Council of Law Reporting Act 1990

Council of Law Reporting Act 1990

An Act to provide for the constitution of the Council of Law Reporting for Tasmania as a body corporate, to prescribe the functions and powers of the Council, to provide for related matters and to amend the Defamation Act 1957

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Council of Law Reporting Act 1990 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Interpretation

In this Act, unless the contrary intention appears –

commencement day means the day proclaimed under section 2 ;

Council means the Council of Law Reporting for Tasmania constituted under section 4 ;

existing Council means the Council of Law Reporting in existence immediately before the commencement day;

[Section 3 Amended by No. 55 of 2007, Sched. 1, Applied:01 Mar 2008] judicial decision means a decision of the Supreme Court or any other court or any appeal board, appeal tribunal or any other person acting judicially in Tasmania and includes a decision on any matter dealt with in chambers by a judge or the Associate Judge of the Supreme Court;

publish includes include in a computerized data bank.

PART 2 - Council of Law Reporting

4.   Council of Law Reporting

(1)  There is constituted by this Act a body corporate with the corporate name of the Council of Law Reporting for Tasmania.

(2)  The Council –

(a) has perpetual succession; and

(b) shall have a common seal; and

(c) may take proceedings, and be proceeded against, in its corporate name; and

(d) may do and be subject to all things that corporations may by law do and be subject to and that are necessary for, or incidental to, the purpose for which it was constituted; and

(e) has the functions imposed, and the powers conferred, on it by or under this Act.

(3)  All courts, judges and persons acting judicially shall take judicial notice of the common seal of the Council affixed to a document and, unless the contrary is established, shall presume that it was duly affixed.

5.   Membership of Council

(1)  [Section 5 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]The Council shall consist of 6 members appointed by the Governor of whom –

(a) one shall be a judge nominated by the Chief Justice of the Supreme Court; and

(b) one shall be the person for the time being holding, or acting in, the office of editor of the Tasmanian Reports; and

(c) [Section 5 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] one shall be an Australian lawyer nominated by the Law Society of Tasmania; and

(d) [Section 5 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] [Section 5 Subsection (1) amended by S.R. 2013, No. 85, Applied:27 Nov 2013] one shall be an Australian lawyer nominated by The Tasmanian Bar; and

(e) one shall be a member of the Faculty of Law of the University of Tasmania nominated by the Faculty; and

(f) one shall be a person nominated by the Minister.

(2)  Subsection (1) (a) does not preclude the Chief Justice from nominating himself as a member of the Council.

(3)  The member of the Council referred to in subsection (1) (a) shall be the chairman of the Council.

(4)  If a body referred to in paragraph (c) or (d) of subsection (1) or in paragraph (b) or (c) of clause 6 of Schedule 1 changes its name to another name or ceases to exist under the name referred to in the relevant paragraphs, the Governor may, by order, amend those paragraphs –

(a) by substituting for the name of the body that other name; or

(b) by substituting for the name of that body the name of some other body which the Governor is satisfied represents substantially the same interests as those represented by the first-mentioned body.

(5)  Schedule 1 has effect with respect to the membership of the Council.

(6)  Schedule 2 has effect with respect to the meetings of the Council.

6.   Functions of Council

The Council shall be responsible for law reporting in Tasmania.

7.   Powers of Council

(1)  The Council may prepare, publish and sell, or arrange for the preparation, publication and sale of, reports of judicial decisions.

(2)  The Council may, if it thinks fit, prepare, publish and sell, or arrange for the preparation, publication and sale of, any law reports, other than those referred to in subsection (1) , and may on such terms as it thinks fit buy and sell copies of law reports and other legal publications.

(3)  Where the business of any person is, or includes, the preparation, publication or sale in Tasmania of any series of law reports, the Council may, if it thinks fit, on such terms as may be agreed upon between the person and the Council, purchase the business relating to, or so much of the business as relates to, the preparation, publication or sale of those reports and may, if it thinks fit, discontinue any business so purchased or continue it wholly or in part.

(4)  The Council may consult and work with other Councils of Law Reporting and other persons concerned with law reporting for the purpose of improving its service to the judiciary and the legal procession in this State and elsewhere in the Commonwealth and for that purpose may enter into such agreements and make such arrangements as it thinks proper.

