Re: Australian Court Cases

On Wed, 23 Jun 99, Pamela Cote <pcote[_at_]courier.com> wrote:
>
> Hello everyone, I was hoping that somebody might be able to help me out.
> I need to find out about a certain type of Australian court case and
> whether or not they are in the public domain. I understand U.S. law
> in this, but need to know if Australian law differs, and if so, in what
> way. The case I am looking into is from the Court of Appeals of New
> South Wales, Breen v. Williams. A decision in the case has been
> reached. Is a case such as this, in its original format w/ the decision
> (NOT in an edited format as found in an anthology of sorts) in the
> public domain, or must permission be obtained from the Court?

In general, in Australia, the Crown owns copyright in judicial decisions (although members of the Queensland Supreme Court claim that they are not Crown employees and therefore their judgments are actually owned by them rather than the Crown [I think they are wrong and a Federal court ruling on this case is likely to hold for Crown copyright]).

The Crown in the past have asserted this right and have charged legal publishers for the right to publish decisions. Whether or not this is valid or not has never been tested in the courts. There is a very strong public policy argument that they cannot do this. The previous High Court might have created a public policy exception but the current High Court is mostly appointed by a conservative government, and tend to judge that way.

The attitude towards enforcing Crown copyright from the government side has, however loosened considerably, particularly with the advent of the AustLII (http://www.austlii.edu.au/). The NSW government has granted an at large licence to reproduce NSW legislation by proclamation, and I understand that they have also done the same for NSW case law, but I have not actually seen the proclamation on case law. I can try and verify the position on case law for you.

Note: As far as I am aware, NSW is the only Australian jurisdiction to have given such a licence (although there was some discussion of doing this in Victoria which may have come to something since I last checked). That means in all other States, Territories and the Federal arena, Crown copyright is still asserted (although less strenuously than in the past).

Many court decisions make it onto AustLII within a few weeks of being made anyway if you need them to be available on the Web (AustLII have arrangements with the State and Federal governments).

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