Council of Law Reporting Act 1969


Competition Policy Review Report - Options for Reform


As noted in the Discussion Paper, the Act does not specifically prohibit other bodies from publishing general legal series and 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 apparently 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, at the time, 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, because the Act enables the Council to control the publication arrangements with respect to the printed paper version of the 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. The question is whether the publication of the 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.

In circumstances where a case has been published in more than one series of law reports, it is the policy of the courts to require the citation of cases from the authorised reports in preference to any other series. This policy is not officially recognised in the court rules or practice notes issued by the courts, but is long standing accepted practice. Another argument that might therefore 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.

The Discussion Paper canvassed a number of options and asked for submissions on these and a number of issues relevant to the Review. Comments were invited on whether the inherent objectives of the legislation are still valid and the effect developments in information technology have had on these objectives.

The options canvassed were in summary, as follows:

Option 1: Retain the status quo - The Council of Law Reporting would continue to determine authorised judgments and would control publication arrangements (that is, editing, the subscription process, deciding the publisher).

Option 2: The Council of Law Reporting would continue to determine authorised judgments, but would not control publication arrangements. Under this option, any publisher would be able to publish authorised reports through a licence agreement with the Council.

Option 3: The Court would provide judgments to publishers, who would control publication of the authorised reports. Under this option commercial publishers would decide which judgments are published and the level of editing (value adding). The Act would be repealed.

Option 4: The Court would publish all judgments. Under this option, the Court would publish all of the judgments and take on the value adding role of the Council. The Act would be repealed.

Fourteen submissions were received, half of which supported option 1 (refer to Appendix for details).