(5)  The Council may do all things necessary and convenient to be done for or in connection with, or incidental to, the performance of its functions and the exercise of its powers under this Act.

8.   Secretary to Council and other employees

(1)  The Council may appoint a person as secretary to the Council and such other employees as the Council considers necessary for the performance of its functions and the exercise of its powers.

(2)  [Section 8 Subsection (2) substituted by No. 86 of 2000, Sched. 1, Applied:01 May 2001] A State Service officer or State Service employee may, with the approval of the Head of the State Service Agency in which that officer or employee is employed, be appointed under subsection (1) and that officer or employee may hold that office in conjunction with State Service employment.

(3)  [Section 8 Subsection (3) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Council shall pay to the Public Account such sum of money as may be determined by the Treasurer for the service of a State Service officer or State Service employee appointed under subsection (1) , and the Treasurer may reimburse that sum to the State Service Agency in which that person is employed.

(4)  [Section 8 Subsection (4) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] A person appointed under this section as secretary to, or an employee of, the Council shall not in that person's capacity as secretary or such an employee, be subject to the State Service Act 2000 .

9.   Committees

(1)  The Council may, by resolution, establish committees for the purpose of assisting it in carrying out its functions under this Act.

(2)  A committee established under subsection (1) shall be constituted by such persons as the Council considers appropriate and may include persons who are not members of the Council.

(3)  A member of a committee established under this section shall be appointed for such period as the Council thinks fit.

(4)  Subject to subsection (5) , a member of a committee established under this section is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Council may from time to time determine, and the payment of any such remuneration shall be made out of the funds of the Council.

(5)  [Section 9 Subsection (5) substituted by No. 86 of 2000, Sched. 1, Applied:01 May 2001] A member of a committee who is –

(a) a State Service officer or State Service employee; or

(b) otherwise holding, or acting in, an office –

(i) under the State Service Act 2000 ; or

(ii) in an Agency within the meaning of that Act –

is not entitled to remuneration under subsection (4) , except with the approval of the Minister administering the State Service Act 2000 .

PART 3 - Finances of the Council

10.   Funds of Council

(1)  [Section 10 Subsection (1) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] The Council may establish such authorised deposit-taking institution accounts as it considers necessary.

(2)  The funds of the Council shall be paid to the credit of such accounts as it determines.

(3)  The funds of the Council shall be applied only –

(a) in the payment or discharge of the expenses, charges and obligations incurred or undertaken by the Council in theperformance of its functions or the exercise of its powers; and

(b) in the payment of any remuneration and allowances payable under this Act.

11.   Temporary investment of funds

The Council may invest any money that it is holding and for which it has no immediate use in any manner in which trustees are for the time being authorized to invest trust funds under the Trustee Act 1898 .

12.   Accounts

(1)  [Section 12 Subsection (1) amended by No. 50 of 2008, Sched. 2, Applied:01 Jul 2010] The Council shall cause to be kept proper accounts and records in relation to all of its operations.

(1A)  [Section 12 Subsection (1A) inserted by No. 50 of 2008, Sched. 2, Applied:01 Jul 2010] The Council is to prepare and forward to the Auditor-General a copy of its financial statements for each financial year in accordance with the Audit Act 2008 .

(2)  [Section 12 Subsection (2) amended by No. 50 of 2008, Sched. 1, Applied:01 Mar 2009] [Section 12 Subsection (2) amended by No. 68 of 1994, s. 3 and Sched. 1 ]The accounts of the Council are subject to the Audit Act 2008 .

(3)  [Section 12 Subsection (3) omitted by No. 50 of 2008, Sched. 2, Applied:01 Jul 2010] .  .  .  .  .  .  .  .  

PART 4 - Miscellaneous

13.   Prohibition of publication of reports of judicial decisions

A person, other than the Council, shall not publish the whole or any part of any reports of judicial decisions, either separately or in conjunction with the reports of any other decisions, except with the consent of the Council unless the publication –

(a) is for the purpose of, or is associated with, the reporting of news in a newspaper, magazine or similar periodical; or

(b) is for the purpose of, or is associated with, the reporting of news by means of broadcasting or in cinematographic film; or

(c) is for the purpose of, or is associated with, teaching.

Penalty:  Fine not exceeding 20 penalty units.

