JILT 2000 (1) - Free the Law Transcript
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Free the Law
How the Australasian Legal Information Institute (AustLII) Achieved the Free Availability of Legal Information on the Internet
This is a transcript (supplied by Smith Bernal ) of
an evening meeting (8 Nov 1999) arranged by Society for Computers and Law ( SCL ), Information Technology and the Courts Committee (ITAC), British and Irish Legal Education Technology Association ( BILETA ), British and Irish Association of Law Librarians ( BIALL ), and Institute of Advanced Legal Studies ( IALS ), in conjunction with Australasian Legal Information Institute ( AustLII ).
1. Introduction: Welcome from the Right Honourable Lord Justice Brooke
I would like to welcome you all tonight. As you will have read, if you have read the blurb, this evening is a joint venture organised by five different bodies, I do not think any whom have co-operated on this scale before, the Society for Computers & Law ( SCL ), the Information Technology And the Courts Committee (ITAC), whose Chairman, Lord Saville, is here, the British and Irish Legal Education and Technology Association ( BILETA ), the British & Irish Association of Law Librarians ( BIALL ) and the Institute of Advanced Legal Studies ( IALS ).
I have said this is a first. I hope very much it will not be a last. The issue we will be hearing about tonight is one on which there is a common interest of academic lawyers, practising lawyers and judges, law librarians and everybody who has an interest in making the law in all parts of these two islands more easily accessible via the web, England, Scotland, Wales, Northern Ireland and the Republic of Ireland.
It is a great pleasure that among our speakers on the panel, although you do not know about it yet, is a representative of the Office of the Attorney General for the Republic of Ireland, Mr Donelan, whom we welcome, and also we have here tonight a representative from the Royal Court of Jersey.
In addition to everybody I have talked about so far who are your co-hosts, I suppose, there is also a key interest of law publishers and we are very grateful to Butterworths , Jordans and Sweet & Maxwell , all co-operating to sponsor this evening, thank you very much, and then the official shorthand writers to the English courts, Smith Bernal , who will be providing a verbatim transcript which will be up on the web at the end of the week on the SCL web site, and I am sure any other web site that wants to have it.
There are two final announcements I have been asked to make. First of all, no smoking in here, please, and please turn off all your mobile phones. Please notice the emergency exits and if there is an emergency evacuation, which I hope there will not be, keep calm and follow the instructions of the Chatham House staff.
That is all I want to say at the start. The first speaker who will be addressing you for about ten minutes to give you an overview of the UK position is Stephen Hockman QC. He is Chairman of the Practice Management and Development Committee of the Bar Council . He is on my right. He was called to the bar in 1970. He was a QC, in 1990, and he has done all sorts of other things in the CV he has given me, but the important thing tonight is his great interest in IT and the law.
2. Address from Mr Stephen Hockman QC
Good evening, ladies and gentlemen.
It is a great pleasure and privilege to be asked to give this introductory talk to such a distinguished audience and on such an auspicious occasion. May I begin by attempting to categorise or perhaps to classify the subject matter of the discussion that we are going to have this evening? What we are, of course, not really focusing on is the substantive law. Equally, we are not focusing, at least not directly, on the methods by which the substantive law is made. It may be that the subject that we are going to be discussing this evening can best be described as the methods by which the law is promulgated, the promulgation of the law.
When it dawned on me that that was really the essence of the problem, one of the things that I wondered was what is the history of this subject? I often like to go back into history to see if the answer to a problem can be found in the past. I began to wonder to what extent the question of the promulgation of the law, the methods by which the law is made known to the public at large, had ever been the subject of historical study. I had to go right back to a book which I and perhaps others first encountered at university, a book called 'Law in the Making' by Sir Carleton Kemp Allen, which, if you remember, came in the form of a pale green paperback. The one I used at Cambridge was the seventh edition published in 1964. That book contains a little section on the promulgation of the law and I would like, if I may, just to begin by reading a short passage from it. 'As early as 1365', says the author, 'it is laid down judicially that everyone is bound to know what is done in Parliament, even though it has not been proclaimed in the country; as soon as Parliament has concluded any matter, the law presumes that every person has cognizance of it, for Parliament represents the body of the realm'. In days when communication was difficult and writing the privilege of few, this rule was one which might work hardship and the promulgation of statutes was a problem of no small difficulty. Down to the reign of Henry VII, the statutes passed in a session were sent to the sheriff of every county with a writ requiring him to proclaim them throughout his bailiwick and to see to their observance.' Then he goes on, 'Soon after the introduction of printing, statutes began to be promulgated in print, the first dating from 1484. But their distribution and publicity were extremely defective, and gave rise to severe strictures.' He concludes by saying, 'Hobbes', the famous philosopher, 'for example, waxed indignant at the difficulties which confronted the layman in ascertaining the law, and he concluded that there ought to be as many copies of statutes abroad as of the Bible.'
I think it is interesting that some of the themes which may form part of our discussion tonight were anticipated in those days by no lesser a thinker than Thomas Hobbes. I think it is also interesting that the last time that this issue perhaps received the sort of in-depth consideration that we are now about to give to it may have been around the time when printing was first invented. It seems to me to be peculiarly appropriate that now, when, with the advent of electronic forms of communication, we are perhaps about to undergo a social revolution equivalent to the sort of change that came about in society at large when printing was invented, it is at this moment that the issue of the promulgation of the law should be revisited, and at this the moment that perhaps important change in that area may be on the horizon, just as we are about to witness major changes in methods of communication as well.
With that introduction, let me very briefly, if I may, review the present situation in this country. May I acknowledge the help that I have had in this and in many other areas from Laurie West-Knights who, as many people will know, has written and spoken on this subject extensively.
As most people here will be aware, there is already available on the Internet, put there by HMSO, the statutes from 1996 onwards, statutory instruments from 1997 onwards, the new civil procedure rules and a great deal of related material which you can obtain via the LCD site. There is in the process of coming into existence, so we understand, the statute law database. Not many of us have seen it; I certainly have not. One understands that that will take us back, if and when it is made available, to all statute law in force as at 1991. It will do something which, if it comes about, will be extremely important, namely giving us the state of legislation as at a given date, which is an absolutely vital facility if it can be achieved. As I say, it is not yet publicly available and we do not yet know when it will be or on what terms. Perhaps equally importantly, I do not think we know whether the software which is being used to create it could ever blend successfully with the software that might be used to compile the sort of database which we are going to be hearing about shortly from our principal speaker.
That is the position as regards legislation. As regards case law, decisions of the House of Lords are available. They were available as from about November 1996. My friend and colleague, Roger Horne, drew to my attention this morning that very recently cases of the House of Lords are now only available as from 1998. [since rectified]. Quite what has happened to the two years of House of Lords decisions between 1996 and 1998 has not yet been revealed. Presumably, they are still binding authority even though something appears to have happened with regard to their promulgation. There are a limited number of other cases available on the Court Service web site. There are a lot of cases available through the Scottish Court Service , decisions of the courts in Scotland, and decisions of the European Court of Human Rights and of the European Court of Justice.
Of course, there is a lot more material which is put on to the Internet commercially by a variety of legal publishers. Time does not permit me to review all of that in detail but there is an extremely interesting article on the subject by James Behrens in a recent issue of the Internet Newsletter for Lawyers in which all of these sources are reviewed.
So, in general terms, one can, I think, say that there is quite a lot of recent material available but it is patchy. It is not always easily accessible. It varies from time to time, as the position with regard to the House of Lords shows us, and it really does need systematising and extending to make it really properly usable as a research tool both by the profession and by the public.
That is an extremely brief and, no doubt, crudely over-simplified summary of the position in this country as it stands at the moment. Let me end with a few words about policy, because I know that we have a number of policy-makers in the audience, including those from the Lord Chancellor's Department who presumably ultimately will have to make some decisions as to where we go from here. One element in the policy framework is undoubtedly the question of Crown copyright, and the question arises in what way is the Government going to use its position as the holder of Crown copyright either to allow or to restrict publication of the sort of material we are talking about? In March 1999 the Government produced a White Paper called The Future Management of Crown Copyright and as far as I can see from looking at that White Paper the Government certainly does not have any intention or any policy to restrict the availability of the information that we seek, of statutes or case law, by reliance on Crown copyright. There are areas where it seems to me that the position is still obscure and it would be interesting to know, and I rather think that someone from HMSO may be in the audience, how this is going to develop. One of these areas over which there is still a question mark concerns the statute law database itself. One gathers from the White Paper that that is going to be treated as what is called tradeable information but, as I said earlier, we do not know on what terms the statute law database is going to be made available and in what way. So there are some question marks over that.
Secondly, with regard to judgments, there is a sentence in the White Paper which indicates that as far as they are concerned guidance is to be agreed between the Court Service and HMSO. As far as I am aware, and from a check on the HMSO web site this morning, that guidance is not yet available. Again, it would be interesting to know what form that guidance is going to take and what parameters are going to be laid down in that context in relation to the distribution of judgments. As I say, it seems to me from a reading of the White Paper that the message is on the whole positive and that it is likely that the Government will be encouraging towards the sort of developments that we are going to be discussing this evening but, as I said, there are some question marks.
