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Rares, Justice Steven --- "The future of law reporting in Australia forum - introductory remarks by the Hon Justice Steven Rares" (FCA) [2012] FedJSchol 11
THE FUTURE OF LAW REPORTING IN AUSTRALIA FORUM
2
AUGUST 2012 BRISBANE
Introductory remarks by the Hon Justice Steven
Rares
Chair of the Consultative Council of
Australian Law
Reporting
- 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.
- 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.
- 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.
- 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.
- 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.
- 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].
- 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.
- 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].
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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?
- 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.
- 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.
- 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.
- I
hope that we can have a constructive engagement during the course of what
promises to be a stimulating conference
today.
[1] Lord
Millett: Review of Edmund Heward: Lives of the Judges: Jessel, Cairns, Bowen
and
Bramwell: Barry Rose Law Publishers, 2004 in 121
LQR 681 at 684 in 121 LQR at 684
2 Susan Barker: Law Reporting in England and
the United States: History Controversy and Access to Justice: 2007
Canadian Law Library Review; Vol 32 (No 4)
178
[3] Barker:
op cit at 179
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