Kirby, Michael --- "Free The Law - Beyond The "Dark Chaos"" [2000] UTSLawRw 2; (2000) 2 University of Technology Sydney Law Review 16

• The Elusive Goal — Accessible Law
• The Internet and AustLII Arrive
• Use of AustLII’S Facility
• AustLII and the Future
• Matters for Reflection

Free The Law – Beyond The “Dark Chaos”

An address delivered at the University of Technology, Sydney, to launch AustLII’s National Law Collection

The Hon. Justice Michael Kirby AC CMG

Justice of the High Court of Australia.
Governor of the International Council for Computer Communications.

The Elusive Goal — Accessible Law

Two hundred years ago in England, Jeremy Bentham was sounding off about the form and substance of English law. Although called to the Bar in 1767, he quickly abandoned legal practice, apparently in disgust. He devoted the rest of his life, and his formidable intellectual powers, to jurisprudence and to criticism of the complacency of the legal system on which he had turned his back^[1]. In John Stuart Mill’s phrase he became “the great questioner of all things established”. But like a modern law reformer, his criticisms were not merely negative. They were accompanied by detailed suggestions for reform and blueprints for the construction and administration of new institutions and systems by which the law could contribute to the great principle which he espoused the attainment of the greatest happiness of the people.

Bentham attacked the mighty work of Blackstone which had attempted to collect, in a few volumes, all the laws of England to that time. He was no lover of the common law, which Blackstone had placed on a pedestal. On the contrary, he described the common law as a grim place of “dark Chaos”^[2]. He advocated the codification of law and its enactment in statutes passed by an elected Parliament which would take the place of the step by step accretion of common law principle, developed by analogous reasoning by judges of infinite variety. For him, codes and statutory principles would “mark out the line of the subject’s conduct by visible directions instead of turning [the subject] loose into the wilds of perpetual conjecture”^[3]:

He had great powers of invective, often directed against “Judge and Co” (ie the Bench and the Bar), whom he saw as a “sinister interest” profiting from the operation at great cost to the public of an unnecessarily complex and chaotic legal system in which it was often impossible for a litigant to discover in advance his legal rights^[4] .

Ironically, Bentham’s writings^[5] had a larger impact on the codifiers collected by the Emperor Napoleon than they did against the resistance of the common lawyers and legislators of England. Codification became a major and lasting export of Napoleon’s empire. The civil law system, which took hold of France and the countries which France conquered in Europe and beyond the seas, remains to this day wedded to the idea that the law on any subject should be codified so that it will be accessible to the ordinary citizen. England and its mighty empire persisted with its curious mixture of common law, equity and statute law. It continued to put great trust in the judges to expound and develop the common law and equity to meet the needs of particular fact situations in precedents that could be used in the future by their contemporaries and successors to afford principles by which later disputes could be solved. The English system was, and is, resilient precisely because of its adaptability over time and space and its capacity to provide solutions to entirely new problems, which solutions seem mostly just to the judges, lawyers, jurors and citizens of succeeding generations. But it is a messy system. Finding the relevant case, and extracting from the judge’s discursive reasoning the principle that will bind or guide later judges to their decisions is a process in which there are many pitfalls. The greatest of these, until lately, has been that the cases were hidden in books, bound in velum or buckram in lawyers’ offices and a few libraries. Knowing where to go to find the law was a daunting challenge even for the experienced lawyer. For a member of the public it was virtually impossible.

Everyone was equal under the law and everyone was deemed to know the law and bound to obey it. But precious little was done to bring its content (or the ways of finding its content) to the notice of the ordinary individual. Thus did “Judge & Co” win the battle over Bentham in England. Their victory was exported to England’s colonies. Australia was, in this regard, no different from the rest.

The Internet and AustLII Arrive

Into this bleak and chaotic scene there has now emerged new hope for relief. Bentham, in his dismembered state in London, must be smiling at the prospect that his fundamental idea — free access to the law by the people — may yet be accomplished by the miracles of automated information technology. And yet, it is happening in Australia with the full cooperation of the judiciary, the governmental agencies, the Parliaments which make the statue laws and the legal profession which is itself a major user of AustLII’s national legal research infrastructure.

AustLII, the Australasian Legal Information Institute, is jointly operated by the Faculties of Law of the University of Technology, Sydney (UTS) and the University of New South Wales (UNSW). It draws its funds from many admirable sources, including the Australian Research Council, the Asian Development Bank, the Law Foundation of New South Wales, the Australian Business Chamber, the Council for Aboriginal Reconciliation, the Department of Foreign Affairs and Trade, and the host universities. It costs these funders about half a million dollars a year to ensure that AustLII can provide free access to Australian legal material to anyone who has access to the Internet.