Another facet of Government policy which is of some relevance is this: it is, of course, Government which in relation to cases has the responsibility of arranging for judgments to be transcribed and in the past we have been concerned as to whether the arrangements that the Court Service in particular has made with transcribers would impose any restrictions on the availability of judgments. Again, the indications on this are fairly encouraging. The Chief Executive of the Court Service recently wrote to me to give an assurance that in the present arrangements which the Court Service has with the transcribers, there is a right of review, and those review mechanisms will ensure that arrangements for making transcripts available on the Internet would remain within the jurisdiction of the department and not subject to contractual obligations to the transcribers. So that is another piece of the jigsaw which it may be is now beginning to fall into place.
It is impossible in the few minutes that I have available - and I am conscious that I am merely the warm-up act for this evening's star performer - to really do justice to what is an extremely wide-ranging and in some ways complex subject. I have not, I suspect, been able to do more than glide across the surface, hopefully without falling over too obviously.
Can I perhaps conclude on this note? I have made quite a lot of references to Government. Personally, at least, I do believe that we are going to be dependent upon Government being prepared to look benevolently upon the initiatives that we would like to see introduced and, indeed, perhaps even to give the whole thing a kick start. I derived a further piece of encouragement the other day when I read the New Statesman for 1 November 1999 which has a profile of Patricia Hewitt MP who, I learned from the New Statesman, and I am afraid this is something that I had not realised until then, is now a minister at the DTI, and the New Statesman describes her as the minister for all things 'E'. I take it that she has responsibility for 'E' commerce and all other related matters.
If I can conclude as I began by offering a short quotation from Patricia Hewitt in the course of this interview with the New Statesman, 'We have to ensure', the minister said, 'that businesses and also individuals right across the community have got access to information and communications technologies and also have the skills and the levels of confidence and comfort to xploit their potential. We have not got a universal network society, either within this country or indeed anywhere else in the world, so there is an emerging issue about the possibility of information exclusion becoming a new dimension of social exclusion. We are determined to stop that happening.'
One might hope and one might conclude that one of the very first things that the Government ought to do in order to avoid the problem of information exclusion is to meet the problem which Thomas Hobbes confronted all those centuries ago, that if you are bound by the law you ought at least to have the opportunity of knowing about it. Thank you very much. [Applause]
3. Reply to Stephen Hockman and introduction to Graham Greenleaf by Lord Justice Brooke
Thank you very much. What Stephen did not say was the recent announcement by Government that they intend to make all Government services potentially available through the web by the year 2008. That must, by definition, include Government judicial services. How that is going to be performed, unless in this country we have something of the kind of service which the next speaker will be telling us about in Australia, I have yet to understand.
The next speaker is Graham Greenleaf who is co-Director and co-founder of this wonderful institution, AustLII , the Australasian Legal Information Institute. I was told by Ruth Baker, the General Manager of SCL, who always gets everything right, that he is Professor of Law at the University of South Wales. That surprised me. I read the text which you have all got and he is in fact from New South Wales. In addition to his chair there, and giving up all his spare moments to AustLII, he is also involved in a number of other public appointments in the monarchy of Australia. He will be speaking to us tonight about the way that AustLII have achieved the free availability of legal information on the Internet. He was one of the very begetters of AustLII and it is a very great pleasure and honour to have you with us tonight. [Applause]
[Note - This transcript has been edited so as to include links to the web pages and search results used in the presentation, and also to include other contextual information.]
President, my Lords, ladies and gentlemen - As your President has noted, I am from the monarchy of Australia. I appear before you tonight as one of Her Majesty's reluctant subjects.
[Web page: Title - Start ]
On behalf of my colleagues at AustLII , thank you very much for the interest that you have shown in our work by your attendance at this seminar tonight. Our particular thanks to the five organisations that have jointly convened this meeting.
When he was opening AustLII's recent law via the Internet 1999 conference, Justice Michael Kirby of Australia's High Court claimed that AustLII would have delighted Jeremy Bentham, one of whose many passions was improved access to legal information and who, like Thomas Hobbes, often railed against the impediments to public access to the law. It has been my pleasure over the last few days to work at the Institute for Advanced Legal Studies, not far from University College where Bentham's embalmed body stares down at onlookers. I did put in a request for him to be brought over to Chatham House this evening to give me some moral support, but unfortunately he had to attend a meeting of the College Council and so he has sent his apologies instead.
[Web page: Outline ]
I have been asked this evening to give an explanation of AustLII and so this will be partly a demonstration and partly an explanation of the elements that have enabled us to make what contribution to access to the law that we have been able to achieve.
[Web page: A public legal information institute ]
I will first give a brief introduction to points on which I will later expand.
[Web page: Mission ]
The basis of AustLII has always been a commitment to free access to public legal information. When AustLII was founded in 1995 on the basis of a small academic grant of A$100,000 it was explicitly on the basis of providing free access research infrastructure, using the Internet as best we could to provide legal information for the purposes of academic research. AustLII is an independent body in the sense of independence from government, business or any one funding source. It is a joint facility of the law faculties of the University of Technology, Sydney (UTS), where my co-director, Andrew Mowbray, is Associate Dean, and the University of New South Wales (UNSW) where I am a Professor.
All information on AustLII is available for free access and it is run on a non-profit basis. It is funded by stakeholders, as I will explain later, not by user charges, nor by advertising.
It is based around large scale provision of legal information. We have over 80 databases of case law, legislation and other materials, including the full texts of somewhere over 100,000 cases, and over 1 million separate pages of legislation. AustLII is also based on large scale usage of up to 200,000 hits or pages accessed per day.
[Web page: Staff ]
To achieve that large scale result, we nevertheless have a fairly small staff of eight full-time staff members (in addition to Andrew and myself) and a modest budget of about 200,000 pounds. AustLII's results can only be achieved by virtue of automated conversion of data, as I will explain later. So we combine a public access system, research into computerisation of law and various educational facilities. We call ourselves a public legal information institute and we are not alone in that. Other well known examples are Cornell's legal information institute and Lexum at the University of Montreal in Canada.
[Web page: Australasian Databases ]
For those of you not perhaps familiar with some of the content on AustLII, our databases, the centerpiece is what we describe as our National Law Collection, the legislation and the decisions of the superior courts from all nine jurisdictions in Australia. As you can see from the Commonwealth legislation that appears on screen, Commonwealth case law, decisions date from varying dates going back as far as the full text of high court decisions back to 1947, federal court decisions back to its inception in 1977, and so on, and a very wide range of other courts and tribunals.
We have both consolidated legislation for most jurisdictions and sessional or numbered Acts. In some cases, the case law on AustLII is available within hours of the decision being handed down. There have been no High Court decisions in the last couple of days but when High Court decisions are handed down they appear on the AustLII system with full hypertext markup within a few hours. Within our National Law Collection we have material such as high court transcripts by which, in the Australian context, we mean the proceedings of a matter as it is heard, not the decision as it is handed down. We also have the pre-1900 decisions of the New South Wales Supreme Court being by compiled Bruce Kercher from Macquarie University.
While that collection of legislation and the most important case law from all jurisdictions is the core of AustLII, we also have full text decisions from over 30 other courts and tribunals from around the country. It covers a wide variety of subjects, such as industrial awards from New South Wales (where you can see here, on the front of this database, sponsorship by one sponsoring organisation being acknowledged), decisions of our patent office, and other tribunals such as the West Australian Information Commissioner and the New South Wales Residential Tenancies tribunal. In many cases, although you might think that these are less important sources of case law, often they are the only source that is available. So, unlike our Supreme Court decisions and High Court decisions, if you practise in those fields these databases really are invaluable.
We feel that we are at the position at the moment where we are more than half way towards including the decisions of all significant Australian courts and tribunals. With some additional recent funding we have received from the Australian Research Council we hope that we might have a genuinely comprehensive Australian collection within the next three years, including the remaining courts and tribunals. That is only an aspiration at this stage.
We also have Australasian regional databases. We are not called the Australasian Legal Information Institute completely for nothing. We have recently obtained the decisions of the Court of Appeal of New Zealand and we are negotiating with the Department for Courts in New Zealand to obtain the decisions of other New Zealand courts. We are also working cooperatively with the University of the South Pacific in Vanuatu to put onto the web case law and legislation from all 11 island states of the Pacific. In the case of those decisions, for most of the island jursidicitons there are no substantial law libraries, and there are no printed sets of law reports or consolidated legislation. The provision of this information to South Pacific countries is considerably more significant than in a relatively well resourced country like Australia or New Zealand.
In addition, we have what we call our special collections of secondary legal materials, a very wide range of them, but among the notable ones are the complete Australian Treaties Library back to 1900 - or almost complete, it will be complete by the end of this year - provided in conjunction with the Department of Foreign Affairs and Trade. We have the full text of every treaty to which Australia is a party and a lot of other interpretive materials on treaties, plus explanatory materials about pending treaties that Australia is considering ratifying.
We have the Law Reform Commission reports of the Australian Law Reform Commission and a very large collection of indigenous law materials, the Reconciliation and Social Justice Library, including such things as all 97 volumes of the 'black deaths in custody' Royal Commission reports.
