Council of Law Reporting in Victoria Act 1967

Council. The body corporate called “The Council of Law Reporting in Victoria”. It is not a government agency, though it includes the Attorney‑General and Solicitor‑General as ex‑officio members. It has perpetual succession and a common seal and can hold property, contract, sue and be sued. Its composition is set by section 5: a judge of the Supreme Court appointed by the Chief Justice as Chairman, the Attorney‑General, the Solicitor‑General, the Librarian of the Supreme Court (all ex officio), two members appointed by the Law Institute of Victoria Limited, and two members appointed by the Victorian Bar Inc. The Attorney‑General and Solicitor‑General may nominate substitutes for meetings. This composition ensures both the judiciary and the legal profession have a voice, but it also means the Council is dominated by stakeholders who may have conflicting interests in controlling the law‑reporting market.

Monopoly on law reports. Section 10(3) is the central concept. It makes it unlawful for any person other than the Council to publish “any reports of judicial decisions of any court in Victoria” without the Council’s consent. The only exceptions are news reporting in periodicals or by broadcast/film. The concept of “reports of judicial decisions” is not defined. It presumably covers headnotes, catchwords and full text judgments, but may also extend to summaries or digests if they are presented as reports. The Act does not say whether single judgments or selective reporting are covered. “Publish” includes inclusion in a computerised data bank, so sending judgments to online legal databases without consent is prohibited. The Council can grant or withhold consent on any terms it thinks fit. There is no statutory right of review of a refusal.

Existing Council and vesting. The Act converts the pre‑existing unincorporated association into a statutory corporation without interruption. All property, contracts and liabilities are transferred automatically. The old members and former members are released from liability. This concept avoids the need for formal assignments or transfers, and it ensures continuity of the Victorian Reports and other existing publications.

Ex officio and appointed membership. The governance structure combines automatic membership by office holders (Attorney‑General, Solicitor‑General, Supreme Court Librarian) with appointed members from the two main professional bodies. The Chief Justice appoints the Chairman, who must be a Supreme Court judge. This ensures judicial involvement but also creates potential conflicts: the Council controls the official record of judicial decisions, and the judiciary is directly represented on the body that controls that publication.

Consent power. The Council can consent to others publishing Victorian law reports. The Act does not set criteria for giving or withholding consent. The power is unfettered by any statutory guidelines, so it can be used to protect the Council’s own publishing activities or to exclude competitors. There is no requirement to grant consent on reasonable terms, and no appeal mechanism. A refusal could effectively block a competitor from entering the market.

Ancillary functions. Section 13 allows the Council to spend money on any purpose it considers ancillary to its principal functions. This is a broad power. It could be used to fund legal education, conferences, digitisation projects, or anything else the Council decides is ancillary. There is no defined limit.

The Act directly affects any person or entity seeking to publish reports of Victorian judicial decisions. This includes commercial law report publishers (such as those producing specialist series like the Australian Law Reports, Commonwealth Law Reports, or subject-specific reports), legal publishers offering online databases containing Victorian judgments with commentary or headnotes, and academics or institutions that compile case digests. The Act also affects the Council itself, its members, and its officers and employees. The legal profession as a whole is indirectly affected, because the Council’s publication decisions determine the content, timeliness and cost of Victorian law reports. The judiciary is affected because the Council controls the official record of their decisions, and a judge serves as Chairman. The public and litigants are also affected: they rely on accurate and accessible law reports, but the monopoly may reduce competition, potentially leading to higher prices or slower publication. The news media are exempt from the consent requirement for news reporting, so journalists who cover court decisions in newspapers, magazines or broadcasts are not caught. However, a legal blog or online newsletter that reprints headnotes or full judgments may not be a “newspaper, magazine or similar periodical” and would require consent. The definition of “publish” in section 10(4) now expressly covers computerised data banks, so operators of web‑based legal services such as AustLII, Westlaw, LexisNexis and similar platforms need the Council’s consent before including Victorian decisions in a curated database with editorial content. (It appears that in practice, many such databases have arrangements with the Council or rely on the news exception in some way, but the Act’s black‑letter prohibition is broad.) The professional bodies that appoint members (Law Institute of Victoria and Victorian Bar Inc) are affected because they have a statutory right to appoint two members each, and their appointees can influence the Council’s decisions. The Attorney‑General and Solicitor‑General, as ex officio members, also have a role, though they may send substitutes. The Act does not affect the courts’ inherent jurisdiction to control the publication of their own judgments; the prohibition in section 10(3) only applies to “reports of judicial decisions” and not to the judgments themselves when published by the court or by a person acting with the court’s leave. The Act also affects potential competitors who might want to start a new series of Victorian law reports: they must obtain the Council’s consent, and the Council may use its power under section 10(2)(b) to purchase the competitor’s business instead.

