Council of Law Reporting Act 1969


Competition Policy Review Report - Comment


For the reasons outlined above the various heads of jurisdiction and the Bar Association of NSW have universally indicated their preference for the retention of the Council and its role in its current form.

The concerns of the judiciary and the legal profession are principally focused on the retention of the paper version of the NSW Law Reports. The profession’s concerns reflect those that originally prompted the establishment of the Council, that is, the need to keep the cost of reported judgments to a minimum, to preserve the system of reporting cases that have legal relevance, and to maintain high standards.

Submissions in support of other options focused on the argument that publishers are equally as capable as the Council in adding value to the reported judgements and that competition between commercial publishers will ensure high standards and selectivity.

In addition, these submissions argued that the Council’s role is increasingly irrelevant. This is because the quality of what is published is regulated by the fact that the courts are now publishing their “raw” decisions in a far more complete, consistent and reliable form because of the immediacy of electronic publishing of the court’s decisions. Thus, the editorial role of the Council has diminished.

The proliferation of specialist series and loose leaf series has also meant that the importance of the authorised series has diminished in terms of its relevance as a research and reference tool.

The Competition Policy Review principles require that consideration be given to whether the benefits of any restriction on competition to the community as a whole outweigh the costs; and whether the objectives of the legislation can only be achieved by restricting competition.

The great majority of submissions did not consider the Act per se to be anti-competitive. However, it was acknowledged by some respondents to the Discussion Paper that s.7(1) of the Act, which provides, inter alia, that the Council may prepare, publish and sell or arrange for the preparation, publication, and sale of reports, gives the Council a discretion to establish exclusive licensing arrangements in respect of the NSWLR. It was also suggested that the concept of “authorised reports” is anti-competitive by virtue of the fact that these reports remain the accepted citation in courts.

At the same time, submissions received from the judiciary support the need for the maintenance of the authorised reports both as a historic record and as a means for recording decisions of legal importance. The judiciary and the Bar Association also indicated support for the restriction of publication of the paper version of the NSWLR to a single publisher. The argument in support of this approach largely relates to the need to ensure that the cost of subscriptions to the authorised reports is kept to a minimum. These costs might otherwise be passed on by the profession to clients.

In addition, concern was expressed that the market may be insufficient to support the publication of more than one series of reports, with the result that some series may be discontinued. As noted in the Discussion Paper, concern to ensure that the cost of law reports is kept to a minimum, and that law report series continue to be published, were underlying objectives in introducing the legislation.

At this stage, there is no specific data to support this concern. Some submissions argued that the commercial reality is that, if publication of more than one series of authorised reports was not viable, no publisher would enter the market - therefore the current restriction on the publication of printed reports to one publisher is not required.

Any assessment as to whether it is necessary to restrict the publication of the paper reports to a single publisher for reasons of economic viability, would require a detailed knowledge and economic assessment of the market. The Department is not in a position to make such an assessment.

The Council has recently endeavoured to address any concerns that its approach to the publication of the authorised reports may restrict competition. While the Council has continued to restrict the publication of the printed reports to a single publisher, this contract will, in future, be arranged by a tender process.

In addition, as noted above, since January this year the Council has offered to license the NSWLR to any commercial publishers and other organisations who wish to work with the Council’s SGML database. The Council charges licensees a fixed fee for the data and leaves it to licensees to set publication prices.

A separate point that might be made though is that the Council is not subject to the Annual Reports (Statutory Bodies) Act 1984, although it does provide the Attorney with a report of its activities each year. The Act originally contained a provision (s.11) requiring it to have its accounts audited annually in accordance with the Audit Act 1902. However, s.11 was repealed along with that Act in 1983 and was not replaced with any other requirements regarding the Council’s accounts.

While it is understood that the financial dealings of the Council are not particularly complex, it would seem appropriate for reasons of transparency, and in order to assess the ongoing costs of the activities of the Council, that it be required to have its accounts audited annually and that a copy of the auditor’s report be provided to the Attorney General.