[Web page: Technical foundations of AustLII ]
So you can see there is a wide range of material on the AustLII system. The question I should address next is 'how is this achieved'?
[Web page: AustLII software ]
The starting point is that all of the key software that is used to operate the AustLII system is written in-house by my colleagues, ranging from our search engine to our hypertext markup tools, web indexing software, and a variety of other pieces of software. The fact that we develop our own software gives us considerable potential to integrate it and make the provision of information by various tools more seamless, as I hope you will see in a minute.
[Web page: Technical foundations of AustLII ]
We do require quite significant 'industrial strength' equipment and tools to to be able to handle the various projects that we are involved in, ranging from Sun Enterprise 4500 servers to 210 GB of raid array storage.
[Web page: Features for users ]
That is a little bit of the background. We will now go on a short tour of some of the features of AustLII that users experience, to indicate why it is valuable to have all of these sources of data collected together in the one location.
To start with, our search engine, SINO, [Laurence West-Knights - Size Is No Object] has a full range of boolean and proximity search operators. The most significant thing for many users is the fact that you can search over all of the databases contained on AustLII at one time, over 7 GB or so of information. Although I will ask for audience participation during this evening with some suggestions for searches, I will start with a search across all the databases for information relating to intestacy and family provision or family maintenance. Please tell me if I make any typing errors.
[Web page: like this .
So with this moderately complex boolean search it will now search over 7 GB or so of text. Whereas I can cache static web pages, I cannot cache searches. As you can see, that search only took a few seconds to bring a result back from Sydney. What we find is the first item is from the ACT numbered acts; the second item is from miscellaneous South Australian cases; the third item here does not indicate in the search result what it was so I will go to it. It is from Tasmanian consolidated legislation.
[Web page: Tasmanian legislation ]
You can see from this example one of the other features that I will come to in a minute. You should never try anything you have not tested but this should go to a definition in the Act of the word 'will', which it does. Most of these things I have tested; that one I had not.
[Web page: Link to definition of 'will']
So you can see immediately the range of the value of materials being able to be searched across the whole range of jurisdictions and case law and legislation together. If we look at that first case, while the search found 33 or so items, the catch words of this first case say this concerns a deceased male who died intestate and former wife makes a claim for provision under the Inheritance (Family Provision) Act. So it is clearly spot on the point.
[Web page: South Australian case ]
The search results, the 31 items that have come back, have been ranked in order of likely relevance to the search terms we used. So it does not matter if you do a search that retrieves 10,000 items. If the relevance ranking works properly, then the best items will be found at the top of the results list. This enables you to do fairly broad searches but still obtain the quality results at the top. I think that is sufficient demonstration of that.
[Web page: Features for users ]
[Web page: AustLII search form ]
Another feature of searching AustLII is that you can search specific combinations of databases or individual databases. Here is the complex search window where you can search just legislation databases, or just Commonwealth databases, or just South Australia or Western Australia legislation, or assorted combinations. There are a very large number of limited search options.
[Scroll down list of options under 'Select the AustLII Database(s) to search:']
Let us say we want to find any legislation concerning adoption in Australia. We will search simply for legislation name and search for the word 'adoption'. This time I do not want the results ranked by relevance, I simply want to see them jurisdiction by jurisdiction. Instead of choosing all legislation databases I had chosen just Commonwealth legislation so I will do it again. So we find 43 pieces of adoption legislation in Australia, presented back to this time jurisdiction by jurisdiction, statutes and regulations, consolidated and sessional.
[Enter search term 'adoption' after changing settings to 'this legislation name', 'All legislation databases' and turning relevance ranking off; Results displayed - like this ]
It has been suggested I mention what consolidated means but I do not know if that is really necessary. The legislation that we do have on AustLII from all jurisdictions is provided with regular inclusion of all amendments to each original Act. So we have databases of the legislation with amendments included and separate databases of Acts as passed in each year.
[Web page: Features for users ]
You have noted that there are various hypertext links within the documents that we display. We call that our rich hypertext markup: at present there are over 22 million hypertext links automatically inserted into our databases each time the databases are rebuilt after inclusion of new data.
[Web page: Example of South Australian section with links ]
These includes links within and between statutes, and here is an example of it, a piece of South Australian legislation, similar to the one before where we go to the definition of 'child' in that case. You can also see that there are cross-links to other pieces of legislation which work equally effectively. This is done by hypertext markup software written by Andrew Mowbray.
[Web page: High Court decision with links ]
Similar software marks up our case law so that in a High Court case that I have just gone to. If we go to one of the footnotes there, there are references to other High Court decisions which take us directly to those decisions. Similarly, as you can see, there is a veritable thicket in this particular case of links from references to sections of Acts, directly to those sections. This, of course, greatly increases the utility of the case law and the legislation compared with reading paper copies.
[Web page: Features for users ]
[Web page: Usermark ]
So that you can believe that this is done automatically - although it would be hard to imagine putting in 22 million hypertext links by hand - let me give a demonstration of the automated mark-up using our 'Usermark' tool. Imagine, for example, that in a case or a learned article someone wrote 'in Mabo 175 CLR 1 the High Court considered section 7 of the Racial Discrimination Act 1975'. I enter that text in this window and press 'Markup Now!'. The markup software automatically works out where the hypertext links are to those various items of text in the 7 GB of data on AustLII. As you can see from the result, it goes to Mabo, and can it find fundamental to enable us to create the facilities that are on AustLII.
[Laurence West-Knights: you can do this for yourself, using the 'skeleton' and instructions in the last paragraph of this page ]
[Web page: Features for users ]
[Web page: s35 Copyright Act ]
One last example is what we call noteups. Every section of an Act on the AustLII system appears as a separate web page so all Acts are broken down one section per page. Let us look at s35 of the Copyright Act. At the top of every section, in this line of buttons, there is a noteup button. If I click on 'Noteup', it is not a hypertext link but it executes a pre-stored search over the whole database to find all cases and other statutory provisions that refer to the section that we have just been looking at.
[ Search results ]
This automated noteup facility is achieved by using the automated hypertext markup we have just been looking at. Wherever a hypertext link mark-up software, the 'Noteup' search will then go and find that hypertext link. The mark-up software is considerably more sophisticated in finding all the various ways by which a judge or a draftsman might refer to section 35 of that Act than any individual user is likely to do left unaided, typing in search terms themselves. It is surprisingly difficult to find all references to a section of an Act via free text search.
[Web page: Features for users ]
I hope this brief tour has given you a reasonable idea of what makes AustLII different technically from other sources of legal information. We are continuing our research and development into a wide range of other enhancements based on automation. One new research direction is multi-jurisdictional point-in-time legislation, the feature of feature of being able to find the state of legislation at any given point in time which has been mentioned in relation to the statute law database here in the UK. AustLII has just received research funding to work on that problem. You can already do that with Tasmanian legislation, but the challenge for AustLII is to generalise a technique across all nine jurisdictions. We hope that within the next three years all of the legislation on AustLII will have that feature.
Where does this automation-based approach leave AustLII has in relation to other providers of legal information? Our first rule is if we cannot automate it, leave it to the commercial publishers. If it has to be done by human editing, then it is the proper role of commercial publishing and we do not attempt to be involved in that. On the other hand, if we can automate it, then it is effectively no longer saleable value-adding, it is something that is worth being given away for free. We sometimes say that through our automation innovations we try to 'lift the bar' as to what is saleable value-adding. By doing so we try to increase the competitiveness of the legal publishing industry as a whole, and to improve the quality of the products from all sources that are available to the public.
I would like to finish this discussion of technical aspects of AustLII by restating that AustLII's software is available to similar institutions in other countries. If they have a commitment to free and non-profit access to law, and both the technical and institutional capacity to make a success of it, we would like to be able to provide some assistance.
[Web page: Public policy ]
Having looked at the technical side, I would like to move on to the public policy considerations that lie behind AustLII. We have aimed for access to what we call 'public legal information': primary legal materials and some official secondary materials such as law reform reports, Royal Commission reports, and the like. It has been our approach since starting AustLII that public policy should aim to maximise access to this public legal information because to do so supports access to justice, it supports the rule of law (as our opening speaker has stressed), and it supports democratic institutions. It also supports business efficiency by enabling businesses to obtain readily a wide spread of legal information and sometimes to be able to use it without the intervention of legal professionals. It increases a country's international transparency and therefore its potential for foreign investment, export earnings and the like. For all those reasons, we think that maximising access to public legal information is the direction that public policy should take.
[Web page: Six obligations ]
We have, since 1995, attempted to articulate and argue for essentially the same public policy agenda, and after five years there seems to be a general acceptance of such policies in Australia. I will explain some of the six elements of that public policy agenda.
First, we argue that public bodies, (courts, tribunals, offices of parliamentary counsel and the like) should provide to those who wish to use it, their output (their cases, their legislation etcetera) in a completed form. All Australian parliamentary counsel provide AustLII with consolidated legislation. 'Consolidated' legislation, involving provision of updated versions with amendments from time to time, is no longer regarded as a value-added product of some sort that should be saleable in any Australian jurisdiction. It is something that the government accepts it has a duty to provide to the public and does so by providing it to us and providing it to others to distribute, and by providing it through government web sites. Similarly, Australian courts and tribunals always complete the job, as it were, of producing their decisions by providing written decisions and providing those written decisions to AustLII and other publishers for re-publication. AustLII does not pay any Court for its decisions, and none have refused to give them to us.
