On 8 November at Chatham House, SCL and other conveningorganisations combined to hear from Professor Graham Greenleaf about electronicaccess to legal materials in Australia and to examine the possibility ofemulating the Australian example in the UK.
I doubt that many of those attending the meetingexpected to be part of an historic event. But by the end of the evening, themood of the hall was so positive that it seemed clear that something stunningreally could be achieved. If we expected to stand and admire the achievements ofAustLII and moan yet again about the stuttering progress in the UK, we stayed tobe amazed by the realisation that what had been achieved in Australia wasattainable and practicable for the UK.
AustLII
In order to follow this report of the events of theevening, it is necessary to understand what AustLII is.
The simple part is to say that it is the shortened namefor the Australasian Legal Information Institute. That Institute is the holderof a vast range of primary legal materials of relevance to jurisdictions inAustralasia – legislation and transcripts of cases from a vast number ofcourts within the jurisdictions. These are held on databases which areaccessible on the Internet, free to users, searchable, kept up to date andlinked so that, for example, you can click through from a mention of a statutein a case to the full text of the relevant section in its amended form.
The Meeting
The meeting itself was an extraordinary collaborationbetween five different organisations: SCL, ITAC (Information Technology and theCourts), BIALL (British and Irish Association of Law Librarians), BILETA(British and Irish Legal Education and Technology Association) and IALS (theInstitute of Advanced Legal Studies). The common aim was to listen to ProfessorGraham Greenleaf, one of the founders of AustLII.
The meeting began with an introduction from StephenHockman QC, Chairman of the Practice Management and Development Committee of theBar Council.
He sought to define the topic to be covered and focusedon the promulgation of the law. Reflecting on the indignation which ThomasHobbes expressed at the difficulties which confronted the layman in ascertainingthe law, he expressed the view that, with the advent of electronic forms ofcommunication, there is to be a social revolution in this area unmatched sincethe invention of printing.
Stephen Hockman continued his introduction with areview of the current provision of legal information: HMSO’s site, the limitedavailability of appeal court cases in England and Wales, the much widerprovision of recent cases for Scotland and access to human rights and EuropeanCourt of Justice decisions.
There were, in his view, policy issues which requiredGovernment intervention (or at least a benevolent indulgence), particularly asregards the Statute Law Database and the availability of transcribed judgmentsin England and Wales. He detected signs that a positive view was likely toemanate from Whitehall and emphatically expressed the view that a Governmentconcerned about ‘information exclusion’ should meet the problem identifiedby Thomas Hobbes centuries ago: if citizens are bound by the law, they should atleast have the opportunity of knowing it.
Professor Graham Greenleaf
What Graham Greenleaf told us was that AustLII’sfoundation arose from a commitment to free access to public legal information.It is now financed by stake-holders – there are no charges and no advertising.He dealt with both the technical and the public policy issues.
Technical Matters
AustLII is ‘based around large-scale provision oflegal information’. There are 80 databases of case law, legislation and othermaterials, including full texts of over 100,000 cases and a million pages oflegislation.
Not only is there large-scale provision, there islarge-scale usage too. There are 200,000 hits or pages accessed per day.
Astonishingly, all this is achieved with only eightfull-time staff members and with a budget of £200,000. The key is automatedconversion of data. Software is written in-house which allows considerablepotential for integration and makes the provision of information by varioustools more seamless. There are over 22 million hypertext links automaticallyinserted into the databases using the ‘Usermark’ tool.
So central is the automation of the process to AustLII,that Graham Greenleaf said that their first rule was that if they cannotautomate to achieve an objective then it should be left to the commercialpublishers. They take the view that their automation innovations ‘lift thebar’ as to what is value-added – that increases the competitiveness of thelegal publishing industry as a whole and improves the products from all sourcesthat are available to the public.
Graham Greenleaf generously offered to make AustLII’ssoftware freely available to any UK institution which has a commitment to freeand non-profit access to law and the technical and institutional capacity tomake a success of it.
Public Policy Matters
Graham Greenleaf said that, since starting AustLII,their approach had been that public policy should aim to maximise access topublic legal information because this supports access to justice (a phrase whichechoes present concerns in the UK) and supports the rule of law. It alsosupports business efficiency by enabling businesses to access a wide spread oflegal information and sometimes to use it without the intervention of legalprofessionals – the existence of such a facility is even seen as a factor inthe attraction of foreign investment and increasing export earnings, because itcontributes to the creation of an attractive trading environment.
A great deal of the practicality of the AustLIIinitiative has flowed from the acceptance of the public policy arguments. Forexample, all Australian parliamentary counsel provide AustLII with consolidatedlegislation – there is government acceptance of a duty to provide this to thepublic and that duty is fulfilled by provision of material to AustLII. SimilarlyAustralian courts and tribunals ‘complete the job’ by providing AustLII withwritten decisions and even now provide a court-designated citation. The use ofparagraph numbering to provide the ultimate in vendor-neutral pinpoint citationis now being widely adopted by Australian courts.
