Future of Law Reporting in Australia Forum 2014 and
2014 Annual Conference of the Consultative Council of Australian Law Reporting
High Court, Canberra
This meeting of the Council has been convened here at the High Court at the invitation of the Council of Chief Justices. We are honoured by the presence of the Chief Justice of Australia, the Hon Robert French AC, who is shortly to address us.
I would like to thank, on behalf of the Council, his Honour, the High Court and its chief executive, Andrew Phelan, for making today’s meeting possible. I must also acknowledge our collective debt and thanks to the workhorses who have done so much behind the scenes, Jason Rogers of the Queensland Incorporated Council for Law Reporting, Jules Mortenson who is Andrew Phelan’s tireless executive assistant, and the indefatigable Fiona Hopkins of the NSW Council for Law Reporting.
We have present representatives of the various interest groupings concerned with authorised and other law reporting both in Australia and New Zealand. The reason that we are here today is because each of us is concerned with differing aspects of providing access to the judgments of Australia’s superior courts in one medium or another.
The phrase “access to justice” has a particular resonance for us, for that in a real sense is what each of us seeks to provide or facilitate. Reasons for judgment are the authoritative exposition of a Court’s justification for its exercise of the judicial power of the State. This is a vital governmental power. Because judges are not elected and have security of tenure, they must justify, transparently and publicly, how and why they have used the powers conferred on them by Parliament to quell controversies and decide cases. Judgments are not simply words. They are, fundamentally, explanations to the community of what the law is that applies to a dispute and how and why that dispute is finally and authoritatively resolved by the third arm of government.
Just as the other two arms of government, being the legislature and the executive, create written laws and regulations of general application, the judicial arm records its individualised resolutions of concrete disputes, which have two aspects; first, the court decides the legal rights of each party in accordance with law, but secondly, it expounds and applies the law in its reasons. Sometimes, a judgment will break new ground in its distillation or explanation of how the written, and or the unwritten, general law – i.e. common law or equity – has allocated rights and responsibilities in a factual context. That is one reason why reasons for judgment can have an importance beyond the immediate issues confronting the parties. The reasons themselves can be a source of law because they declare what the law is and why.
Nearly every decision of the High Court will have signal importance in our nation because it will be the final judicial determination of the law in a particular subject matter. Other courts contribute to an understanding of what the law is, albeit that this is in a sense provisional because the High Court may correct it. Maule J reputedly once said in the mid-nineteenth century that: “Everybody is presumed to know the law except His Majesty’s judges, who have a Court of Appeal set over them to put them right.” (Glanville Williams: Criminal Law: The General Part (2nd ed 1961) at 290)
Authorised law reports have existed for only 149 years. They have an important role in the administration of justice. This is because, first, they have been revised and corrected by the Court whence the decisions came. Secondly, a reporter has selected a judgment as having a significance that merits its report, and has created a headnote that distils the essence of what that case decided. Sometimes the reporter will summarise the arguments of the parties as in the CLRs, NZLRs and Qd Rs. Often the judges will contribute to the accuracy of the headnote.
As we know, other, non-authorised, reports of cases that also have headnotes are published. Headnotes contribute to the ready understanding of what a case decides and, now that medium neutral paragraphs are used, with the unfortunate except of the CLRs, can identify exactly where the reader should go in the reasons to find the ratio decidendi of a case.
One of the key themes for today’s meeting is to explore how the Courts might contribute to the use and availability of authorised reports in a way that can integrate the various platforms on which they are available in the new cyberworld in which we have become immersed over the last 20 years.
After last year’s meeting, the Law Council of Australia prepared a report that it kindly provided to this Council. This report concluded, as a general theme emerging from its consultations with its stakeholders, that the system of authorised reports remained of great value to the legal profession. I think that that is also the general view of Australia’s superior courts.
The purpose of today’s meeting is to explore the feasibility of a new model for the dissemination of authorised reports, adapted to the vast potential opened up by the internet and its possibilities for electronic research. Such a model must serve the public interest of access, at a reasonable and low cost, to reports that the Courts regard as the most reliable and helpful, while keeping the law reporting profession and publishers economically viable. The model should also be able to open up the potential for the various providers of authorised and other reports as well as raw case law to interconnect with each other.
A suggested framework sees the Courts as having control of the interface or delivery vehicle and the pricing of downloading PDFs of authorised reports from that interface, but leaving the various providers free to pursue their own arrangements for access to their products or services and interconnection to those of others. The public and the profession, however, would always be able to access any authorised reports through the Court-controlled interface. Anyway, that is the matter we wish to explore in the sessions after morning tea with the ambition of establishing a workable way forward as a result of our discussions.
The Chief Justice has very kindly offered to host this meeting here and to address us. On behalf of the Consultative Council, I would like to thank him for the interest and leadership he has shown in this important area for the enhancement of the rule of law. Law reports are, after all, one of our most vital tools of trade.