The second element is that the output of these public bodies should be provided in an authoritative form so as to enable its citation and proper use within the legal system. That has led to the point where Australian courts in all jurisdictions now provide, with their decisions, a court designated citation. They do not any longer rely upon commercial legal publishers to provide an authoritative means of citing their decisions.
[Web page: High Court's court-designated citation ]
Here, for example, is a very recent Australian High Court decision which has the court designated citation, [1999] HCA 57. All of Australia's superior Courts have now adopted the principle of 'Court-designated citations', and many other Courts and Tribunals are following suit.
[Web page: Pinpoint link to High Court decision ]
Similarly, some Courts are now providing paragraph numbering of their decisions to enable pinpoint citation. So I can jump directly to paragraph 14 of that judgment. It is not a paragraph 14 that has been inserted by AustLII, but paragraph numbering that has been inserted by the High Court and is therefore medium neutral and vendor neutral, and can be used by all publishers to give a consistent and coherent means of providing pinpoint citations to cases. That is now becoming the norm within Australian courts.
The third principle is the need for provision of public legal information in a form that best facilitates dissemination. I am happy to say that after some years of AustLII working with the courts in Australia to assist them to learn how to do this, most courts now e-mail their decisions directly to us, sometimes within hours. They do so in an increasingly standardised form through the production of their decisions using templates that have been worked out according to various standard-setting committees, in which we have been involved and the Australian Institute of Judicial Administration and others have been involved.
Relevant to our fourth and fifth principles, all of the courts and parliamentary counsel in Australia provide their output to us for free. We pay nothing for the information we receive from any of them. Some still charge legal publishers varying amounts. Our policy is that public legal information should be freely available to all republishers on a marginal cost recovery basis, but while we give our verbal and moral support the legal publishers have to fight their own battles in that area.
The sixth and last principle is that we argue that, despite our stress on the provision of the information to third parties for re-publication, it is very important that public bodies keep, in a computerised form, a properly maintained back-set of their cases, legislation or reports. This will protect late entrants who come into the publishing scene, so as to increase the amount of potential competition, and just as important it protects the public interest in the data set and the public body's ability to facilitate alternative sources of supply if existing ones prove unsatisfactory for some reason.
[Web page: Public policy ]
So that is in outline the public policy agenda that we have advocated in Australia with what seems to be some success.
[Web page: Independent source ]
It is increasingly the case that courts, tribunals and governments are providing cases, legislation and reports for free access on their own web sites. Before leaving the public policy considerations, I would like to stress that we think that even where such free access is being provided by 'official' sites, it is very important that independent providers of that information, such as AustLII, continue to provide access to the information. There are AustLII facilities that I have demonstrated such as the benefits of searching all sources with one search, and greater dissemination of the information because of high throughput and access rates to AustLII, that ensure a higher level of access to the information than is likely from scattered 'official' sites. More important is that AustLII provides different forms of value-adding from the 'official' sites, and different classes of users have different needs and appreciate different forms of accessing the information. Our continuing provision helps ensure, by competition, increasing quality from the official government sites as well as increasing quality of our own provision. Also, an independent source such as AustLII helps to guarantee that that free access from 'official sites' continues, and that on a change of government there is not suddenly a reversion to a 'user pays' policy and continuous free access goes out thewindow. We are, in a sense, a guarantee against that. It also helps to ensure that free access is not second-rate access, so 'official' sites cannot give the public unconsolidated legislation but make people pay for the useful stuff, or that they provide case law in a form with no search engine, purportedly free but effectively useless. That is not the sort of public access that is needed. An independent site also helps commercial publishers obtain free access but, on the other hand, helps to ensure that they moderate their prices.
Official provision of free access to legal information through 'official' sites is certainly desirable but we stress that it is not enough. Even in the face of good quality government publication, there is a need for an independent source of free access to public legal information.
[Web page: Public policy ]
The last point on policy matters is simply to note that AustLII has treated questions of copyright as irrelevant. In order to operate a free access service, if you cannot obtain a steady flow of the legal data in computerised form from the official source, then you have no hope of providing anything. It is no solace to know that the data is in theory in the public domain if you do not have any access to it in computerised form. We are not in the business of scanning judgments or re-keying legislation or anything like that. If we do have access to the stream of data because of co-operation from the court, tribunal or office of parliamentary counsel, then we clearly are getting that on the basis of an implied licence to re-publish (and in some cases but not many, formal licence agreements). In the five years AustLII has operated, we have never entered into any discussions about copyright issues with courts, tribunals or offices of parliamentary counsel, other than providing whatever notice they request on the front of the data they provide to us indicating their view of the matter, or signing a standard formal licence agreement. The moral of our experience is that copyright issues should not be allowed to be used as a distraction from providing free access. Access is simply a policy issue.
[Web page: Impact ]
What impact has AustLII had? In terms of access, over one million pages are accessed per week according to our logs. Actual usage is higher than that because we do not see the many hits that come to proxy servers, we only see the ones that actually get through directly to us. So actual usage of our data, we think, is considerably higher than a million hits a week.
In terms of efficiency, on the basis of our current running costs of about A$500,000 a year and the number of hits we receive, it costs less than one Australian cent per page accessed, where a page is the text of a whole case, or of a section of an Act, or of a chapter of a Report. It costs us less than one cent to deliver the full text of a case or a section of an Act to our users. We think this give AustLII a fairly unarguable case that this is an economically efficient way to provide access to the law. Due to the economies of scale we have now achieved, we can add a new database to the AustLII system for around about on average A$5,000 per annum. Economies of scale have reduced those costs considerably.
Our users come from across the whole community. It is difficult to precisely assess this because you have the 'dot com' (.com.au) and 'dot net' (.net.au) sub-domains covering (and therefore obscuring) business users, lawyer users and the general public. From other means of measuring access from user surveys and our feedback we know that a very considerable number of members of the general public use our facilities, often for things such as their own family law disputes, or for tenancy matters, but also for browsing and accessing an enormously wide range of legal information. Many businesses also do so, particularly in the area of industrial law but also, for example, the most popular New South Wales legislation indicates that it may be real estate agents who are making very large use of that particular information. We have about 20 per cent usage from the educational sector, 5 to 7 per cent from government, and about 15 per cent from overseas. This includes, on an analysis of our 1998 case law statistics, that we exported last year 80,000 Australian cases to the United Kingdom. Unfortunately, I would have to add we do not get anywhere near as much case law back in return from web sites at this end of the world. Analysis of our user survey also shows usage from the whole community. We estimate that about one third of our usage is from lawyers, which leaves a lot of room for use by others.
[Web page: Top 20 cases ]
What do people access? One interesting aspect of an analysis of our top 20 cases accessed in 1998, put together to demonstrate to the Supreme and Federal Court judges' conference, was the continued high levels of access to cases such as Wik and Mabo from 1992 and 1996. 'The Tasmanian Dam Case' of 1983 was our 12th most popular case in 1998. The idea that for some reason or other decisions should be taken off the House of Lords site after a couple of years seems rather strange, given the evidence that we have of the very considerable ongoing desire by people to access legal information on the web.
[Web page: Sustainability ]
Some of you are probably thinking 'this is very interesting but where does the money come from to do all this?' Our annual budget, as I have said, has been up to now around A$500,000 for the last couple of years (much less when we started!). We fund AustLII on the basis of what we call stakeholder funding. Our categories of stake-holders are various. They range from organisations that want legal information published efficiently such as, for example, the Department of Foreign Affairs and Trade that I mentioned earlier, to organisations that represent categories of users. Rather than AustLII charging individual users, some organisations fund us on behalf of their members en bloc to assist their members to access the law. For example, the Australian Business Chamber wants employers in Australia to have effective access on the web to industrial law information, so it provides funding to us to provide that industrial law information. It does not care that the trade union movement effectively acts as free riders to the information that it provides because, in return for the free access it subsidises, its members get free access to all the other free categories of information on AustLII. In effect, such organisations simply recognise that by funding a small part of the overall system, their members obtain the benefits of all of the other funding sources we obtain.
Research funding bodies have supported us, both to do research on specific forms of computerisation of legal information, and to provide 'research infrastructure' to assist all other academic legal research.
There are emerging new categories of legal publishers who want to develop new forms of value-added legal publishing built around the free access resources that is we provide. The Australian Business Chamber also plays that role. They are building a workplace management law site where they provide headnotes and other forms of annotations to the industrial case law and legislation available on AustLII. They link through to our primary legal materials rather than trying to duplicate them (which would be prohibitively costly). There are a number of other innovative publishers in Australia now starting to work on that model of building value-added products around free access materials.