Graham Greenleaf swept aside objections which haveloomed in the UK context. Alternative public provision was fine but did notdetract from the need for first-class co-ordinated access – an independentsource such as AustLII was a guarantee against a sudden reversion to a ‘userpays’ policy or the pretence of access when what is offered is a second-classservice without links or searching facilities. Copyright issues were treated asirrelevant: ‘the moral of our experience is that copyright issues should notbe allowed to be used as a distraction from providing free access – access issimply a policy issue’.
The Impact of AustLII
In terms of access, AustLII can claim a minimum of 1million pages accessed per week – the figures are really much higher than thatbecause many hits are on proxy servers. It costs less than one Australian centper page accessed and AustLII can now add a new database to the system foraround A$5,000 per annum.
Users come from across the whole community. Manymembers of the general public use the site, for example for research on familydisputes or tenancy matters but also for browsing and accessing a very widerange of legal information. Businesses are strong users and about 20% of usersare from the educational sector.
Wish List
Professor Greenleaf concluded with ‘a foreignlawyer’s wish list for access to UK and Irish law’. He would like to see oneindependent site for UK case law and legislation, ideally with materials fromthe Irish Republic included too. There should be high quality search andhypertext facilities that unite the collection and make it seamlessly navigable.He saw no reason why his wish could not come true:
‘multiple jurisdictions are no bar to doing somethingeffective … if AustLII can lend a hand with technical matters, it will beforthcoming … the funding requirements to establish an independent source arereasonably modest if it is set up in the right environment. For a site to have avery significant impact in the UK, I cannot imagine that its first year ofoperation would cost much more than £100,000. … The task of official bodiesis not all that hard. The main thing is to provide the data. That is all that isneeded from them. The main ingredients are goodwill, co-operation and a desireto maximise public access to the law. The rule of law and access to justicedeserve nothing less than that.’
Panel Discussion
The meeting concluded with a lengthy panel discussion,chaired by Richard Susskind. The panel consisted of Amanda Finlay, the Directorof Private and Public Rights at the Lord Chancellor’s Department, EdwardDonelan from the Attorney-General’s Office in Dublin, Professor Abdul Paliwalafrom the University of Warwick, Laurie West-Knights, Vice-Chair of SCL, andGraham Greenleaf himself.
There was spirited debate and numerous questions fromthe floor. Highlights to emerge from the exchanges included:
- the Government is looking beyond the needs of lawyers and academics to the legal information needs of the community but acknowledges that the providers of services to the community rely on up-to-date statutes and case law for the provision of their services
- there is an interesting European dimension which needs to be considered
- present resources for government posting of judgments on the Web are so scarce that only those cases of major public importance can be posted
- the Irish Government holds to a policy that government information should be free
- current access costs and limitations restrict academic research and tuition
- the posting of judgments has not given rise in Australia to an unmanageable leviathan of information – judges have had no problem with excessive citation of pointless decisions
- judicial leadership is crucial.
Perhaps the most important contribution, which clearlyechoed the mood of the meeting, was Laurie West-Knights’ call for a start tobe made: ‘Step 1 is to start to capture the data now, set up a UKLII, fund it(it would be minimal), and get on with it. Today.’
Afterglow
The meeting left me genuinely inspired and motivated.Graham Greenleaf’s presentation cannot be properly covered without the aid ofthe online demonstrations which punctuated his talk. It was truly impressive,even for those of us who have visited the AustLII site on occasion.
The two strong messages which I left with were that thecost of a UK equivalent to AustLII was capable of being met from private sources(I had previously assumed that it was beyond the means of any but government)and that it would be a long wait for government intervention. Curiously, thefact that such intervention was distant was a positive: it removed the need towait.
I left however with a real fear that the mood whichfilled that room might never be reactivated – that further discussion mightflounder and drown in a sea of technicalities. I am delighted to hear that thosefears seem unfounded and that great progress is now being made.
‘the moral of our experience is that copyright issuesshould not be allowed to be used as a distraction from providing free access –access is simply a policy issue’.
‘The task of official bodies is not all that hard.The main thing is to provide the data. That is all that is needed from them. Themain ingredients are goodwill, co-operation and a desire to maximise publicaccess to the law. The rule of law and access to justice deserve nothing lessthan that.’
If we see a new legal institute for UK and Ireland, itseems likely that its conception, or at least its first date with destiny, wasat Chatham House on 8 November.
A full transcript of the meeting, edited by GrahamGreenleaf and including links to pages on the AustLII site, can be accessed at www.scl.org/free-the-law.SCL and the other joint convenors of the meeting are grateful to Smith Bernal,who kindly agreed to create and provide that transcript entirely gratis.