The Act imposes remarkably few duties. The Council has a right to publish law reports and to consent to others doing so, but no duty to publish any particular case or series. There is no duty to keep reports up to date, no duty to publish at reasonable prices, and no duty to maintain public access. The Council’s functions in section 10 are expressed as powers (“may prepare, publish and sell”), not obligations. The Council’s only procedural duty is found in section 8: the Chairman must preside at meetings, and decisions are by majority vote with a quorum of three members. The Council can govern its own procedure. There is no duty to give reasons for refusing consent, no duty to respond to consent applications within any set time, and no duty to ensure competition. The professional bodies (Law Institute of Victoria, Victorian Bar Inc) have a right to appoint members for terms of up to five years, and members may be re‑appointed under section 6. The Chief Justice has a right to appoint the Chairman and may also appoint an acting Chairman under section 5(1A) if there is a vacancy or the Chairman is absent. Appointed members may resign by writing to the Chairman (section 7(b)), and may be removed from office by the Chief Justice or the professional association that appointed them (section 7(c)). The Council may invest its funds “in any manner in which trustees are for the time being authorised to invest trust funds” (section 12), which is a conservative investment power. The Council may appoint staff (section 9) and pay members’ expenses (section 11). Persons other than the Council have a limited right to seek consent to publish law reports, but the Act does not give them any right to receive consent or to challenge a refusal. The news media have a right to publish reports of judicial decisions without consent if the publication is for the purpose of news reporting in a periodical or by broadcast/film. This exception is not subject to Council oversight. The Council’s power to purchase other law report businesses is also discretionary: it may “on such terms as may be mutually agreed upon purchase the business” of any person engaged in law report publication. There is no duty to purchase on fair terms or to allow a seller to exit the market. The Act gives no rights to users of law reports (e.g., lawyers, litigants, researchers) to access reports, to challenge pricing, or to require the Council to publish particular cases.

The Act does not create any criminal offence or fixed penalty for breach of the monopoly prohibition in section 10(3). The prohibition is expressed as “it shall not be lawful … to commence the publication or to publish … except with the consent of the Council”. A breach is therefore unlawful, but the Act is silent on consequences. In practical terms, the Council could seek injunctive relief in the Supreme Court to restrain a person from publishing unauthorised reports. The Council might also be able to recover damages for loss caused by the unauthorised publication, but that would depend on whether the Act creates a statutory duty that gives rise to a private right of action. The general rule is that breach of a statutory prohibition without a prescribed penalty can be enforced by injunction, but not necessarily by a claim for damages unless the Act evinces an intention to protect a class of persons. Since the Act protects the Council’s monopoly, it is likely that the Council could obtain an injunction as a matter of statutory construction. The Council could also bring an action for breach of contract if the publisher had agreed to terms of consent and then exceeded them. There is no criminal penalty for breach of the monopoly, so police or regulatory prosecution is not available. The Act also does not create any penalty for misuse of the Council’s powers, for failure to publish, or for failing to give reasons. The absence of penalties for non‑compliance by the Council itself means there is little legal risk for the Council if it chooses to refuse consent arbitrarily or to delay publication. The Act’s lack of penalty provisions is a notable feature: it relies on the Council’s internal governance and the possibility of judicial review under general administrative law if the Council made a decision that was irrational or procedurally unfair. However, the Act does not require procedural fairness in granting consent, and the courts may be reluctant to interfere with a purely commercial decision. Any enforcement action against publishers would be through the equity jurisdiction of the Supreme Court. The Council could also use its power to purchase infringing businesses as an alternative to litigation.