14.   Exemption of Council from certain provisions of Acts

[Section 14 Amended by No. 49 of 1999, Sched. 1, Applied:01 Feb 2000] [Section 14 Amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 14 Amended by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] Subject to compliance by the Council with such provisions as may be prescribed in the regulations made under this Act, section 12 of the Magistrates Court (Children's Division) Act 1998 , section 31 of the Youth Justice Act 1997 , section 194K of the Evidence Act 2001 and sections 37A (3) and 106K of the Justices Act 1959 do not apply to the Council.

15.   Abolition of existing Council

The Council of Law Reporting established under the Council of Law Reporting Order 1978 is abolished.

16.   Regulations

The Governor may make regulations for the purposes of this Act.

17.   Revocation

The orders specified in Schedule 3 are revoked.

18.   Transitional and savings provisions

(1)  A person holding office immediately before the commencement day as a member of the existing Council shall, unless that person is sooner removed from office under this Act or that person's office sooner becomes vacant under this Act, continue to hold that office for the remainder of the period specified in that person's instrument of appointment.

(2)  Nothing in this Act shall be construed as affecting the power of the Supreme Court or a judge to publish the Court's or the judge's reasons for judgment.

SCHEDULE 1 - Provisions with respect to membership of the council

Section 5

1.   Terms of office

A member of the Council referred to in section 5 (1) (a) , (c) , (d) , (e) or (f) shall be appointed for such period, not exceeding 3 years, as is specified in the member's instrument of appointment and shall (if otherwise qualified) be eligible for re-appointment from time to time for a term not exceeding 3 years.

2.   Provisions requiring devotion of whole of time to other duties

Where, by or under any Act, provision is made requiring the holder of an office to devote the whole of his or her time to the duties of his or her office under that Act, that provision shall not operate to disqualify the person from holding the office and also the office of a member of the Council or to prevent the person from devoting time to performing the duties of office of a member of the Council.

3.   Payment of expenses, &c.

(1) A member of the Council is not entitled to be paid remuneration for performing the duties of office of a member of the Council other than, subject to subclause (2) , travelling and subsistence expenses.

(2) The travelling and subsistence expenses which a member of the Council is entitled to be paid under subclause (1) shall not exceed such travelling and subsistence allowances as the Governor may from time to time determine in respect of members of the Council.

(3) Notwithstanding subclause (1) –

(a) a member of the Council who is engaged by the Council to report judicial decisions is entitled to be paid remuneration for such reporting; and

(b) the member of the Council who is the editor of the Tasmanian Reports is entitled to be paid remuneration for work undertaken by the member as editor or on behalf of the Council.

4.    State Service Act 2000 not to apply

[Schedule 1 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The State Service Act 2000 does not apply to, or in respect of, the appointment of a member of the Council and a member of the Council shall not, in his or her capacity as such a member, be subject to that Act during his or her term of office.

5.   Deputies and substitutes to act in place of members

(1) The member of the Council referred to in section 5 (1) (b) may, with the approval of the Minister, appoint a person as his or her deputy and that deputy, while acting in the absence of that member, shall be deemed to be a member of the Council with all the powers, rights and duties of that member (other than the power conferred by this subclause).

(2) The Minister may appoint –

(a) the Chief Justice of the Supreme Court or a judge nominated by the Chief Justice to act in the office of chairman of the Council; or

(b) any person to act in the office of a member of the Council referred to in section 5 (1) (c) , (d) , (e) or (f) –

while the chairman or that member, as the case may be, is absent from office through illness or any other cause and that person, while acting in such an office, shall be deemed to be the chairman or a member, as the case may be, of the Council with all the powers, rights and duties of the chairman or that member.

(3) A member of the Council referred to in section 5 (1) (a) , (c) , (d) , (e) or (f) shall, for the purposes of subclause (2) , be deemed to be absent from office if there is a vacancy in that office which has not been filled in accordance with clause 6 .

(4) A person shall not be concerned to inquire whether or not any occasion has arisen requiring or authorizing a person to act in the office of a member of the Council, and all things done or omitted to be done by that person while so acting shall be as valid, and shall have the same consequences, as if they had been done or omitted to be done by that member.