The growth of the Internet and the prospect of cyberspace in the coming millennium is itself an astonishing story. Its world-wide expansion leaps ahead. It presents many advantages and not a few problems to lawyers and law-makers^[6]. But in the work of AustLII we in Australia have a wonderful service which hosts 80 full text data bases of Australian primary legal materials. AustLII’s National Law Collection, which I launch today, includes legislation of all nine major Australian jurisdictions. The Tas-manian legalisation data base (the last of the legislation data bases from all Australian States and Territories) will be added to AustLII next week. In addition, the decisions of the Supreme Courts of all States and Territories, the decisions of all Federal Courts and the decisions of the High Court of Australia back to 1947 are now within the service. The data base of the Supreme Court of Western Australia (the last Supreme Court data base to join the National Law Collection) will be added shortly. I am assured that special provision was made for particularly newsworthy cases such as that involving the former Mrs Rose Hancock, the decision in which was presumably in demand for the important legal principles it displayed.

In addition to the major court decisions, the reasons of a further 20 courts and tribunals throughout Australia are available. AustLII has provided access to the decisions of all courts and tribunals which have asked it to do so. The decisions of most courts and tribunals are available within hours of their being handed down. This is a fantastic service which is so different from the long delays that used to attend the distribution of printed versions of court opinions.

In addition to the basic National Law Collection, AustLII provides special collections including those dealing with:

• Treaties to which Australia is a party.
• Reports of the Australian Law Reform Commission.
• Indigenous law materials in the Reconciliation and Social Justice Library and much more.
• Every three weeks, on average, AustLII adds a new data base to its collection. It has been a leader by:
• devising its own standardised style or template for decisions;
• encouraging media neutral citation now common throughout the Australian court system;
• adopting common forms of court provided “keywords”; and
• inventing a search engine (SINO) which provides very fast retrieval and is specific to legal needs

AustLII ensures that the hidden crevices of statute and common law are at last opening up. This service costs the people of Australia, who use it, nothing. All they need is a connection to the Internet. An ever increasing proportion of Australian households now has that connection.

Not everybody will use the Internet to wade through the subtle nuances of the reasons of the High Court. To some, the Tasmanian Dams case^[7], Mabo^[8] and Wik^[9] are the last thing they would look for on the Internet. But the Rubicon of principle has been crossed. No longer are legal materials the captive of “Judge & Co”, hostage to a university training and privy to the lawyers who can afford the leather bound books. Now the law is where it should be. At the fingertips of the citizenry. At least in Australia, Jeremy Bentham’s dream is slowly but surely coming true. Law to the people is free and is accessible. And the people are beginning to respond.

Use of AustLII’S Facility

The significance of AustLII as a national research infrastructure is evidenced by the access statistics which are truly astonishing, even to me.

• There are now more than 200,000 hits on the AustLII data base every day.
• During 1998 there were more than 10 million hits in all for Australian legislation. There were 3.2 million hits on case law data bases usually for the text of the whole case.
• In 1999 access rates have continued, like use of the Internet itself, to escalate rapidly. There are now more than 1 million hits each week on the AustLII data bases.
• About 80% of AustLII usage comes from within Australia. About 20% comes from identifiable sources in the educational sector. About 55% come from the .com.au and .net.au subdomains which include important business sector users, notably lawyers.
• A survey reported on 7 May 1999 shows that AustLII is by a large margin Australia’s highest ranking law-related site. It ranks 83 out of all Australian websites. The next most popular site is Foundation Law, which is principally a gateway to AustLII. This is followed by Butterworths legal publishers, CCH publishers, the NSW Attorney-General’s Department Law Link; the Family Court, IP Australia, the Commonwealth Attorney-General’s Department and the Australian Industrial Relations Commission; Lawnet at Ozemail; ScalePlus and Osirus.
• But there is a huge and unquantifiable number of users at home, representing ordinary Australian citizens who are seizing advantage of the free access to Australian law which AustLII provides.
• The only government sites ranking higher in access usage than AustLII sites are ATO, ATSIC and the Department of Workplace Relations. The only education sites (.edu.au) ranking higher than AustLII are the home pages of the top five universities.
• At the end of 1998, AustLII had 46 case law data bases and more have now been added. It held nearly 100,000 cases available for retrieval, which is no mean number in a country the size of Australia.
• The biggest overseas users have been in the United States of America (3.4%), the United Kingdom (3.2%) and New Zealand (0.8%). But there are growing numbers of users based in Malaysia, Canada, Singapore, Germany, Hong Kong and elsewhere in the region.
• Interestingly for us who write them, the top 20 cases which were accessed in 1998 included the Maritime Union decision of the High Court; the Wik and Mabo cases; the Hindmarsh Island Bridge case; Garcia (a case of a wife guarantor); Qantas v Christie (a case of alleged discrimination against an air pilot retired on the ground of age); Green (a case of provocation and the so-called homosexual advance defence); and CES v Superclinics (a case which was settled but which concerned damages for so-called wrongful life after failure to diagnose a pregnancy). The list is not surprising. It shows discernment in the people’s choice. The people, in their magnificent variety, are rarely, if ever, wrong.