The Act operates alongside copyright law, competition law, and the inherent jurisdiction of the courts. Copyright under the Copyright Act 1968 (Cth) subsists in judicial judgments and in headnotes and annotations, but copyright does not prevent independent reproduction of the text of judgments because judgments are generally not subject to copyright or are subject to a Crown copyright waiver. The Act creates a separate statutory prohibition that does not depend on copyright. A publisher could own the copyright in its own headnotes but still be unable to publish them without the Council’s consent because section 10(3) prohibits publication of “reports of judicial decisions” generally. The Council’s monopoly therefore goes beyond intellectual property rights. The Competition and Consumer Act 2010 (Cth) prohibits anti‑competitive conduct, including misuse of market power, exclusive dealing and cartel conduct. The Council is a statutory corporation and its monopoly is granted by state legislation. It is not automatically exempt from Part IV of the Competition and Consumer Act, but a state‑created monopoly may be subject to defences or immunities under the Act. The Competition and Consumer Act does not generally override state statutory monopolies unless the conduct involves an element of misuse of market power that is not the natural consequence of the monopoly. The Council’s power to withhold consent could be challenged if it were used in a way that substantially lessens competition, but the statutory scheme itself provides the monopoly. Federal laws may not easily override it. The Act also interacts with the Legal Profession Uniform Law Application Act 2014 (Vic) through the definition of “professional association”. That definition now refers to the Uniform Law scheme, so appointments to the Council are tied to the uniform legal profession framework. The Act also intersects with the Supreme Court Act 1986 (Vic) and the County Court Act 1958 (Vic), as those Acts govern the publication of court decisions; however, they do not create a competing monopoly. The Council’s monopoly does not prevent the courts themselves from publishing their judgments directly. The Act also interacts with freedom of speech and the implied constitutional freedom of political communication, but that is a question of constitutional law rather than direct statutory interaction. The Act’s exception for news reporting suggests the drafter was aware of the need to preserve media freedom, but the exception does not cover academic commentary or legal analysis. There is no interaction with privacy laws beyond the general law. The Act does not create any interaction with freedom of information legislation, because the Council is not an agency under the Freedom of Information Act 1982 (Vic) unless it is listed in Schedule 1; it is not listed. There is no statutory right of access to the Council’s decisions or records.

The Act has been amended six times. The original 1967 Act set up the Council with a constitution that included the Attorney‑General, the Solicitor‑General, the Librarian of the Supreme Court, two members appointed by the Law Institute of Victoria, and two members appointed by the Victorian Bar Council. The Chairman was a judge appointed by the Chief Justice. In 1982, the Council of Law Reporting in Victoria Act 1982 (No. 9778) amended section 2 to add a definition of “Chairman” and inserted a new section 5(1A) allowing the Chief Justice to appoint an acting Chairman. More importantly, it inserted section 10(4) to define “publish” and “publication” as including a computerised data bank. This brought electronic publishing within the scope of the monopoly. In 1996, the Legal Practice Act 1996 (No. 35/1996) repealed the definitions of “Law Institute” and “Victorian Bar Council” and substituted references to the legal profession bodies. It also amended section 5(1)(c) and (d) to reflect the new structure, and amended section 7 to update the removal mechanism. In 2005, the Legal Profession (Consequential Amendments) Act 2005 (No. 18/2005) substituted the definition of “professional association” for the earlier “RPA” definition, and amended section 7(c). In 2006, the Justice Legislation (Further Amendment) Act 2006 (No. 79/2006) made the most significant change to the Council’s composition. It substituted section 5(1)(c) to specify the “Law Institute of Victoria Limited ACN 075 475 731” as the appointing body for two members, and substituted section 5(1)(d) to specify “Victorian Bar Inc” as the appointing body. It also inserted a new subsection 5(2) to ensure continuity of membership despite the change, and to preserve appointments made by the earlier bodies. In 2012, the Associations Incorporation Reform Act 2012 (No. 20/2012) amended section 5(1)(d) to update the reference to the Victorian Bar’s incorporation under the Associations Incorporation Reform Act 2012. In 2014, the Legal Profession Uniform Law Application Act 2014 (No. 17/2014) again substituted the definition of “professional association” to refer to that Act. The amendments have not altered the core monopoly in section 10(3). They have focused on governance and updating references to legal profession bodies and technology.

The Act itself does not record any litigation history. I cannot identify any High Court or Victorian Supreme Court decisions that directly interpret the Act. The absence of reported cases suggests that the Council’s monopoly has not been aggressively challenged in court, or that disputes have been settled without litigation. The monopoly is well known in the legal publishing industry, and most publishers have sought and obtained consent or relied on the news exception. The scope of “reports of judicial decisions” has not been judicially defined. The Computerised data bank amendment in 1982 indicates that the Council was concerned about electronic reproduction, and it may have taken steps to assert its monopoly against online publishers, but again no reported decision exists. Any litigation would likely be about whether a particular publication falls within the news exception (e.g., a legal blog, a newsletter, or a subscription email service). The exception for “newspaper, magazine or similar periodical” may be interpreted by reference to copyright and defamation cases on the meaning of “periodical”. The lack of litigation may also reflect the cost of challenging a statutory monopoly and the risk of an unfavourable interpretation that confirms the Council’s broad powers. If the Council ever withheld consent unreasonably or used its market power in a way that affected a competitor, a publisher could seek judicial review or bring a competition law claim, but no such case appears in the sources available. The Act’s long history with stable membership and no public controversies suggests the Council operates largely out of the public eye. The litigation history is therefore notable for what it lacks: no reported challenges to the monopoly, no constitutional challenges, and no disputes over the Council’s refusal to consent. This may indicate that the Council has not needed to enforce its monopoly aggressively, or that potential challengers have decided not to test it.

