National Competition Policy Review Discussion Paper


Council of Law Reporting Act 1969


9. Options for Reform

The second reading speech and Parliamentary debates introducing the Act in 1969 noted the concerns of the then Government to ensure that law reports were published efficiently, accurately, and at the lowest cost possible. The Parliamentary debates also recognised that the legal principle of stare decisis forms part of the legal system in New South Wales, and requires the selection of cases for publication.

The Competition Principles Agreement requires that the legislation be re-examined with a view to determining whether the legislation might now be considered to unduly restrict competition. As noted in section 1 of this paper, any restriction on competition will not generally be acceptable, unless it can be demonstrated that the benefits of the restriction to the community as a whole outweigh the costs, and the objectives of the legislation can only be achieved by restricting competition.

The Act does not specifically prohibit other bodies from publishing general legal series and, as previously noted, it is open to anyone to publish unreported judgments, which may eventually be recognised as authorised series by the courts. However, in introducing the legislation, the Government, with impetus from the legal profession, appears to have intended that the reporting of authorised reports be solely undertaken by the Council of Law Reporting established by the Act. Consequently, it would seem reasonable to say that the Government intended that the Council be seen as the legitimate body for determining reportable cases.

The question might then be asked whether the Act, in establishing the Council as the body determining reportable cases, has the effect of restricting competition. Should other, non-statutory bodies, including publishers, be empowered to determine which cases are reportable, or does the need to maintain consistency in reporting criteria and standards necessitate that this be undertaken by a single body?

Further, as discussed in section 7 of the discussion paper, because the Act enables the Council to control the publication arrangements with respect to authorised reports, it might be argued that the Act potentially restricts the free market for the publication of authorised law reports in New South Wales. For example, while the Council currently allows the electronic publication of reports under a non-exclusive licensing agreement, the printed publication of law reports is presently restricted under an agreement, whereby the reports are published exclusively by a single publisher.

The question is whether the publication of authorised reports should be automatically open to any organisation that pays a licence fee, or whether the Council should retain a discretion, which would, in certain circumstances, enable it to determine how publication of the authorised reports should be arranged. (For example, the Council may decide not to license a particular publisher which demonstrated poor editorial standards).

Another, more radical, argument which might be advanced is that the continued tradition and concept of “authorised” reports (which is to some extent underpinned by the Act) is in of itself a restriction on competition. For example, would it be preferable to abolish the Act and the Council and simply leave it to publishers to determine what judgments should be published.

In this context, it is noted that any assessment of the proposals also necessitates consideration of current and future technological developments as they relate to both the profession and the public. Factors to be considered include breadth and speed of access, cost, and quality of information and service in the printed and electronic mediums. As previously noted, the NSW Supreme Court has recently begun to provide electronic access to all of its judgments via the Internet. While only recent judgments are available via this medium, in future, all judgments will be available almost immediately over the Internet. Given the change in technology, it must be asked whether the current approach of providing “authorised” reports is still relevant, or whether they are needed in their current form.

In the context of this review, there are a number of options for change which might be considered. An important issue to consider in assessing these options is the competing needs of the general public and the legal profession. The general public has an interest in a system which provides access to the law in its broadest sense. The legal profession has an interest in a system which provides access to a selection of authoritative cases that have legal significance, and which enables legal research to be undertaken effectively and efficiently.

Option 1 - Retain the Status Quo: Council determines authorised judgments and controls publication

Under this option, the Council would continue to exercise its discretion regarding reportable judgments and the arrangements regarding the publications of “authorised reports”. The process would continue as at present, that is:

1. Judge writes judgment.

2. Court provides the Council of Law Reporting with some of these judgments.

3. The Council selects which judgments to publish, and edits these.

4. Publication of selected judgments by the publisher(s) contracted with the Council.


Advantages

• Only a very limited selection of cases are included in the authorised reports. The selection is by lawyers which means that cases that do not fit the “legally-significant criteria”, but are none the less of interest to members of the public are not reported.

• The Council may exert control over the standard of publication of the authentic text and publication arrangements, as it sees fit, subject to the direction of the Attorney General.

• The criteria used by the Council ensures that the legal profession and other readers are getting legally significant cases. Consequently, legal research is more efficient.

• The Council may exercise its discretion regarding publication in an way that prevents open competition in relation to the publication of law reports.

• Approximately 90% of judgments are not reported in the NSWLR. Accordingly, it might be argued that, in some instances, legal issues, which have already been decided, are not reported and have to be re-researched by practitioners.

• Some of the same advantages and disadvantages as option 1 above apply. However, the publication of authorised reports would automatically be open to any body on payment of a licensing fee. The fee would need to be sufficient to cover the costs of the Council.

• The Council would not be able to reinstate controls over the publication of reports in any circumstances.

• This option creates a competitive market, which may result in lower prices and faster publication.

• It is likely that more cases will be reported. This may assist legal practitioners, especially where there is no specialist series relating to a particular area of law.

• This option gives the publishers too much control in deciding what to publish, for example, they may choose not to publish a case that does not support their interests.

• Over-reporting by publishers may mean excessive legal research is required by the legal profession and increased prices for printed series.

• The quality is not regulated and there is no uniformity in standards.

• This option has similar advantages and disadvantages to option 3 above.