Council of Law Reporting Act 1969


Competition Policy Review Report - Conclusion


The Council of Law Reporting Act is not in of itself anti-competitive. However, in exercising its powers under s.7(1) of the Act, the Council has the discretion to restrict the terms of publication of authorised reports in whatever form they may be published, that is, electronically or in the traditional paper form of the NSWLR.

A view is developing in some quarters of the legal profession that the relevance of the paper version of the authorised reports and the reports themselves have already been considerably diminished by the increasing use of information technology. The 3-6 month delay in the publication of the paper version of the reports is seen as contributing to the diminishing value of the published reports.

Nevertheless, the restriction of the publication of the paper version of the authorised NSWLR to a single publisher is supported by the judiciary and the Bar Association on the basis that it is in the public interest to ensure the continuation of the series. At this stage, the judiciary and many practitioners consider that the NSWLR remains of fundamental importance as a medium of the common law.

While electronic publication may ultimately replace printed publication, it nevertheless remains unclear what impact information technology will have in the longer term and, indeed, when this medium may supersede the printed form. At this stage, it also remains uncertain whether other publications and electronic legal products will eventually make the authorised reports obsolete.

The introduction of medium neutral citation in the courts has facilitated the use of references to electronic publications. However, facilities to enable reference to electronic publications of the authorised reports are not likely to be available in courts for both judges as well as legal representatives in the near future. Citation of printed paper versions of the reports will therefore continue to be required by the judiciary.

As information technology develops, the role of the Council and paper based reports may diminish in relevance as practitioners search for and down load judgments from the Internet. Most superior courts now place judgments directly onto the Internet and many other jurisdictions, including the High Court, publish authorised reports without being underpinned by a statute.

In the meantime, it is considered that the Council has made a number of important changes to enhance the competitive process with respect to the authorised reports and to make its publication processes more transparent. The introduction of tender arrangements for the publication of the paper version of the NSWLR, and the decision to license the electronic version of the authorised reports to any publisher or organisation both facilitate competition. The re-introduction of a requirement that Council have its accounts audited will also increase the accountability and transparency of the Council’s activities.

At this stage, it is considered that the Council is best able to determine the appropriate publication arrangements, particularly given that the Council operates on a self-funding basis. It is therefore proposed that the Council retain its current discretion with regard to the method of publication of the authorised reports.

As noted above, the Act is not anti-competitive per se and does not breach the provisions of the Commonwealth Trade Practices Act 1974. Any perception that the exercise of the Council’s discretion regarding publication of the authorised reports has an anti-competitive effect had been adequately addressed by the Council’s revision of its policies in this area.

Nevertheless, given the rapidly developments occurring in information technology, it is also considered that it would be appropriate to undertake another review of the Act in five years, with a view to ensuring its provisions are of continuing relevance.