[Web page: Stakeholders ]
A list of our major stake-holders for 1999 and for 2000 will give you the facts and figures. From the 1999 range of funding sources the important thing to note is that there is such a diversity of funding sources. We can afford to have one or two funding sources 'drop out' every year provided we can keep on replenishing them. For example, in 2000 our funding from the New South Wales Law Foundation (that has been so generous to us in the first five years of our establishment) will finally phase out, but the Australian Research Council's new funding will comfortably fill the gap. In some of our funding applications, government departments and industry bodies join in with us as industry partners.
[Web page: Wish-list ]
I would like to conclude with what I have described as 'a foreign lawyer's wish list for access to UK and Irish law'. It is not my function or AustLII's function to say what should be done here to achieve better access to legal information but I can say, as a foreign lawyer who wants to access UK and Irish law, what I would like to find when I am doing my research. I would like to find one independent site for UK case law and legislation. Ideally, I would hope that materials from the Irish Republic would be included in that one independent site. I would like to see high quality search and hypertext facilities that unite the whole collection and make it seamlessly navigable. For that to be possible, I know I would need to see public bodies in the UK and Ireland providing free access to their output to that independent site, because otherwise it cannot possibly be achieved. As I have pointed out, that provsion would have to be in an efficient electronic form of delivery and in a completed form. There would obviously be some need to be some sort of funding mechanism but what form that would take is not something I could usefully speculate on. I would also like to see access via official sites, in addition to but not in substitution for an independent site, and I would like to see innovative commercial sites providing different forms of value-adding to those found on the official sites and the independent free access site.
[Web page: Can wishes come true?]
That is ideally what we would like to see when we are doing research from countries all over the world. Can it come true? There are many reasons to take heart, if AustLII's experience in Australasia can be used as any guide. There are a number of jurisdictions here now: Scotland, Wales, Northern Ireland, UK, Republic of Ireland, and smaller ones. We cover ten jurisdictions in Australasia so multiple jurisdictiions are no bar to doing something effective. In fact, they help you surround the bad examples with good examples. As I have mentioned, if AustLII can lend a hand with technical matters, it will be forthcoming. I'm sure that other public legal information institutes like Cornell and LexUM would take a similar view. The funding requirements to establish an independent source are reasonably modest, if it is set up in the right environment. For a site to have a very significant impact in the UK, I cannot imagine that its first year of operation would cost much more than 100,000 pounds. It would be difficult to spend much more money than that to get something going. The task of official bodies is not all that hard. The main thing is: 'provide the data'. That is really all that is needed from them. The main ingredients needed are goodwill, cooperation, and a desire to maximise public access to the law. The rule of law and access to justice deserve nothing less than that.
Thank you very much for your attention. [Applause]
THE RIGHT HONOURABLE LORD JUSTICE BROOKE: That is a dream. I share it and I know a great many people in this audience share it and surely, if Australia can do it, this country and the Republic of Ireland can do it too.
To discuss how we can do it, I am going to leave the platform and hand it over to a panel of all the experts: Amanda Findlay, from the Lord Chancellor's Department, the director of Private and Public Rights, has taken the place of Annette Vernon on the platform; Edward Donelan from Dublin, who is in the statute law revision division of the Attorney General's Office; Professor Abdul Paliwala, who is a walking encyclopaedia of matters relating to computers and law from the University of Warwick; Professor Richard Susskind, ditto, from the University of Strathclyde and all over the place; Laurie West-Knights from the Bar who knows a great deal about these matters, and Graham Greenleaf.
I am going to stand down now and ask Richard Susskind to take over chairing what comes now.
PROFESSOR SUSSKIND: Good evening, my Lords, ladies and gentlemen. I am sure you all share with me both a fascination and an admiration for everything that Graham and his team have done. It is quite remarkable, unparalleled across the world, and something that we really have to take very seriously in this jurisdiction.
I think the focus of this evening should be questions not just for Graham but we have actually assembled across the table here a team who represent a variety of interests in this field. So I would like really to throw it open immediately to the audience for some, I hope, testing questions. Could I ask each of you to do something? I believe there are two roving microphones. If you could wait for the roving microphone and then let us know who you are and where you are from, that would be ideal.
MR MICHAEL FRANKS (Chethams): I noticed with interest that the sponsors for the Australian system did not seem to include what I might call the Bar associations and the professional associations which rather puzzled me. Was there any particular reason for this? I would have thought that if we want to kick-start this type of institution into existence in the UK, probably the quickest way to do it would be for the Bar Council and the Law Society possibly to bury the hatchet on this one occasion and see if we could not provide the funding for it. I say that as a Law Society council member.
PROFESSOR SUSSKIND: Perhaps, Graham, you could answer from the Australian point of view and then we could throw it over to Laurie for views on the Bar's role, and then if we could hear the Irish perspective.
PROFESSOR GREENLEAF: It is a good question. There are two answers to it. The first is that for the first few years of our operation the New South Wales Law Foundation, to some extent, funded AustLII on behalf of the legal profession as well as on behalf of the general public. So that is partly the answer, that we did have money coming from that direction. Also we are keeping our powder dry. We are waiting for when we need to call on the legal profession and other parts of business to sustain what we are doing and we will certainly be asking for contributions from them then. In fact, we are moving now into a process of approaching all of the Bar Associations and Law Societies in Australia. Remember, we have nine jurisdictions to deal with so it is a more complex matter, but we have not forgotten them.
THE CHAIRMAN: Thank you. Laurie?
MR WEST-KNIGHTS: I think one of the reasons why the Bar has not put itself forward as an overt sponsor of this so far has been because although this evening Graham is received rightly with rapture, this is a relatively new thing in Australia. It is even newer here. It is only relatively recently that the AustLII paradigm has come to be the subject of smiles all round. One of the things that has been levelled at this idea has been that it is a wheeze by the fat cats to get something for free. In other words, the lawyers want to stop having to pay lots of subscriptions for law reports and somehow this is a trick to line the fat cats' pockets. It plainly and obviously is not.
However, I would have thought that the Bar is a plain and obvious co-sponsor of UKLII or ENGLII, or whatever it is going to be called. It so chances, as some of you know, that the General Council of the Bar levies a subscription on each practising barrister. I am not a member of the Bar Council so I am not binding anybody by saying this, it is just my view, but I can see very little that would be difficult in adding five pounds to the GCB subscription to be hypothecated towards something like this and that would raise 50,000 pounds. Indeed, that may be far too much because, after all, there are 90,000 solicitors, all of whom as we know make a great deal of money, and of course I am only talking about England and Wales. We are talking here about the other two jurisdictions as well.
So the short answer is there are, I would suspect, plenty of prospective sources of funds. The Bar logically should be one of them unless we need to follow Graham's track and keep the powder dry in that regard. If you think I am being selfish, it is only five pounds out of my pocket and I would personally happily pay it.
MR DONELAN: I think one of the good things we inherited from Britain was the common law system. One of the bad things however, we inherited was the divided profession. As a result of that, we might have some difficulties in establishing common databases. Nevertheless, I think I would like to respond to Professor Greenleaf's suggestion and say that it is 25 something that could be possible, particularly in the context of the European Union. There seems to be a pattern emerging where each member state is developing databases of either legislation or case law or both and in keeping with that in Ireland we have developed a database of statute law. I think the next phase of that should include the possibility of links with other parts of these islands.
PROFESSOR SUSSKIND: Thank you. Another question from the floor, please? Again, could we have your name and affiliation?
MR STEPHEN MASON (Kaltons): I came to be actually the first barrister to have written an electronic book which is available on the Internet. This is a highly specific question. I hope you do not mind me asking it, but I think it is quite pertinent. You made a point earlier on this evening, Graham, about statutes having only one section per page. The one thing about my book is that it is actually built or designed specifically for the screen and it is an electronic book, and it strikes me that the information that one should be putting over should use every available possibility of the screen and it interested me that you decide to put sections only on the screen but not when it comes to judgments. Is there any specific reason for that at all because it strikes me that the screen could just have limited information which could then be pressed over to another page at the bottom rather than having a scrolling mechanism?
PROFESSOR GREENLEAF: It is only a technical reason. We have not yet worked out a satisfactory way to automatically chunk case law into somewhat more bite-sized pieces but yet give a sensible search retrieval result. That is the reason.
MR JAMES BEHRENS (Serle Court Chambers): I am a barrister. What we have seen today, Professor, is a finished product or an almost finished product. It appears to be so. I cannot believe that there have not been some mistakes on the way which you can help us to avoid in this country. We see software being used in the courts today which have gone through years of development and it would be very helpful if you could indicate what mistakes you think we might be likely to make, which hopefully we could avoid.
THE CHAIRMAN: Graham, would you like to bare your soul?
PROFESSOR GREENLEAF: I am not exactly sure that the mistakes we have made in doing things would make sense to explain. I cannot quite bring them to mind. Getting the name right, the unpronounceable AustLII, getting a more sensible name to start with, would have been a good decision but we are stuck with it now and we are used to it. Just to turn things up the other way, one of the techniques we have had for trying to avoid mistakes is not to be over-complicated and not to use the most advanced whizz-bang technology that is out there. We have stuck to plain HTML pages, no frames, no fancy graphics, no difficulties in download times and the like, no PDF, just plain old HTML, so as to maximise retrieval speeds and maximise the range of users with all sorts of different browsers and equipment quality out there that can use the system. Anything on AustLII can be effectively accessed using a Lynx browser and for that reason many people with visual impediments have no difficulty whatsoever using our system because it is basically designed to take those sort of factors into account. So avoidance of over-complexity, I think, is a very good rule when we are dealing with legal information.
