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JILT 1999 (3) - Tom McMahon


Contents

1.

Introduction

2.

AustLII: The Australasian Legal Information Institute

3.

A Portal to Global Legal Information: The World Law Index

4.

A Call for International Assistance

5.

The Importance of Law on the Internet for Developing Countries

6.

Beyond AustLII: Other Australian Innovations in Access to the Law

 

6.1

'Point in time' Legislative Searching & a Full Tax Database

6.2

Structured Court Decisions

6.3

Old Case Law on the Internet

6.4

'Notify me when', 'Synonyms' Searching, & Review of Unsuccessful Searches

6.5

'Expert' Systems

6.6

Public Legal Information, Plain Language & the Law, Free Answers to Public Questions about the Law

6.7

The First Law Reform Study of Technology & the Law

7.

Conclusion

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Access to the Law in the
Land of Oz

Tom McMahon
Counsel,
Information Law and Privacy Section
Justice Canada
tom.mcmahon@justice.gc.ca
 

1. Introduction

On July 22 and 23, 1999, the Australasian Legal Information Institute (AustLII) held its second 'Law via the Internet' Conference in Sydney, Australia. Tom McMahon, Past President of the Canadian Society for the Advancement of Legal Technology, member of the Department of Justice Canada's Access to the Law Committee, and author of a paper on the state of electronic access to the law in Canada in March 1999, was invited to present his paper at the conference. Justice Canada's Access to the Law Committee sent Tom to the conference. Here is Tom's report from the conference.
 

Would we be living in Oz if:

1. all of the statutes and regulations from all of Canada's jurisdictions were available on the Internet, for free, for everyone to access (and not just lawyers who can afford to pay for commercial legal databases such as eCarswell or Quicklaw)?

2. all of the courts and administrative tribunals in Canada published their decisions on the Internet for free?

3. all of the law reform commission reports, public legal education information, and contents of Canadian law journals were published on the Internet for free?

4. all of the above databases were available both on each institution's 'home' site AND on a single web site, where all of the documents had a consistent format, where you could search for key words across the entire range of databases, or where you could create your own combination of databases to search?

5. once you found a statutory provision you were looking for, the search engine would automatically link you to court decisions that have interpreted that section?

6. every time a judgement referred to a statutory provision, there was a link to the full-text of the provision in the statute?

7. whenever there is a change to Canada's statutes and regulations, the changes are updated overnight, and it is possible to read the exact text of the statute or regulation as it read on any given date (i.e.: find older versions of the statute)?

8. you could ask a Web site to automatically notify you when an amendment to a law you work with occurs, or when a court has interpreted a statutory provision that interests you, and automatically put a hot link in your email to the item?

9. government agencies made it possible for the public to check what benefits they are eligible for, and if courts made it possible for the public to complete their own court forms, by using software that translates complicated statutes and court rules into a series of simple questions that correspond to an individual's situation?

10. Canada offered to assist less developed countries in making their laws more available on the Internet (perhaps offering assistance to the countries in the francophonie, or to NAFTA countries in Latin America, as a gesture of inter-governmental aid and to promote the rule of law generally)?

All of the above is happening today in Oz - short for Australia.

2. AustLII: The Australasian Legal Information Institute

Visit AustLII to see what might well be the single best legal information site in the world - the Australasian Legal Information Institute. AustLII is operated jointly by the University of Technology, Sydney and the University of New South Wales. AustLII has a staff of 10, with a budget of approximately $500,000 per year (some of the staff are students on industrial experience and have a salary of approximately $30,000, and the University of Technology, Sydney provides office space and internet connections). When AustLII began in 1995, with a grant of $160,000, there were virtually no Australasian primary legal materials available for free on the Internet. Today, AustLII's Web site receives approximately 200,000 hits per working day. AustLII now has over 80 databases of statutes, regulations, court and tribunal decisions (more than 400,000 cases), law reform commission reports, and many other holdings, from all across Australia. AustLII is now expanding to include legal databases from New Zealand and countries in the South Pacific such as Vanuatu and Fiji. More databases from these and other South Pacific and Asian countries will be added in the future. AustLII adds a new database of primary legal materials once every two to three weeks. All of the databases can be searched at one time, or you can limit your search to any number of the databases you choose.

It should be noted that Canada has a number of important legal Web sites, perhaps the most important of which are the Virtual Canadian Law Library created by the LexUM group at the Université de Montréal. This site hosts the Supreme Court of Canada and Federal Court of Canada decisions, the federal Department of Justice Web site and thus, the federal statutes and regulations, among other legal information. The Access to Justice Network hosts a wide variety of other legal information, with perhaps the best library of public legal education and information materials in Canada. However, neither site comes close to holding as much primary legal information as AustLII on its own site (in large part because Australian governments and courts have been more willing to provide their databases to AustLII than has been the case in Canada), or with providing the same search functionality or development of new search software as the AustLII group has achieved.

In addition to its basic objective of providing access to the law for free via the Internet, AustLII is dedicated to technical research to improve means for finding law on the Internet. AustLII is an innovative developer of software for use in legal research. The AustLII site uses its own program for searching the databases (the name of the program is 'SINO,' which means 'Size Is No Object'). In addition, AustLII has written its own software that automatically inserts hyperlinks. Thus, where there is a court decision that refers to various statutory references, the software automatically links to the full text of the section of the statute that is cited in the court decision. There are over 20 million automatically inserted hypertext links in AustLII's one million pages, including links to statutory definitions, other sections and Acts, and cases. In addition, every section in an Act has a 'Noteup' button which causes an automatic search for cases, other legislation, or secondary materials that refer to that section.