AustLII and the Future

Unsurprisingly, those who live with this dynamic technology and who are in charge of the developments of AustLII are not standing still. They are proposing and adopting further developments and enhancements of the system that will spread its utility even more widely. Some of these innovations will be announced during this conference. I will not steal the fire of those who will make the announcements. However, amongst the general advances for the future it can be anticipated that there will be these:

• Regional collections: I know from my former office as President of the Court of Appeal of Solomon Islands that one of the major problems of the common law nations of the Pacific is that of gaining access to legal material. Not only cases and other laws in Australia and New Zealand. Their own statutes and case law. So far none of the 14 Pacific Island States in our region that follow the common law have acquired access to a systematic legal information data base similar to that in AustLII. An important priority for AustLII is to work in the region, in cooperation with New Zealand, to develop accessible systems for both local and foreign law. This may sound unduly advanced and technological. But it is actually a much more economic way of delivering access to legal information. And if it is right that Australians (and New Zealanders) should have access to their laws, the same principle must apply to the citizens of Pacific Island states. It is simply a basic norm of democratic government. This is the kind of initiative in good governance which our Department of Foreign Affairs, the Asian Development Bank and other foreign aid funders would do well to support. Can there be rule of law and good governance without access to statue law and important court decisions?
• World-wide services: AustLII is also extending the World Law Service catalogue. Funding has been provided for development of access facilities by the Asian Development Bank. The Department of Foreign Affairs had provided funds for indexing of treaties world-wide. The project DIAL, funded by the Bank, provides legislation oriented parts of World Law of special use in the Asia/Pacific region. It involves AustLII in an international team to train lawyers across Asia in Internet legal research. Obviously, the emphasis of this facility is upon Asian legislation and case law.
• Multi-lingual: So far the Internet is dominated by users in the English language. So is AustLII. But most of the law of the world is written in languages other than English. The extension of access to foreign language law is a major challenge for bodies such as AustLII. Although the power of the English language will continue to expand, and be enhanced by the Internet, it would be a tragedy to omit from the facility Australian access to foreign language laws and the access of foreign users of Australian data bases to key international language translations which summarise some of our main legal developments. In due course software, already available in early forms, will be used to simplify translation of the gist, and ultimately the accurate content, of English language legal data bases. But thought needs to be given to foreign language law. Anglophones, perhaps especially in Australia, tend to be rather complacent about the dominance of the English language. Whilst the sun has set on the empire, a new empire of the English language continues to spread its pink hue over the Internet map of the world.

Matters for Reflection

Although the story which I have recounted, of AustLII, an Australasian adventure, is a most exciting and admirable one, there are many problems and I am sure these are fully recognised. They include:

• Absorbing the data: Making sure that users of AustLII do not make the mistake (which many photocopiers of books, articles and judgments may make) that gaining access, and even gaining a copy, somehow puts the information into the head and judgment of a human being. The data in AustLII is only as good as the brain cells of the people who use it. A printout and hard copy are meaningless unless the substance is digested, understood and analysed in a way that is useful and legally relevant. Nothing is worse, in a court of law, than suddenly being bombarded by a thousand undigested cases. A small proportion (if at all) may have relevance to the task in hand.
• Thinking conceptually: Thinking conceptually (indeed thinking reflectively at all) is still a great challenge to some lawyers. Bentham was not wrong. The danger of the common law methodology, from precedent to precedent, is that conceptual differences between the circumstances of cases are papered over by superficial similarity between the facts. AustLII will give the lawyer and the public ready access to court decisions. But this will be no substitute for proper legal analysis. Indeed, it may be dangerous for people to assume that everything said in a reported judgment represents the law. The judge cited may be in dissent as, alas, I often am myself. The passage cited may be inessential to the resolution of the case — so-called obiter dicta which do not bind later courts. The court in question may not have the authority to require that its decision be followed by those who come later. The decision may itself quickly be overtaken or even over-ruled on appeal. AustLII can help with some of these problems, especially the last. But access by the people to the law requires an understanding of how legal principles are derived from cases and then used in later cases to guide the decision-maker to a conclusion. Providing undigested legal material is not enough. It is essential that we provide citizens with the tools of thinking through problems, finding the applicable legal rules and deriving from legislation and case law any principle of law that must be obeyed. This may affect the way judges write their reasons and Parliaments express their statutes. It will be impotant to conduct surveys and audits to ascertain the extent to which AustLII is serving the needs of the general public beyond its obvious market for lawyers and law students.
• Teaching civics: From this problem comes another. It is an important article of faith for the coming celebrations of the centenary of federation that we must do more in the second century of the Constitution than in the first to teach Australians about their law and how it operates. The large number of school students who now take legal studies indicates the thirst for information of this kind. But with the decline of instruction in civics over the past 50 years, there has been a growing ignorance of the way Australia is governed and how its legal system works. Throwing onto the plate of people, with fundamental misapprehensions about their legal institutions, a huge mass of undigested legal data will not truly make the law free and more accessible. It is the duty of schools and universities to help the next generation of Australians, including the overwhelming majority who will not become lawyers, to appreciate the way in which law is written, may be found and is applied - at least in those matters which are of greatest concern to the ordinary person. Otherwise, AustLII’s data base will remain no more than an adjunct for the priestly caste of judges and lawyers. It will not truly bring law to the people. Bentham and his followers will have been outfoxed once again by Judge & Co.
• Up-to-dateness and comprehension: In the mass of legal material which must now be absorbed by the legal profession it is as well that (coinciding with this burden) AustLII’s data bases have arrived with the remarkable web spiders which permit efficient searches of the site to go quickly to statute and common law, to law reform reports, academic writing and other materials relevant to a particular inquiry. As courts impose upon lawyers heavier burdens of up-to-dateness and comprehensiveness, so that they are required to keep abreast of the law (and not to ride through life forever on their law school notes) it is just as well that AustLII is there. Any lawyer today who works with textbooks that may be two, three or more years out of date does so at a great professional peril. The most efficient way to guard against this is available at the lawyer’s fingertips with AustLII. Lawyers — even older lawyers — must learn to use the facility, if only out of self-protection.
• Selecting gospel: The final danger is a belief that everything that comes out of a machine is gospel. That because it is there in electronic form, it must be right. This is a large danger for automated information systems generally. Electronic legal systems are not immune from error. As citizens, and as judges and lawyers, we must keep our critical faculties vigilant. We should not take electronic script as holy writ. The law serves the people. It must adapt to the people’s needs. In times of enormous social change, it should not be assumed that old statutes and words in old judgments necessarily represent the law today, or if they do, that this must be accepted without challenge for reconsideration and reform. Maintaining a critical faculty is the privilege of the citizen in a democratic state. Just because the law comes out of AustLII does not mean that we should accept it forever. Take the ghastly convolutions in which Australia’s corporations law is written today. It may satisfy Bentham’s demand of a statue in the place of the chaos of the common law. But sometimes, one suspects, the chaos of the common law has been replaced by the chaos of the statue book. Simplicity and conceptualisation are strangers to that particular body of law. Yet it must govern a myriad decisions of ordinary people who cannot always have a lawyer armed with AustLII to guide their commercial judgments.

I congratulate the Australasian Legal Information Institute. I applaud the many advances the Institute has made in such a short time. They are remarkable, even astonishing. I praise the cooperation between UTS and UNSW. In a world of territorialism, AustLII represents a haven of sensible, beneficial cooperation. I welcome the spread of AustLII’s influence throughout our region, where Australia’s future lies. I praise the Australian judiciary and legal profession for the way in which they have adapted, with enthusiasm, to this new national service. I acknowledge the governments and courts and parliaments of Australia that have made their data readily available, through AustLII, free to the people. I encourage the extension of education in civics and legal studies that will help non-lawyer citizens to use these new facilities to the full. The law is ours. Ours, the citizens. AustLII helps to make that claim a reality.

I have much satisfaction in launching AustLII’s National Law Collection. May it serve well the people of Australia to whom the law belongs.

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[1] H L A Hart, biographical entry on Jeremy Bentham in A W B Simpson (ed)

Biographical Dictionary of the Common Law (1984) 44.

[2] Burns and Hart (eds), A Comment on the Commentaries and a Fragment of Government (1977) at 198.

[3] Burns and Hart ibid at 95. See also Schofield, “Jeremy Bentham: Legislator of the World” (1998) 51 Current Legal Problems 115 at 122. Gummow J is the source of these citations.

[4] Hart, above n 1, at 45.

[5] Especially A Fragment on Government (1776) and An Introduction to the Principles and Morals of Legislation (1789).

[6] M D Kirby, “Privacy in Cyberspace” [1998] UNSWLawJl 47; (1998) 21 UNSWLJ 323.

[7] Tasmania v The Commonwealth (1983) 158 CLR 1.

[8] Mabo v Queensland [No 2] (1992) 175 CLR 1.

[9] Wik Peoples v Queensland (1996) 187 CLR 1.