PROFESSOR SUSSKIND: It seems to me that such a system has at least four categories of user. We have advisers in the law, lawyers and advice workers, legal academics, legal information providers and citizens as well. I wondered, Abdul, if you could give the legal academics' perspective in terms of the use of legal information products, parking for one second your expertise in the development of these systems, representing in a sense the interests of the academic world, the significance of this kind of resource for UK legal systems.
PROFESSOR PALIWALA: In many respects, the academic user is no different from an ordinary lawyer. The particular significance of hypertext type tools for lawyers is that we are by nature hypertext users; we are by nature browsers. We want to have our information in comprehensive form. We want to have it hyperlinked so we can go from one bit to another to another. That was the logic in mind for the development of the consolidation of the law reports, if I may say so, with the development of the Incorporated Council of Law Reporting, because until then we had a mess in this country. The chronicler of the law reports talked about it. What we have now is the same sort of problem. We have the problem of an enormous development of data sets and they are all over the place. There is a lot of amazing, exciting work being done but they are everywhere. If I could go specifically to the use by students, as I said, there is no great difference between students and lawyers, but as students and academics we like to have access to as much law as possible as conveniently as possible in order that the work of study and research that we engage in can be done.
We are in many ways capable of getting hold of that information. Our problem from the point of view of even developing the information data sets, as we have done over time, our problem in this country as academics is that whatever data sets available are incoherent but also they are too expensive for us as academics to use. The commercial data sets cause enormous expense and the academic community cannot afford that. What we have here is if we can all get together, different communities, the academics, practitioners, the government, if we all get together and cooperate in the way they have done in Australia, we could develop a resource to which certainly I as an academic on behalf of BILETA would like to say we would like to be involved in, in the work of development, in the work of use, et cetera, and that we could achieve remarkable results.
PROFESSOR SUSSKIND: We have also very fortunate on the panel in having Amanda Findlay, a senior policy member within the Lord Chancellor's Department. I think it would be helpful if people had a specific question or two to ask of the Government, if I may put it that way.
MR WILLIAM FLENLEY: I am a barrister. I just wondered, really copying that question, what the Lord Chancellor's Department perspective is on this and whether it considers it has a role to facilitate a production of the UK version of AustLII and also what other panel members thought of that view.
MISS AMANDA FINDLAY: First of all, I think I ought to say I am just overwhelmed with admiration for what AustLII have done and for the cleverness and creativity with which it has been achieved. It seemed to me that that was really the key thing that we should pull out of that, the fact that all of these people have co-operated and put their goodwill into making it happen. It seems to me that is the message I am going to be taking back, that courts, tribunals, parliamentary counsel, without all of them, I do not think it would be possible. That is a fascinating message, I think, for all of us actually.
The Government is looking at the moment beyond the needs of lawyers and academics towards the needs of the ordinary citizen as part of the Modernising Government agenda which you may know is dedicated to making everything more accessible by electronic means. The Lord Chancellor's Department at the moment is putting its main efforts into the community legal services web site which is not doing what AustLII is doing but actually is doing something interesting and, I think, related because what it is doing is bringing together a lot of information and a lot of web sites that, at the moment, are scattered all over the place.
The idea there is to make it easier for individuals to either get direct advice on something they are concerned about by being able to tap indirectly, for instance, to NACABx web site or to CAPAG's web site, or to get clear sign posts to where they might go for help if there is no standard piece of advice available. So, for instance, if you have a housing problem in Hackney, you will be able to put that into your search and come up with a list of people who might be able to help you, either solicitors or, I suppose, Bar direct, not for profit sector advisers.
That is doing something quite different from AustLII but I think one of the crucial things is that most of those providers actually rely on access to up-to-date statutes and up-to-date case law in order to be able to maintain their advice. So it is certainly a problem that we are going to have to tackle and it is something that we are thinking about hard.
I am not quite sure how we get from where we are now to where we want to be in the future because we have got what Richard calls legacies. We have got, as Professor Paliwala has said, this inherited mishmash, not just of databases, but of finance and funding and commercial arrangements for judgments, for the statute law database. I would not really want to be starting from here, if I had any choice, but I am. So one of the problems we are going to have to tackle is how we overcome where we are starting from in order to get to where we want to be.
PROFESSOR SUSSKIND: Thank you. Before we throw this open further to the panel, if I could get another few questions of Amanda, if you will, from the floor, and then you can sit back and relax and see what the other panellists have to say.
MR NICHOLAS DAVIDSON QC (4 Paper Buildings): I am a barrister and I happen at the moment to be Chairman of the Professional Negligence Bar Association. From that perspective, I do see a particular need for making information as widely available as possible for the legal profession in order to serve their clients. Many people will depend on the community legal service, others on small firms of solicitors who have the great advantage that they are readily accessible. It is understandable that those firms, like individual members of the Bar, are going to maintain limited libraries, and it seems to me that any assistance which can be given to make large volumes of material available is very valuable.
In that connection, it has always struck me that the European Union has been committed to providing information and providing it very cheaply. The European materials are much cheaper for all of us to buy than the English materials. I wonder whether you and particularly Mr Donelan would consider that that might be a better starting point than the purely domestic starting point. I would add that I am told that in Germany they have now reached the point that 80 per cent of all legislation is either direct community legislation or being handled because of the need to translate directly into international law.
MISS FINDLAY: That is a whole complex list of points, I think. Perhaps I had better not enter into 'Europe opposite domestic legislation'. I think we have got quite a lot of legislation of our own. The real problem there, of course, is that you can only see what the legislation looks like on line for free as it was passed, you cannot see it in consolidated form. I thought it was fascinating the way that AustLII has overcome this by getting parliamentary counsel everywhere to consolidate and e-mail directly to AustLII.
You probably know we have a statute law database which is doing the same sort of task but centrally. Centrally is obviously a bad idea in terms of keeping up to date but one of the things we have got to look at is how, when that statute law database is brought up to date, which is meant to be by next summer, summer 2000, it could be made more widely available in the sort of form that would be most useful to the people that you are talking about. That is a problem that we have got to crack. I do not know how we are going to do it but we know we have got to do it. I think it becomes very important also when we look at case law.
Murray Hunt is here who has been advising the Judicial Studies Board on the Human Rights Act which is one of my responsibilities now at the LCD. We know that when that Act comes into effect in October 2000 all of case law is going to be up for grabs. So it is going to be incredibly important that everyone working in the justice system can see the changes that result from decisions of the Divisional Court, from the Court of Appeal and the House of Lords. We have got the House of Lords web site with various remarks about the state of it, but at the moment the Divisional Court and the Court of Appeal can choose to put judgments on the Court Service web site and those are, I think, turned round reasonably fast. That very much depends on those individual judges deciding to do it. I hope that more judges will decide to do it. At the moment the Court Service web site is somewhat dominated by the Patents Court but that is not inevitable.
Henry, you are looking horrified at me and I am sure you put lots of things on, but it is not a general practice.
THE RIGHT HONOURABLE LORD JUSTICE BROOKE: Please could Amanda Findlay tell us what Government policy is in terms of encouraging the Supreme Court of England and Wales to put their judgments on the web site? The last three times I have attempted, they got lost somewhere en route and the message that I have been told to give to all my fellow judges is that the resources at present are so small, please would they only identify those judgments of enormous public interest? That is why there are so few. What is Government policy?
MISS FINDLAY: I think I am going to have to say this without prejudice. I am not aware that there is actually a Government policy. There is obviously a practical difficulty. It seems to me that we are going to have to sort that out. I am very grateful to Henry for giving us such a graphic illustration of the scale of what we have got to sort out. Can I take that away with me, thank you?
PROFESSOR GREENLEAF: Could I just intervene here and say I think this brings out one of the points that I was trying to make, that it is not so important that the courts put their decisions up on their own web site. The more important thing is that those decisions are made available in an efficient computerised form to those other parties that wish to put them up on the web and have the wherewithal to do it. If the resources were put into providing an efficient e-mail system to anyone who wanted to receive any decisions that come from the courts by e-mail, then access and competition would be facilitated very quickly.
PROFESSOR SUSSKIND: Edward, would you like to respond to the earlier question? I am conscious there is a lady who wants to ask a question of Amanda.
MR DONELAN: It is just a comment really. In relation to the European law, there seems to be a policy to consolidate a lot of the legislation but the difficulty, once you have access to that, is you have to trace it back to domestic legislation. I think the challenge for the future is going to be to establish databases where you can go in perhaps at the European level and then cross-reference to domestic levels. I think that is where we are tracking up in Ireland. We have already a government web site where the legislation from 1922 to the present day is available. The difficulty, of course, is we have a lot of legislation pre-1922 that we inherited from another island and we have to organise that and perhaps we could get some contributions from the Lord Chancellor's database.
