LSB September 2018_Web

FEATURE
to acknowledge the reality of courtroom
practice and the availability of electronic
materials that are free to access.
It is also consistent with the notion of
the need to “democratise” the law by
making case law readily available at no
or minimal cost, as opposed to access
to authorised versions becoming a “rare
commodity” only available to the “upper
echelons of the legal profession”. 14
LEGISLATION
At this stage it is important to contrast
the availability of legislation, the other
main source of law in Australia, with the
above case law experience.
Legislation and legislative instruments
are freely available online from various
Commonwealth or State Offices of
Parliamentary Counsel or their equivalent
in various jurisdictions.
In most Australian jurisdictions the
online version of the legislation is also
verified as the authorised version of
legislation and has evidentiary value.
The first jurisdiction to enable authorised
legislation to be available online at no cost
was the Australian Capital Territory in
September, 2001 followed by many other
Australian jurisdictions. 15 An example is
Commonwealth legislation, which is freely
available from the Federal Register of
Legislative Instruments with “authorised”
PDF formats identified with a red tick.
South Australia is the jurisdiction to
most recently make available authorised
electronic versions of legislation from
August, 2017. These “authorised” PDF
versions are identified with a blue tick.
Historically, publication of authorised
versions of legislation in Australia have
remained in the hands of Parliamentary
Counsel or and/or associated government
publishers. Hard copy publications are
still available at a modest cost however the
need to access such versions is vanishing
due to the availability of online authorised
versions at no cost.
By contrast, authorised versions of
case law have remained the domain of
legal publishers. At some point in time,
authorised reports “were comparably
priced with other forms of reporting” 16
and were important for the purpose of
ensuring accuracy and an organised system
of citation, 17 however these aspects are
adequately addressed by the freely available
counterparts for reasons mentioned above.
THE WAY FORWARD
Comparing the case law experience in
Australia with that of legislation makes
obvious the difference in access and
availability to the two main sources of law
in Australia.
Both sources of law are equally important
in the administration of justice. There are
no cost barriers to accessing authorised
versions of legislation in most Australian
jurisdictions, yet the cost barriers remain in
relation to accessing authorised reports.
Convention and practice directions
continue to require reference to authorised
reports however it is time for the courts
to “respond by changing with the new
socio-legal cultures that technology has
brought.” 18
One way to do so is to follow the
approach taken by the Federal Circuit
Court.
This does not necessarily have to render
the role of legal publishers irrelevant;
rather it encourages them to focus
on providing high quality analytical
materials and commentary to assist in the
interpretation and application of the main
sources of law.
According to Justice Lindsay, the content
and form of the legal material we consult,
produce and value and “the availability,
accessibility and content of reports of the
processes, and decisions, of Australian
courts are central to the concept of ‘law’ in
Australian society.” 19
The above analysis and suggestions
represent the need to acknowledge the
courtroom reality that freely available
online legal content is the main legal
resource used by most legal practitioners
and that this is consistent with the ideal
of equity in access to the two primary
sources of law in Australia – case law and
legislation. B
Endnotes
1 University of Melbourne, Library Guides (List
of practice direction links): http://unimelb.
libguides.com/c.php?g=403069: Federal Court:
Lists of Authorities and Citations Practice Note
(GPN-AUTH); Supreme Court of New South
Wales: Practice Note SC Gen 20 - Citation of
Authority; Supreme Court of Northern Territory:
Practice Direction No 2 of 2007 - Citation of
Authority; Supreme Court of Queensland: Practice
Direction No 16 of 2013 - Citation of Authority;
Supreme Court of South Australia: Consolidated
Practice Directions para.5.6.4; Supreme Court
of Tasmania: Practice Direction No 4 of 2009 -
Citation of Judgments; Supreme Court of Victoria
Practice Note 9 2011: Citation and provision
of copy judgments to the Court and opposing
counsel; Supreme Court of Western Australia –
Consolidated Practice Direction para.2.1.14
2 University of Melbourne, Library Guides:
http://unimelb.libguides.com/c.php?g=403069
3 In the absence of a subscription, the alternative
option is to obtain a copy from the court library, at
a cost.
4 See South Australian Supreme Court Practice
Direction 2006 5.6.5.3 which requires each
authority to be hyperlinked to the online authorised
version if it is available to the party delivering the
list, as well as to the freely available medium neutral
version of the case (if available).
5 See Federal Court of Australia - Lists of
Authorities and Citations Practice Note (GPN-
AUTH) – Practice Note 2.2 which sets out that
because a List is ordinarily filed electronically via
eLodgment, parties should prepare the List in
electronic form in such a manner so as to hyperlink
each case citation to an online resource (so that the
full case is easily accessible via the hyperlink).
6 Lists of Authorities and Citations Practice Note
(GPN-AUTH): Update: Hyperlinks to case
citations in Lists of Authorities
7 Ibid (emphasis in original).
8 Robert Berring “Chaos, Cyberspace and Tradition:
Legal Information Transmogrified” (PDF) 12
Berkley Technology Law Journal 189 (1997) at 202.
9 Ibid.
10 Grant T Riethmuller “Improving the Use of
Court Decisions in the Federal Circuit Court”,
Conference paper presented by Judge Grant
Riethmuller at the Law via the Internet 2015
Conference - 10 November, 2015: http://www.
federalcircuitcourt.gov.au/wps/wcm/connect/
fccweb/reports-and-publications/speechesconference-papers/2015/paper-riethmulleraustlii-2015
11 Ibid 4.
12 No.1 of 2015 Citations of decisions of Australian
Courts and Tribunals – AustlII: http://
www.federalcircuitcourt.gov.au/wps/wcm/
connect/fccweb/rules-and-legislation/practicedirections/2015/012015
13 Riethmuller, above n 10, 6.
14 Riethmuller, above n 10, 1, 5.
15 Michael Rubacki, Online legislation from Australian
Governments: achievements and issues” prepared
for AustLII Research Seminar, 7 May 2013: http://
www.austlii.edu.au/austlii/seminars/2013/1.pdf
16 Riethmuller, above n 10, 5.
17 Riethmuller, above n 10, 5.
18 Riethmuller, above n 10, 3.
19 Lindsay, Justice Geoff “The Future of Authorised
Law Reporting in Australia – The Australian
Law Librarians Association” [2013] NSWJSchol
21(Paper, Australian Law Librarians Association:
11 June 2013) at 1: http://classic.austlii.edu.au/au/
journals/NSWJSchol/2013/21.html
September 2018 THE BULLETIN 39