The Future of Law Reporting in Australia Forum

Introductory remarks by the Hon Justice Steven Rares

Chair of the Consultative Council of Australian Law Reporting

The Future of Law Reporting in Australia Forum
2 August 2012
Brisbane

RTF version

1.   The idea for this conference emerged at the Consultative Council of Australian Law Reporting’s annual meeting in Darwin on 27 May 2011. It combines foresight, introspection and interaction among the principal participants in the production, dissemination and use of the judgments written by our nation’s superior courts.

2.   We are privileged to hold today’s event in this magnificent new Queensland Supreme and District Court complex through the generous support of the Chief Justice of the Supreme Court of Queensland, the Hon Paul de Jersey AC.

3.   The purpose of the conference is to discuss the implications of the relatively recent developments both in Australia and internationally in the fields of judgment and legal publishing. As with many areas of our daily lives, the internet has brought together the Courts, the legal profession, the legal publishers, charitable, (being councils for law reporting, commercial and publicly sponsored) and consumers of judgments, in the form of the academy. This combination has been involuntary. It has made us change, and examine, how and why decisions made by our courts are used and disseminated.

4.   The Council’s aim is that this conference will stimulate a dialogue and a search for a way forward that can accommodate the conflicting current needs and demands of those whose interests are represented here today.

5.   On an occasion such as what will happen tomorrow, in 1882, Queen Victoria was to attend the opening of the newly constructed Royal Courts of Justice at the Strand in London. The judges discussed the proposed address to be given by the Lord Chancellor. The draft commenced “Conscious as we are of our own shortcomings”. This did not please the Master of the Rolls, Sir George Jessel, who retorted that he was not conscious of any shortcoming on his own part. Lord Justice Bowen interjected, as an appellate judge might be wont to do, that it might be more accurate to say: “Conscious as we are of each other’s shortcomings”^[1]. One thing open justice, online judgment and law reporting does is to reinforce that consciousness.

6.   Our tradition of law of law reporting dates to the publication of the Year Books commencing in 1283 in the reign of Edward II. These were manuscript collections of case decisions recorded by anonymous scribes or apprentice lawyers in Law French, initially, and sometimes in Latin. These continued until 1536 during the reign of Henry VIII^[2].

7.   Lord Neuberger of Abbotsbury has written that according to Blackstone James I appointed two law reporters with “a handsome stipend”. From this the nominate reports grew. These had a variable quality and no doubt different reporters, like those in the fourth estate, delighted in reporting the foibles, and judicial criticism, of their competitor reporters.

8.   Ultimately, in England and here a system of authorised law reporting emerged. In 1865 the English Incorporated Council commenced publishing reports with the aims, identified two years earlier by Nathaniel Lindley QC, of selecting cases carefully for publication that met one or more of four criteria, namely that they were cases that:

• introduced or appeared to introduce, a new principle or rule;
• materially modified an existing principle or rule;
• settled, or materially tended to settle, a question on which the law is doubtful; or
• were for any reason “peculiarly instructive”^[3].

9.   Not everyone here will see the need for those goals to be met by what they do. We have seen the legal profession develop rapidly in recent years from proud generalised practice into finely attuned areas of speciality. Law reports have followed in various areas of specialisation.

10.   The principles of open justice have required our courts to do their work and explain their decision-making in public. In an age before news was as readily available as it is today, printed law reports were the essential means of passing down the significant decision of the Courts.

11.   The challenge that the instant and pervasive presence of the internet has thrown up is to find a means of sifting the wheat from the chaff of the available judgments.

12.   Law reporting has provided that filter in the past. Purists can, and do argue, that internet search engines can, and individual user’s selection of search terms will, enable a more effective selection process to occur. However, many judgments are not reportable or notable because they do, what we expect them to do – apply settled rules of law or statutory interpretation to facts in an uncontroversial and conventional way. I hope that, at least occasionally, I have been guilty of being that boring.

13.   The Courts need to have the assistance of well-known, readily locatable, leading decisions in a collection of work that synthesises and distils the essence of what the judge or judges have determined. The media neutral citation case downloaded from the internet as the latest application of authority does not help anyone in the professional discipline of ascertaining or deciding what the law is or should be unless that case says something new. However, legal publishing must now compete and adapt to the new entrant in the legal information universe, being the internet.

14.   Another feature that has thrown up a challenge to the viability of law reporting is the ever changing and exponentially expanding statute web site. It is no longer a statute book. You now check to see what version of a thousand page or more morass of parliamentary language happened to be in force on the day of an offence, a transaction, conduct or an administrative decision. Governments no longer print this material. Yet, less than 40 years ago, the 1973 reprint of Commonwealth Acts fitted into 11 neat volumes. Appallingly, some statutes today could match that.

15.   This means that many more cases are decided on statutory construction of an Act that is as evanescent as a breath of fresh or, perhaps, more musty air. Literally, the statute law is here today and gone tomorrow. So reporting decisions about important questions under particular Acts becomes a problematic exercise. Will the Act remain in this form? Is the decision in a particular case simply of a few months’ useful shelf life? How do law publishers and purchasers of their products justify reporting a decision that ceases to have any relevance beyond perhaps a few months’ long window while the wording of the statute was in force?

16.   Additionally, academics must teach “the law”, practitioners and the public must be able to find those judgments that expound and elucidate the law, and critically the decision-makers – the Courts – must be able to identify readily and rely on the important cases. The work of law reporting is to do just this. It is vital.

17.   There are two issues that I would like to raise. First, if the only means of access to judgments in the future is the internet, how secure is the content? An authorised report, even if our future no longer has printed book or expensive wallpaper, will be a permanent and unalterable record. But can judges or the public be assured that someone will not hand up, or manipulate on line, a judgment so that its text suits the ends of a litigant, or lawyer, for a case. Urgent injunctions or similar matters can be decided on the basis of what courts are given or can access in a short time. Where a lot is at stake, a permanent record of a judgment is important.

18.   Secondly, would it not be possible to accommodate the Courts’ needs by having links to authorised or other series of reports on the AustLII and similar free sites? The publishers could charge a small fee, and pay the sites a royalty. Users could be told that it is essential, if the decision is to be cited in court, to use the authorised reports or, if no authorised report is published, an unauthorised report that can be cheaply and easily downloaded.

19.   I hope that we can have a constructive engagement during the course of what promises to be a stimulating conference today.