But it seems to me that one of the things we are going to have to do is to deal with the case law as well. There is a Government policy in relation to information, that information provided by Government should be available free, and this includes statutes and although there is a charge for our CD Rom, it is very nominal, it is only 16 pounds. So in that sense law is accessible and the Internet access is free. The difficulty is going to be in getting the Law Reporting Council who publish the law reports and several independent publishers of law reports also to co-operate in what should a national and eventually an international database.
PROFESSOR SUSSKIND: A quick response from Abdul and then the very patient lady, five rows back, with a question to Amanda and Laurie at the tail end of that.
PROFESSOR PALIWALA: I would like to start by stressing that it is the free access to law which is the important principle, of course, the secondary one. If I cite you the costs for 1996 for the Government information systems budget, that is calculated by Stephen Saxby to be 2 billion pounds per year and employing nearly 20,000 people. Compared with that, what we are talking about is very small beer and really it is an issue of priorities and what costs mean in what context.
PROFESSOR SUSSKIND: I want to come back on that in a second but I really cannot wait any longer.
MS SARAH CARTER (University of Kent): I am a law librarian at the University. One of the banes of the life of law librarians in universities are litigants in person. Taking up your point about what people need, people actually need access to case law, they need access to legislation and they need it in a form that they can use. We, of course, are not allowed to provide them access to the electronic data sets because we are limited by licences, and so forth. I have to spend my time, which I am not supposed to because they are not part of my constituency, as it were, but I have to somehow show them how to find law reports, how to find statutes, and how to make sure that they are up to date. If I try to give them advice as to what is available free, they get to things like the Court Service web site, which is if I may say so, impossible.
PROFESSOR SUSSKIND: Thank you. I wonder if I could say a few words on that and hand over to Amanda? I was wanting to build on Sir Henry's previous comment about the Modernising Government White Paper. On 31st March of this year the Modernising Government White Paper came out and three remarkable targets were set. The first target is by 2002, 25 per cent of Government service should be deliverable electronically, by 2005, 50 per cent and by 2008 and 100 per cent, unless there are policy or operational reasons for doing otherwise. The current Government envisages that the overwhelming number of interactions between the citizen and the state will be mediated through a variety of technologies. What interests me in that context in relation to tonight is this focus on the citizen because Modernising Government, one element of it, is this whole idea that Government service should be citizen-facing rather than introspective. One of the dangers when we gathered together within the profession is that we actually only look at one bit of the jigsaw. I think it is absolutely fantastic what AustLII have done and there is no doubt that that quality of primary source information system would be necessary and possible within this country.
But I think we need to go far further. We need to look at systems which actually help to get citizens themselves who need practical, punchy guidance as well perhaps as access to primary resources. Although it may be you can help and point them to case law and legislation, for many lawyers it is tricky working through the primary source materials. For non-lawyers, they would actually by and large, research suggests, be guided by less formal materials. That is the kind of secondary material that in a sense is beyond the scope of AustLII but also, if we are trying to think ahead, as a number of us are, ten years ahead, I hope we would have both the AustLII infrastructure in place as well as a rich body of systems that would actually guide the citizens. They would be, in the jargon, life event based so when people have problems, for example, they lose their jobs, they go on to a resource which actually tracks them through the numerous legal issues that arise, the employment law, issue of social welfare, and so forth, not pre-supposing that you know the key words to ask or the instruments - legislation or case law - to which you need to go but tracking you through these.
So looking a little longer term - and I think we must - while we all want AustLII and we certainly do, and we can talk in a second about how we can achieve that, there is a whole suite of other facilities we need in the medium to longer term as well.
MR WEST-KNIGHTS: I wonder if I could take a couple of minutes on that? Indeed, Richard, with respect, I am going to depart from your focus to a degree. We are all hugely grateful for the vision which Richard has brought to bear, him and others, but particularly him, that has resulted in our finally having an executive and, possibly, a legislature who are looking ahead and planning and thinking what life is going to be like in five years' or ten years' time and attempting some form of overview.
However, there is a 'but' there that I think we have got to stop listening to. It will be necessary to look to five years' and ten years' time and to look for the rich body of punchy secondary materials, et cetera. Let us just put that to one side for a moment.
Anybody who tells the truth about Government policy in respect of IT will say that they have a clearish vision of what it is going to be like in five years' time or might be like in ten years' time, but no real, hard idea as to how to take the first step on that march of 10,000 paces. I would like to propose that we look to make the first step and not start considering how much we need to take into account what is going to happen when we have gone 10 kilometres. The first step is to say 'let us do as much of a AustLII, now, as we can, now' and ask ourselves the question, 'how do we acquire what?'
THE CHAIRMAN: Laurie, can we ask the audience in a second to -
MR WEST-KNIGHTS: In 30 seconds' time because I am going to propose something that it is very simple. Current case law is, unlike in Australia unfortunately, not word processed by the judges so we have to pay for it to be turned from words into text. We are told that nothing about the contracts that give rise to that precludes a free copy being made available to the database so: let it be made so.
The other aspect of this is historical materials. There are people to persuade in respect of that. I am a member of the Incorporated Council of Law Reporting. There are other members present. I personally do not think it would be inimical to the continuation of traditional law reporting if the entirety of that database, leaving aside headnotes and so forth, but just the text, were released.
That, however is step 3. Step 1 is start to capture the data now, set up a UKLII, fund it, (it would be minimal), and get on with it. Today. [Applause]
PROFESSOR SUSSKIND: Agreed. Can I ask the audience, does anyone have a problem with any of that? I am talking in the long term as well and do not disagree with anything Laurie says. Does anyone in the audience think that the idea of an AustLII for the UK is inappropriate? We have an influential audience here, self-selecting, I agree, but the very people who want to come along, and of course we are all very interested, then this room can make it happen. Does anyone have any problems at all with the concept?
MR STEPHEN MASON: May I be permitted to give you one example in practice? I am sorry to speak twice. Last year I led a local action group in my area for judicial review proceedings against Bedfordshire County Council. We actually asked the judge, Mr Justice Richards, to post the judgment on the Internet, and that took five or ten minutes' discussion. I finally discovered several weeks later they could not do it for the very reasons that were mentioned earlier on. I led something like 800 local people in this that raised 30,000 pounds and all we had at the end of it was one 27-page judgment which I could not photocopy, but everybody wanted to know what happened. If it had gone to the Internet they could have all seen it for themselves.
I, for one, would like to put my five pounds where my mouth is and I would give it to Laurie tonight.
PROFESSOR SUSSKIND: Does anyone in the audience think that the organisations which they represent or to which they belong would be unwilling to provide funding and support? As I say, everyone in the room, almost by definition of being here, is keen. Getting a sense of what we are trying to achieve, maybe championed by the Society for Computers & Law, maybe by other independent bodies, we want to go for this and, as Laurie said, in the short term and build towards what I believe is important for the long term, do people feel there is going to be resistance from their own organisations, whether they be law firms, publishers, the Law Society, Government departments?
[Silence]
So we are in violent agreement.
MR STEPHEN HOCKMAN QC: Can I just mention, if we are to start where Laurie says we ought to start, and I respectfully agree with him, the first thing that is going to be necessary, it seems to me, is the co-operation of the judiciary, particularly the senior judiciary, some of whom have been good enough to come here this evening. One of the concerns which I rather suspect that they will have, and this was expressed at a meeting with Chief Justice Black some weeks ago, is as to volume.
I wonder whether Graham could just give us the same reassurance today as Chief Justice Black gave us then. The concern of the traditional lawyer is that if all case law, even just all future case law, is put onto the Internet, lawyers and indeed the public will be swamped and that there will simply be too much. We did get an answer to that and I imagine that your answer, Graham, would be the same, but I think that the key psychological barrier at the moment for many people, perhaps including the senior judiciary, will be to persuade them that doing this will not involve creating something which is unmanageable, which is a sort of leviathan which nobody will actually use. Can you help us on that?
PROFESSOR GREENLEAF: Yes, I think I can. In Australia now for the best part of five years there has been available via the Internet a vast array of case law, particularly from the Federal Court, but also from many state supreme courts and others. I addressed the Conference of Federal Court and Supreme Court Judges in January this year and this issue was discussed. The overwhelming view of the judges present was that it simply had not been a problem, and the one or two who were there who I do not think were really Internet users themselves all that much who thought it might be seemed at the end of the discussion to agree that it was well within their powers to control excessive pointless citation of repetitive decisions and that the answer lay in the hands of the judges, but actually it was not a problem anyway.
Could I, Stephen, just address the other point that you started with, which is absolutely correct, of the importance of the co-operation and encouragement of the most senior members of the judiciary? I am afraid I have been a little remiss this evening in my remarks in not really stressing the enormous co-operation that we have had from the senior members of the judiciary in Australia and, in particular, successive chief justices of the high court who, from the outset of AustLII, made clear their enthusiasm for the concept. The High Court was the first court to give us their decisions and have led the way in developing standards such as the court designated citation standard. Other courts have followed suit progressively around the country and an outstanding example has been the New South Wales Supreme Court which was probably the worst jurisdiction in Australia in terms of the consistency and quality of its electronic provision of judgments until Chief Justice Spigleman took office last year and within six months that court came up to the standards of the High Court in the frequency and quality of provision of its decisions.