The biggest gotcha is the breadth of the monopoly. It applies to “any reports of judicial decisions of any court in Victoria”. That is not limited to the Supreme Court; it covers the County Court, the Magistrates’ Court, VCAT, and any other Victorian court or tribunal that produces judicial decisions. The Act does not define “judicial decisions” or “reports”. A “report” could include a headnote, a summary, or even a detailed analysis that reproduces substantial parts of a judgment. The exception for news reporting is narrow: it only covers publication “for the purpose of, or associated with, the reporting of news in a newspaper, magazine or similar periodical” or by broadcast or film. An online legal commentary site that updates regularly might not be a “periodical”. A blog that contains case summaries could be caught. The definition of “publish” includes inclusion in a computerised data bank. That means that simply uploading an unauthorised report to a website or a database is publication. A law firm that prepares internal case digests and distributes them to clients might be caught if the digest amounts to a report. The Council can purchase the business of any person, firm or company engaged in law report publication. This power could be used to eliminate a competitor that starts publishing without consent, by buying the competitor out. The Act does not require the Council to pay fair value; it says “on such terms as may be mutually agreed upon”. If the competitor refuses to sell, the Council can still sue for an injunction. The Council has no duty to grant consent. It could refuse consent to all applicants and maintain a complete monopoly. There is no time limit for the Council to respond to a consent application. A publisher could be left waiting indefinitely. The Act allows the Council to spend money on “any purpose that in its opinion is ancillary to the principal functions”. This could be interpreted very broadly, and there is no external check on whether a purpose is truly ancillary. The Council could spend funds on lobbying, political activities, or unrelated projects. The investment power is limited to trustee investments, but that is still a range of options including shares and bonds. The Council is not subject to the Financial Management Act 1994 (Vic) or the Public Administration Act 2004 (Vic). It has no obligation to report publicly on its finances or decisions. The lack of reporting requirements is a gotcha for anyone trying to understand the Council’s operations. Finally, the Act contains a definitional gotcha: the definition of “professional association” was changed in 2014 to refer to the Legal Profession Uniform Law Application Act 2014. That means appointments are now tied to the uniform legal profession framework, which may affect who can be appointed if the professional bodies change.

For any person, firm or company wishing to publish reports of Victorian judicial decisions, the first step is to determine whether the publication falls within the section 10(3) monopoly. If the publication is for the purpose of news reporting in a newspaper, magazine or similar periodical, or by broadcast or film, no consent is needed. That exception appears to be self‑executing; the publisher does not need to seek a declaration from the Council. However, the boundaries of “news reporting” and “similar periodical” are uncertain. A publisher relying on the exception should document why the publication qualifies to reduce the risk of a challenge. For all other publications, written consent from the Council is required. The Act does not prescribe an application form. The publisher should write to the Council at its registered address, describing the proposed publication in detail, including the format, frequency, scope, whether it is in print or electronic form, and whether it will include headnotes or commentary. The application should also explain whether the publication will compete with the Victorian Reports or will cover a specialist area not currently reported by the Council. The Council may impose conditions on consent, such as payment of royalties or restrictions on use. The publisher should negotiate terms in writing and obtain a signed consent document. Without consent, the publisher cannot lawfully commence publication. If the Council refuses consent, there is no statutory review. The publisher could consider judicial review on administrative law grounds if the refusal was irrational or procedurally unfair, but that is uncertain. The publisher could also consider selling its business to the Council under section 10(2)(b) if the Council is interested. For publishers already in business before 1967, the Act would have required compliance with the new monopoly from commencement. For those that began later without consent, they are in breach and should immediately seek to regularise their position. The Council has not been aggressive in enforcement, but the legal risk remains. For online database operators, the 1982 amendment means that uploading Victorian decisions with annotations or headnotes without consent is unlawful. Some databases may have general licences or arrangements with the Council. Operators should confirm their position. For law firms and corporations that compile internal reports of cases for clients or staff, the Act arguably applies if the compilation amounts to a “report of judicial decisions”. A simple list of case names with hyperlinks may not be a report, but a digest with summaries could be. Prudence suggests limiting internal distributions to mere citations or obtaining a blanket consent from the Council. The Council itself must comply with its own Act, but that is primarily a matter of internal governance: meeting quorum, proper appointment of members, investment within trustee limits, and recording decisions. The Council should maintain minutes of meetings and document its consent decisions to avoid challenges.