intellectual Property Law/ Paul Sumpter, CCH NZ, 2006 ISBN: 0 86475 617 8 $79.95
Intellectual Property in New Zealand/ Susy Frankel and Geoff McLay, LexisNexis NZ,
2002 ISBN: 0408715065 $112
internet.law.nz - Selected Issues, 2d ed/ David Harvey, LexisNexis NZ, 2005
ISBN: 0408718137 $125
Butterworths Land Law in New Zealand/ G W Hinde et al. LexisNexis NZ, 1997
ISBN: 0408 714514 $166.50
McVeagh's Land Valuation & Property Law, 8 ed/ R D Mulholland, LexisNexis NZ,
1994 ISBN: 0409 790168 $136
A New Zealand Legal History, 2d ed/ by Peter Spiller et al, Brookers, 2001
ISBN: 086472 418 7 $?
A Guide to the Local Government Act 2002/ by Jonathan Salter, Vivienne Wilson,
Brookers/DSL, 2003, ISBN: 0864 724 500 $ 76.50
Maori Land Law, 2d/ Richard Boast et al, LexisNexis NZ, 2004
ISBN: 0408716916 $90 excl GST
Medical Law in New Zealand/ by P D G Skegg et al, Brookers, 2006
ISBN: 0-86472-572-8 $176
*Meetings: Practice and Procedure in New Zealand, 3rd Ed/ Roger Pitchforth, CCH NZ
1999 ISBN: 0 86475 400 0 $80.00
*Mental Health Law in New Zealand, 2d ed/ by Sylvia Bell, Brookers, 2005
ISBN: 0-86472-534-5 $ 84.00
Law of Mortgages of Land in New Zealand/ P T Young, LexisNexis NZ, 1995
ISBN: 0409 702404 $176
Guidebook to New Zealand Personal Property Securities Law/ Barry Allan, CCH NZ,
2002 ISBN: 0 86475 530 9 $80.00
[Personal Property Securities Act] PPSA: A Conceptual Approach, rev ed/ Linda
Widdup, LexisNexis NZ, 2002 ISBN: 0408716738 $80
Personal Property Securities in New Zealand/ by Mike Gedye et al, Brookers, 2002
ISBN: 0864 724 322 $ 148.00
Garrow & Fenton: The Law of Personal Property in New Zealand/ Roger Fenton,
LexisNexis NZ, 1999 ISBN: 0409 788422 $140
Relationship Property on Death/ by Andrew Beck et al Brookers, 2004.
ISBN: 0 86472 477 2 $ 84.00
*Residential Tenancies, 3 ed/ Andrew Alston, LexisNexis NZ, 1998
ISBN: 0408 714697 $56
Rights and freedoms : the New Zealand Bill of Rights Act 1990 and the Human Rights
Act 1993/ by Grant Huscroft et al, Brookers, 1995 ISBN: 0-086472-178-1 $?
[Sports and clubs] Winning the Red Tape Game/ by Paul David et al, Brookers, 2005
ISBN: 0-86472-530-2 $ 44.00
*Staples Tax Guide (2007 Edition)/by Craig Macalister et al, Brookers, 2007
ISBN: 0-86472-573-8 $ 124.00
2007 New Zealand Master Tax Guide, CCH NZ, 2007, ISBN: 9780864756527 $136.00
Guide to Taxing Internet Transactions/ Jillian Lawry, CCH NZ, 2000
ISBN: 0 86475 456 6 $72.00
New Zealand Master Trusts Guide, 2d ed/ John Brown, CCH NZ, 2005
ISBN: 0 86475 543 0 $72.00
Nevill’s Law of Trusts, Wills and Administration in New Zealand, 9th ed/ N Richardson,
LexisNexis NZ, 2004 ISBN: 0408714778 $95
Garrow and Kelly Law of Trusts and Trustees,6th ed/ N Kelly et al, LexisNexis NZ, 2005
ISBN: 040871638X $135.00
Trusts and Relationship Property/ by Kerry Ayers Brookers, 2003,
ISBN: 086472 464 0 $ 76.00
The Law of Torts in New Zealand/ by Stephen Todd et al, 4th ed, Brookers, 2005
ISBN: 0-86472-512-4 $ 168.00
Workplace Stress in New Zealand/by Andrew Scott-Howman, Brookers, 2003
ISBN: 0-86472-453-5 $ 68.00

Alan Edwards
Law Library, University of Otago
March 2007
alan.edwards@otago.ac.nz