National Competition Policy Review Discussion Paper


Council of Law Reporting Act 1969


2. Background to the Review

As part of its obligation under the Competition Principles Agreement, which was endorsed by the Council of Australian Governments in April 1993, the New South Wales Government is required to undertake a review of the Council of Law Reporting Act 1969. The Competition Principles Agreement dictates that legislation should not restrict competition unless it can be demonstrated that the benefits of the restrictions to the community outweigh the costs, and that the objectives of the legislation can only be achieved by restricting competition.

The review is also required to consider whether any of the provisions of the Act breach the Commonwealth Trade Practices Act 1974 (“TPA”). Part IV of the TPA prohibits a corporation from engaging in certain anti-competitive practices. Following the 1995 agreement of the States and Territories that competition laws should apply to State enterprises and the activities of State based businesses, the Competition Code was applied to the States. The Competition Code is in substantially the same terms as Part IV of the TPA.

The provisions of Part IV of the TPA that are relevant to this review include s.45, which prohibits the enforcement of exclusionary provisions, whether or not they are anti-competitive, and arrangements which have the effect of substantially lessening competition. Section 45B proscribes covenants which have the effect of lessening competition. As of 20 July 1998, State statutes need to expressly authorise any activities which may contravene Part IV to protect them from challenge.

The review of the Council of Law Reporting Act will consider whether the current regulation of the publication of reports unnecessarily restricts competition and, if so, whether there are sufficient public policy reasons for retaining the restrictions. Specifically, the focus of the review is whether the Council should retain its apparent monopoly on the publication of authorised cases.

An important further issue to assess is the impact of developments in information technology on the role of the Council and “authorised reports”.


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