6.   Filling of vacancies

If the office of a member of the Council referred to in section 5 (1) (a) , (c) , (d) , (e) or (f) becomes vacant, the Governor may appoint a person to the vacant office for the residue of his or her predecessor's term of office and, in the case of a vacancy in the office of a member of the Council –

(a) referred to in section 5 (1) (a) , the person appointed shall be the Chief Justice of the Supreme Court or a judge nominated by the Chief Justice; and

(b) [Schedule 1 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] referred to in section 5 (1) (c) , the person appointed shall be an Australian lawyer nominated by the Law Society of Tasmania; and

(c) [Schedule 1 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] [Schedule 1 Amended by S.R. 2013, No. 85, Applied:27 Nov 2013] referred to in section 5 (1) (d) , the person appointed shall be an Australian lawyer nominated by The Tasmanian Bar; and

(d) referred to in section 5 (1) (e) , the person appointed shall be a member of the Faculty of Law of the University of Tasmania nominated by the Faculty.

7.   Vacation of office

(1) The office of a member of the Council becomes vacant –

(a) when the member dies; or

(b) if the member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration or estate for their benefit; or

(c) if the member is absent from 3 consecutive ordinary meetings of the Council of which reasonable notice has been given to the member, either personally or in the ordinary course of post, except on leave granted by the Minister or unless before the expiration of 21 days after the last of those meetings, the member is excused by the Minister for having been absent from those meetings; or

(d) [Schedule 1 Amended by No. 32 of 1996, Sched. 1, Applied:01 Nov 1999] if the member becomes unable to perform competently the duties of the office;

(e) if the member is convicted in Tasmania of a crime or an offence which is punishable by imprisonment for a period of not less than 12 months, or convicted outside Tasmania of an offence which, if committed in Tasmania, would be a crime or an offence so punishable; or

(f) if the member resigns his or her office by instrument in writing addressed to the Governor; or

(g) if the member is removed from office by the Governor under subclause (2) or (3) .

(2) The Governor may remove from office a member of the Council if the Governor is satisfied that the member is unable to perform adequately or competently the duties of his or her office.

(3) The Governor may remove a member of the Council from office if the Governor is satisfied, having regard to the information supplied by the person or body that nominated that member for appointment to the Council, that the member is no longer qualified to be appointed to the Council.

(4) A member of the Council shall not be removed from office otherwise than in accordance with this clause.

8.   Validity of proceedings, &c.

(1) No act or proceeding of the Council or of any person acting pursuant to any direction of the Council is invalidated or prejudiced by reason only of the fact that, at the time when the act or proceeding was done, taken or commenced, there was a vacancy in the membership of the Council.

(2) All acts and proceedings of the Council or of any person acting pursuant to any direction of the Council are, notwithstanding the subsequent discovery of any defect in the appointment of any member of the Council or that any person was disqualified from acting as, or incapable of being, a member of the Council, as valid as if the member had been duly appointed and was qualified to act as, or capable of being, a member, and as if the Council had been fully constituted.

(3) Where a member of the Council, or any person acting pursuant to any direction of the Council, does or purports to do, or omits or purports to omit to do, any act or thing in good faith for the purpose of administering or executing this Act, the member or person shall not be personally subjected to any action, liability, claim or demand in respect of that act or omission.

9.   Presumptions

In any proceedings by or against the Council, unless evidence is given to the contrary, no proof shall be required of –

(a) the constitution of the Council; or

(b) any resolution of the Council; or

(c) the appointment of any member of the Council; or

(d) the presence of a quorum at any meeting of the Council.

SCHEDULE 2 - Provisions with respect to meetings of the Council

Section 5

1.   Convening of meetings of the Council

Meetings of the Council may be convened by the chairman of the Council or by any 3 members of the Council.

2.   Procedure at meetings

(1) Three members of the Council shall form a quorum at any duly convened meeting of the Council.

(2) Any duly convened meeting of the Council at which a quorum is present shall be competent to transact any business of the Council.

(3) Questions arising at a meeting of the Council shall be determined by a majority of votes of the members of the Council present and voting.

3.   Chairing of meetings

The chairman of the Council or, in the absence of the chairman, the person acting in the office of chairman of the Council shall preside at a meeting of the Council and the chairman or the person acting in the office of chairman, as the case may be, has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

4.   General procedure

The procedure for the calling of, and for the conduct of business at, meetings of the Council shall, subject to any procedure that is specified in this Schedule, be as determined by the Council.

SCHEDULE 3 - Orders revoked

Section 17