So, judicial leadership has been crucial to what we have achieved and we have been deeply grateful for the assistance we have received. I hope it happens here.
MR WEST-KNIGHTS: Can I add that Graham does not need to be corroborated by me, but if you found what he said this evening uplifting, to hear the same message being given by a Chief Justice of the Federal Court of Australia, speaking with the enthusiasm that Graham brings to bear, but from the practical basis of a working, extremely senior member of the judiciary was simply remarkable. I mean his response, because I planted the question, to 'what about excessive citation?' . It does worry me, and do not let us underestimate it: the biggest single fear amongst members of the judiciary and senior lawyers everywhere, I think, is that you have suddenly got 100,000 cases when you would have had 50 and you only reported the ones that matter. The short point is that that cat is out of the bag and you have seen the mechanisms that can be used at AustLII to sort the chaff from the wheat. Again, Chief Justice Black did not simply say, 'We are capable of exercising judicial control over the excessive citation of authority', he said: 'it just does not happen.'
MR ALAN STORY (Kent Law School): I teach intellectual property law at the University of Kent where Sarah is a law librarian. The one message I take from Graham's comments is that there was a very strong philosophy about free public access for all. It was not access for the lawyers, it was not this, it was not that, and to me my worry would be that in fact some special interest group would capture this, it could be the Law Society, it could be barristers, it could be the Government.
I really feel very strongly that - the Law Society or Government can put in their money, whatever - it should be outside that to in fact give the kind of philosophy. I teach intellectual property. Copyright has no role in this field. The HMSO's position on copyright is dead wrong. We have to have this strong philosophy not to take the form of having all these links, and all this kind of thing, but a very definite philosophy behind this, and I think that that is one of the most important things that has kept this idea where it has gone in five years, not only technology but this view of what is important, free public access for students and others. You should see what the problems are to try to get your students access to legal materials in this country. It is scandalous particularly from the academic journals, the triple-dipping that goes on by academic publishers in this country, the costs of journals, the costs then of copyright, licensing, then if you try to put together a course pack, they are charging 10p a page for your students. I have a friend who has 50 pages, and they are charging $15, one of the Butterworth or Sweet & Maxwell, who in fact have students read academic articles. It is really quite scandalous.
PROFESSOR SUSSKIND: I think we should address this issue that is, indeed, the title of the event. I wonder if each of the panellists could give us a sense in which they feel that things have not been achieved because of this public policy issue or whether or not it may simply have been, in AustLII, the good fortune to have Graham and colleagues around, entrepreneurs who made it happen.
Laurie, taking it in this direction, perhaps if you can in 30 seconds, a minute, do you feel there are any fundamental public policy obstacles to the achievement of what you would like to call UKLII?
MR WEST-KNIGHTS: No. There has been a lack of desire to do it because there has been a lack of sufficient understanding of what it is we are all talking about. In my experience, and I have had the opportunity thanks largely to Sir Henry, to show this to people up to and including the top judiciary, once they see what we are talking about the penny drops. It has been very difficult to convey to people just what this is about.
I entirely agree with what the last speaker has said. Nobody must be allowed to hijack this. It has to be a public thing and there needs to be a UKLII.
The only caveat I would want to enter is that I actually think the speaker is currently unfair in respect of the present regime at HMSO which has undergone a radical transformation thanks, I think, in large measure to the person of the Comptroller who is here. I do not want to drop her in it and if she wants to contribute to the debate, she can, but the wind is going in the right direction practically everywhere.
When I started writing and speaking about this 3 years ago there were not many of us with any conception of what this was, I am delighted that momentum is now here. There is no fundamental block to this. It requires the desire to achieve it at the right level of Government and some purposive use of copyright. Copyright has something to do with this because at the moment the publishers have got the copyright in some of the materials that are not otherwise available. So there is a purposive requirement but, otherwise: goodwill and the tiniest amount of money.
PROFESSOR SUSSKIND: Thank you, Laurie. Abdul, the fundamental question in the sense of the title of the event, Freeing the law, any public policy obstacles that you perceive?
PROFESSOR PALIWALA: I think none whatsoever. In 1996 we had a seminar on user needs in relation to electronic law reports involving really quite senior people, including judges, lawyers, academics, et cetera. The critical conclusion which came out of the seminar in 1996 - and we have come a long way since then - was the need for something of this nature. I believe that rather than talking about public policy obstacles, we should be talking about public policy needs for something of this kind. Like Laurie, I think we should try and develop something of this kind. The issue is the need for an independent organisation but with stake-holders present who would secure that independence and ensure standards, et cetera.
PROFESSOR SUSSKIND: Thank you. Amanda?
MISS FINDLAY: I would like to echo Laurie's point about HMSO leading the way by making legislation freely available, not just to look at but to reproduce, even in a value-added form. I think that has been an extraordinarily important first step.
I think we share with you the vision of where we want to get to. I am not sure we have public policy obstacles. I think we have practical obstacles in terms of what we have inherited, where we are having to start from and how we can move forward from there. That is something that we are going to have to address. I know my minister, David Lock, was very much hoping to be here but has been kept back in the House of Commons by three line whip this evening unless he snuck in unseen by me, but I am sure he will be asking me tomorrow what you have all been saying. What are the issues that we ought to address?
Give us a breathing space while we look at how we overcome those practical considerations and take nto account policy that has been delineated this evening.
PROFESSOR SUSSKIND: Thank you. If we can jump to the end and then Graham would like to end.
MR DONELAN: There is no proper policy reason why legislation should not be freely available in Ireland. In fact, the government took a decision in 1988 not to charge copyright in respect of Acts where, for example, a commercial publisher wanted to set out an Act in an appendix to a book and I have been the beneficiary of that on a number of occasions which pleases me no end.
I think that sets up the possibility of all law being available. There has been a number of inter-departmental committees looking at a number of issues relating at the information age, including the form and structure of web sites, and they also looked at the issue relating to costs of legal information and government information generally. It came to the conclusion, and I think they will recommend this to the Government, that all government information, including legislation, should be freely available.
The issue will arise, I think, in respect of case law and the judges and their copyright over judgments but I think that can be resolved. I think the view in Ireland would be that there are no public policy reasons to impede the free availability of information, particularly information on people's legal rights and obligations.
PROFESSOR GREENLEAF: I would just like to echo what a couple of the other interveners have said, that a genuinely independent body is really important, not one that is under the control of any particular sectional interests and, also, that there will be particular sources of information that prove to be real obstacles despite whatever degree of goodwill is around and I think it is very important that anyone trying to set up a very diverse free access site does not get obsessed with a particular court or a particular source of information as being the impediment to getting anything done.
Our experience has been to concentrate on the sources that were available no matter sometimes how minor to some people's views they might have seemed, in order to build up momentum and, in a sense, to surround the bad examples with good examples, and the momentum then causes the hold-outs to eventually see reason and adopt a sensible policy.
So my hope would be a very diverse range of data appearing on some independent source in a very short time can be achieved.
THE CHAIRMAN: There you have it, I think, a remarkable evening. Graham's presentation was marvellous and brought the whole field to life for all of us. There were some fascinating contributions from the floor because it does seem there is unparalleled support and very few objections in principle and practice for taking this ahead. We have heard from the panel, I think, a very strong indication that there is a will and indeed that Government policy supports rather than inhibits the development of this kind of service.
I am involved myself quite a bit with Government matters and I honestly believe there is as much will as ever there has been to make this kind of system a reality. It does seem to me, however, we are lacking what is coming to be known in the public service circles as the social entrepreneur, someone who takes this initiative by the scruff of the neck and makes it happen.
I have known Graham for many years and I know his colleagues and they were together an energy that actually made this happen. It is the same in law firms, the same in any organisation. Usually the great initiatives come from a very small group of people who work terribly hard and actually the danger with this kind of event, if we all leave the room in violent agreement, as I said earlier, that no one is holding the problem.
So I think it is absolutely vital, whether it is the Society for Computers & Law, the Government, whoever, if someone actually takes this problem away and within six weeks, two months, thinks of the establishment of an independent body that can drive this ahead.
I want, ladies and gentlemen, on behalf of all of you to thank Graham for a marvellous talk. [Applause]
That says it all. I would like to also thank the panellists for frank and extremely informed contributions and the audience for some great questions. I hope we can look back on this event as really pivotal in the history of on-line information systems for lawyers in this country. I am going to hand you back to our President for a few closing remarks.
THE RIGHT HONOURABLE LORD JUSTICE BROOKE: Just to say there are drinks upstairs on the way home.
Secondly, the judges got a little bit of stick just now. I am the representative of the Judges' Council. The Judges' Council do what I advise and I would be astonished if we were not on to paragraph numbering and neutral citation within a year. Thank you. [Applause]
(8.45 pm) (Conference concluded)
This is a transcript published on 19 November 1999.
Citation: Smith Bernal Ltd, 'Free the Law - How the Australasian Legal Information Institute (AustLII) Achieved the Free Availability of Legal Information on the Internet', Transcript, 2000 (1) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/00-1/transcript.html>.New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/free_the_law/transcript/>