Autumn Drinks to celebrate developments in the reporting of authorised law reports published by the Incorporated Council of Law Reporting for England & Wales, and the Councils of Law Reporting in NSW and Victoria
By Justice Macaulay
10 May 2018
The challenges for law reporting in the early 21st century may be likened to the challenges for law reporting in the United Kingdom in the early to mid-19th century.
Leading to the early 1800s, more often than not judgments in England tended to be delivered orally rather than in any written form. Judgments were transcribed by law reporters (typically barristers) who attended court, heard the judgments delivered and then published them in what were known as the nominate reports. It was, in effect, a private enterprise system. It has been described as ‘hotch potch, commercial publication of law reports associated with the names of particular reporters’.
The system had its benefits but also had its deficiencies: the reporting of cases had a tendency to be arbitrary and unfiltered, it did not involve checking by the judges and thus could be inaccurate, and it lacked any overarching control or system.
In response to this situation, the Incorporated Council of Law Reporting (ICLR) UK was established in 1865. It was a council represented by members of the profession who selected cases for reporting, had them checked by the judges and published them in what became known as the Authorised Law Reports.
The advance of that system over the unfiltered, non-selective and unsystematised form of law reporting to that point was profound. Authorised reporting was systematic. Cases were selected on principled bases, generally because they contained some advance in legal principle. The reports were checked and approved by the court. They featured the value-added benefit of a headnote. And, they could be organised and indexed topically using a consistent taxonomy of legal subject matter.
Australian colonies, and then states, followed a similar model by establishing their own councils of law reporting composed of representatives of the profession and the judiciary. Such a model was established in Victoria in 1876.
There were many other new developments and changes to the system of law reporting throughout the 20th century. For example, as well as authorised reports, there developed a proliferation of specialist reports published by commercial publishers.
But still, all reports, whether authorised or not, were only available by subscription – that is, they were fee-for-service publications.
The real game changer came with the ‘free to air’ online law reporting services (e.g. Austlii, BarNet JADE, NSW Caselaw, etc.). Although said to be free, at least some come at an indirect cost through Government grant funding.
The availability of free to air publication of legal judgments may be described as contributing to the ‘democratisation’ of the law. That is, it contributes to a system of justice administration that is both more transparent and more accessible to citizens. In that regard, in my view, these developments are to be welcomed.
That ‘democratisation’ has been made possible because of the coincidence of a number of factors in the late 20th and early 21st centuries. Those factors include:
First, the increasing and now unexceptional practice of judicial officers producing written judgments in a digital form that is capable of being uploaded to an online platform immediately following delivery, checked by those who authored them;
Second, the funding for and construction of online internet platforms widely and freely accessible across the world-wide web; and
Third, and in tandem, the development of powerful search engines capable of being applied to the vast databases of judgments stored on those platforms using various kinds of search parameters.
But this democratisation has led to something else, something which takes us back to a characteristic that was prevalent in the early 19th century. The massive take-up of free online legal databases, as a tool of convenience, is contributing to the de-systemisation of the reporting of judgments. The online, free to air databases do not generally organise the material on any topical basis. No selection is made of what is to be reported, other than by the individual judicial officers who cause them to be uploaded. Important decisions advancing legal principle are reported alongside humdrum decisions of fact involving no application of principle, all in one undifferentiated mass. So, this situation may be described as a new form of ‘hotch potch’.
What free online databases have brought is a highly accessible but largely unfiltered and non-selective torrent of decisions from all levels of judicial hierarchy across almost every conceivable subject field. Research of the law deploying this resource is dependent on (1) the ability of the search engine to find key words, and (2) the proficiency of the user to choose appropriate key words and other search parameters to find a case relevant to the point of interest.
In my view – and it has been observed by other commentators – these changes have had an influence on the method of legal research; then on legal argument; and possibly even judgment writing. A word search conducted across a vast database of cases can return a batch of cases which illustrate the application of the principle identified by the word search in particular factual situations. It returns results by reference to words and language not by principle. Observations have been made that research using this method can lack depth. Worryingly, some anecdotal evidence suggests that lawyers are tending to ‘fact-match’ rather than ascertain and apply principles to facts. The results of such research are deployed in argument by reference to the factual similarity or dissimilarity of previously decided cases to the one at hand. If it persists, there is a danger this process might tend toward the ‘factualisation’ of the law contrasted with the search for and discovery of authoritative principle for its application to the facts at hand.
So, in short, the same technological advances that have produced the benefits of democratisation are, arguably, dynamically inter-related with the de-sytemisation of legal reporting and a tendency toward factualisation in legal research and case presentation.
It is against this background that I think we need the retention and preservation of a robust and user-friendly system of authorised law reporting as much if not more than ever. One that holds its own against the challenge of free to air services and responds to the changes in user choices in the electronic age. One that maintains the important elements of discerning case selection and the skilful crafting of succinct headnote summaries. But one that also takes advantage of the modern advances of online publication: speed of delivery and reach, search-ability, cross-linking to other databases, and options for a range of flexible and affordable delivery modes that suit different classes of user.
That is why the innovative developments recently made by the ICLR (UK), the New South Wales Law Reports and the Victorian Reports through Little William Bourke, are so welcome. As with the changes brought about in the mid-19th century, the model that each of them has adopted emerged from and involves a close association between the law reporting process and the profession itself. All three have stamped themselves as leaders in meeting the challenges I have mentioned. Against the trend of de-systemisation, each strives to preserve and revitalise the important role of authorised law reporting for the systematic development of the common law by principled selection and reporting of authoritative decisions. Each has responded innovatively to technological challenge and changing consumer demand.
The journey is not over, of course. Speaking locally, for example, even more can be done to achieve connections between the various repositories to reflect and enhance the development of the ‘one’ common law of Australia. There is ongoing conversation nationally on that issue. So, I congratulate each of them on what they have achieved to date and I look forward to further exciting advances. We are here tonight to acknowledge and celebrate the direction they have each taken and the fruits of their respective creativity and labour.
 The Hon Justice G Lindsay (judge of the Supreme Court of NSW), A Future of Authorised Law Reporting in Australia, paper presented to the Australian Law Librarians Association, 11 June 2013.
 See Michael Bryan, ‘The Modern History of Law Reporting’ (2012) 20 Australian Law Librarian 65.
 A general account of the landscape of authorised law reporting in Australian jurisdictions to the end of the 1990s, together with the usual rationale given for authorised law reporting and the stages through which the reporting process passes, is given by Naida J Haxton in ‘Law Reporting and Risk Management Citing Unreported Judgments’ (1998) 17 Australian Bar Review 84.
 Terry Hutchinson, ‘Legal Research in the Fourth Industrial Revolution’ (2017) 43 Monash University Law Review 567; The Hon Justice Stephen Gageler, ‘What is information technology doing to the common law?’ (2014) 39 Australian Bar Review 146.
 Hutchinson, 586.
Judge of the Trial Division of the Supreme Court of Victoria; Chair of the Council of Law Reporting Victoria; Chair of the Law Library of Victoria.
This is a revised edition of a speech given at Melbourne on 10 May 2018.
Also by Justice Macaulay, via the Supreme Court of Victoria: Speech given at the launch of the Victorian Reports 2016