National Competition Policy Review Discussion Paper


Council of Law Reporting Act 1969


7. Publication of Law Reports in Australia

New South Wales

The New South Wales Law Reports (“NSWLR”) include judgments of the Supreme Court, Court of Appeal and Court of Criminal Appeal. The Council has adopted the following criteria to select which judgments are reported in the NSWLR:¹⁴

· a case which introduces a new principle or new rule of law;

· a case which materially modifies an existing principle of law or settles a doubtful question of law;

· a case which applies an existing principle in a novel area;

· a case in which the language of legislation is definitively interpreted;

· a case in which clauses, phrases or words in common use in documents (eg. wills, contracts, insurance policies...) are construed;

· all cases which for any reason are particularly instructive.

Headnotes for the reportable decision are prepared by a reporter, reviewed by the editors and forwarded to the judge for comment. All judgments are edited and verified for accuracy of citations and quotes. The approximate timeframe between when judgments are given to the Council to consider and publication is three to six months.

The number of cases that have been considered by the Council in recent years, and the amount that are actually published is set out in the table below. Currently, the Council only publishes approximately ten percent of the cases it considers:

Year	Cases considered by the Council	Cases published by the Council
1997/98 1996/97 1995/96 1994/95 1993/94	897 1028 1170 1092 889	88 105 94 105 137

The NSW Council of Law Reporting publishes the New South Wales Law Report in paper form under contract with a single publisher, which prints and distributes the Reports. The NSWLR is also published electronically under a non-exclusive licensing agreement whereby Butterworths publishes and distributes the Reports in electronic form.

When it was originally established, the Council negotiated the level of fees for editors, reporters and the cost of subscriptions. Under the agreement with the publisher, any increases in these costs or fees are restricted to the increases in line with the Consumer Price Index.


Publication of Judgments by the Courts

The NSW Supreme Court has recently begun to provide electronic access to all of its judgments via the Internet using LawLink, the Attorney General’s Department web site, and AustLII, which is funded by grants from the Australian Research Council, the Law Foundation of New South Wales, the Council for Aboriginal Reconciliation, the Department of Foreign Affairs and Trade and other bodies.

The Supreme Court has adopted medium neutral citation for all judgments handed down after 1 January 1999. This new system, which was originally adopted by the High Court, can be used to identify a judgment, regardless of whether it is in paper or electronic form. The system is gradually being introduced by courts around Australia. For those judgments to which it applies, the citation sources the judgment to the court from which it originated, rather than a series of reports. However, the NSW Law Reports remain the proper citation for published judgments for use in the courtroom and court documents.

Under an arrangement between the court and the particular publisher, judgments of the High Court of Australia, and the Federal Court of Australia are printed, published, priced and distributed by the publisher. The High Court and Federal Court reports are authorised and, where a case has been reported in the CLR or FCR, the report in that series should be cited to the court. The publisher also publishes judgments electronically. The High Court publishes its unreported judgments on the Internet free of access charges.

A number of other jurisdictions, including the Family Court of Australia have similar arrangements for paper and electronic publication of judgments with publishers.

Other Australian States and Territories

Outside NSW, law reporting arrangements differ between Australian jurisdictions and the only other States to have specific legislation providing for the establishment of Councils of Law Reporting are Victoria¹⁵ and Tasmania.¹⁶ Councils in some jurisdictions act as advisory bodies to the government, with contractual arrangements being overseen by the relevant department administered by the State Attorney General.

For example, in Western Australian the Law Reporting Advisory Board, which is neither a statutory body or incorporated, provides advice to the Attorney with respect to law reporting. Currently, the Advisory Board in WA effectively controls the editorial function, but the publisher controls the pricing of subscriptions and editorial and reporting costs. However, the WA legislation has recently been the subject of a National Competition Policy Review. The Review recommended that:

1. The current system under which law reports be published without prior written approval of the Attorney General be replaced with a negative licensing system that gives blanket authorisation to anyone to publish law reports, while preserving the Attorney General’s right to revoke, vary or withdraw authorisation. It also recommended adoption of a less restrictive tender process and contractual period for arrangements under which the series of authorised reports are published.

2. The current practice of selective invitation and awarding of a ten year contract for publication of the authorised reports be replaced with a widened tender process and a reduction of future contract periods to five years.

The benefits of a legislative restriction on the publication of law reports was found to arise through the maintenance of the integrity of judicial processes utilising published judgments. This was assessed as outweighing the small costs associated with potential reduced innovation and availability of law reports.¹⁷
The Incorporated Council of Law Reporting for the State of Queensland was set up under the Companies Act Amendment Act 1889. It was granted a licence directing that the Association be registered with Limited Liability under the Companies Act 1863, without the addition of the word “Limited” to its name. The Queensland Reports and the Queensland Law Reporter are published, printed and distributed by the Incorporated Council for Law Reporting, which has full control of editorial functions and pricing of subscriptions. The Qd R are published electronically under a non-exclusive licensing agreement.

In Victoria law reports are published in paper form under a contract with a single publisher, whereby the Council retains control of editorial functions and pricing of subscriptions. Law reports are published electronically under a non-exclusive licensing agreement.

The Northern Territory Council of Law Reporting is an incorporated body under the Associations Incorporation Act (NT). In the Northern Territory and Tasmania law reports are printed, published and distributed in paper form under contract with the publisher. While the Council retains control of the editorial function, the publisher controls the pricing of subscriptions and distribution.

In South Australia law reports are published under a licensing arrangement between the State’s Attorney General’s Department and publishers. The control and remuneration of the editorial function and pricing of subscriptions are controlled by the publishers.

In the larger jurisdictions, the production of authorised law reports is a commercially viable proposition. In some smaller jurisdictions (Tasmania and the Northern Territory), the government has been required to subsidise the publication of authorised law reports.

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¹⁴ Excerpt from Haxton, NJ, Manual on Law Reporting, The Federation Press, 1991, p11.
¹⁵ Council of Law Reporting Act 1967
¹⁶ Council of Law Reporting Act 1990
¹⁷ The information concerning the WA review was obtained from the WA Treasury website: http://www.treasury.wa.gov.au/cp/western-australia.htm.


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