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Council of Law Reporting Act 1969
(ii) any summary extract or digest of any such reports; (iii) any other legal works relating to such reports; and The essential role of the Council of Law Reporting was discussed in the Parliamentary debates introducing the legislation. The Attorney General of the day stated that:
The Parliamentary debate also raised issues that are relevant to the current review of the Act in the light of the National Competition Policy. It was questioned whether it was appropriate that the Government control the publishing of the Reports, when perhaps this should be left to private enterprise. The justification by the then Government was, “It is true that activities of this sort could be left wholly in the sphere of free enterprise. We are dealing, however, with an activity by one of the great professions to bring, in a very professional way, a professional approach to a basic element of that profession. In a system of law such as our British system, in which the principle of stare decisis is deeply embedded and in which the individual decided case takes on a role of tremendous significance, it is important indeed that the whole of the law reports should conform to high standards of accuracy.” (Mr Cameron, Member for Northcott, ibid., p.766). Stare decisis, or the principle of precedent, encapsulates the established policy of the courts to abide by, or adhere to legally significant, decided cases. The doctrine is grounded on the theory that security and certainty require that accepted and established legal principle, under which rights may accrue, be recognised and followed, unless subsequently found to be not legally sound, or against public policy (Black’s Law Dictionary, 6th ed., 1990, West Publishing Co., St Paul, Minn., p.1406). In carrying out its role in reporting cases, the Council of Law Reporting consults with the judiciary and experienced members of the legal profession regarding which cases should be reported in accordance with the principle of precedent. Publication Arrangements in NSW and Other Jurisdictions and by the Courts New South Wales The New South Wales Law Reports (NSWLR) include judgments of the Supreme Court, Court of Appeal and Court of Criminal Appeal. Up until recently, the paper version of the NSWLR was published under an arrangement with a single publisher. However, instead of engaging the publisher under an exclusive contract, the publisher is now chosen following a tender process. As noted in the Discussion Paper, since January this year, the Council has offered to license the NSWLR to commercial publishers and other organisations who wish to work with the Council’s SGML database (SGML is an industry standard database language). The Council charges licensees a fixed fee for the data and leaves it to licensees to set publication prices. The Council also has pre-1999 reported judgments in electronic form and is also licensing this material to commercial 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 Victoria and Tasmania. 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 nor 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 may 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 benefit 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. 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. 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. ______ Report of the Competion Policy Review of the Council of Law Reporting Act 1969 ______ | Introduction | Background | Role of Council | Options | Option 1 | Option 2 | | Option 3 | Option 4 | Comment | Conclusion | Appendix | |
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