3. A Portal to Global Legal Information: The World Law Index

AustLII is working with the Asian Development Bank on 'Project DIAL' (Development of the Internet for Asian Law) and is assisting Asian countries in making their laws available on the Internet for free. One part of Project DIAL is the creation of what is perhaps the best search engine for world-wide legal information. AustLII's World Law Index aims to be a major portal to global legal information.

AustLII has also developed software to seek out legal information Web sites and index the information held on law sites around the world. Graham Greenleaf, Co-director of AustLII, noted in his paper that existing Internet search engines are not very comprehensive - even the best ones only search 16% of Web sites, and the proportion of Web sites searched by any given search engine is diminishing as the number of Web sites escalates. When the search engines search their limited proportion of sites, they only search a small number of the pages on the sites they are searching. In addition to ineffective search engines, another tool that is used for Web searching is catalogs, where individuals select the better sites and classify them to make the better sites easier to find for the user. Again, catalogs are not even remotely comprehensive, are updated rarely, are difficult to maintain and do not provide much information about what is on each of the sites listed. Beyond search engine and catalog problems, Greenleaf's paper details a variety of other problems when searching for law on the Internet.

AustLII 's solution to these problems is to create catalogs specifically related to law sites, and then have a powerful search engine search those sites. By eliminating non-law sites from the searches, the quality of search results increases significantly. AustLII refers to this combination as a 'targeted' Web spider (the 'spider' seeks out the targets: law sites specified by the indexer for indexing) and the resulting search tool as a 'limited area search engine'. (An example of a 'limited area legal search engine' is Jurist which searches home pages of Law Professors. See Jurist Canada).

One of the problems with Internet law searches is that some sites do not permit search engines to enter their Web sites to index their information, because too much activity from search engines can create problems for server performance. AustLII is hopeful that major law sites will permit AustLII's targeted search on a request basis because it will not expose those law sites to indexing and searches from an unwieldy number of search engines.

In addition to targeted limited searches, the AustLII catalog contains 'embedded' or 'stored' searches. These are sophisticated search queries that have been prepared by experts in particular subject areas designed to extract the best information from the databases. Some examples can be found at the Intellectual Property site.

Embedded searches can significantly assist the user who might be unfamiliar with more sophisticated searching features (e.g.: how to construct good Boolean searches), or the user who does not know about or forgets about important synonyms for the topic being searched (e.g.: a search for 'confidential information' will not search for 'breach of confidence').

AustLII's indexers locate legal web sites around the world and determine which sites should be indexed by the web spider. AustLII has approximately 4,000 law sites indexed in the catalog at present. The various sites are divided into 'libraries'. There is a library for every country in the world (on their World»Countries page). There is a legislation library with legislation from more than 60 countries accessible directly from the World»Legislation page. Each link goes directly to the 'Legislation' sub-node of that country's page. Similar structures exist for the other libraries. Other libraries include Law Reform, Law Journals, International Agreements, Courts and Case Law, Indigenous Law, Industrial Law, and Privacy Law. There are individual 'law indexes' to find more detailed information about the laws in any particular country.

The search options are quite sophisticated. A search from the 'World' page will search all of the indexed pages. A search from the ' World»Law Reform' page will search all Web sites listed under Law Reform, and any pages which are sub-categories or cross-references from the Law Reform page. Alternatively, no matter where a person is in the catalog, it is possible to select 'all world law' to search everything that is indexed. In addition, there is a 'search this site' feature which permits the user, who has found a list of sites that respond to an initial query, to then search in-depth any one of the sites found. This function allows three important benefits:

(1) searching of Web sites that do not have search engines of their own,

(2) searching using the familiar AustLII search engine (SINO) rather than the perhaps unfamiliar search engines at different Web sites, and

(3) using the search features offered by AustLII's search engine that might not be available with other search engines, even where a site is using a search engine that is familiar to the user. In addition, all pages in World Law have a translate button that takes the user to Alta Vista's Systran page, which provides instant but crude translations of the information on the screen in a variety of languages.

4. A Call for International Assistance

The idea of a free, non-commercial portal to global legal information is one that deserves everyone's support. However, in order to make such a portal a truly effective and efficient search tool, the collaboration of partners from around the world, with skills in various languages and subject areas, is essential. Technical tools are not enough to ensure high quality Internet searching. Greenleaf explains in his paper:

The approach we are taking requires the development and maintenance of a world-wide catalog created by intellectual indexing effort, which at least catalogs significant national law sites in all countries world-wide and the major subject-oriented resources. ... wherever possible we will invite appropriate authorities from other countries, and other language and subject specialities, to participate in the cataloging process as 'indexing partners' for particular parts of the catalog.

There are a number of ways in which such partnerships can proceed, ranging from a partner periodically emailing lists of proposed URLs to be added to our pages to AustLII's indexers (who would add them to the relevant pages and send the Web spider); to our indexers checking a partner site regularly for any additional links which should be added to our pages; to a remotely located indexed being provided with password access to the editing interface to World Law such that they can add links and change sub-categories in 'their' parts of the index but not elsewhere. The editing interface of World Law is via the Web, so contributing editors can be located anywhere with Web access.

Where collaboration occurs, it will be acknowledged on those pages of the catalog where the collaboration is based, by inclusion under the 'Contributor' heading of the logo (or name) of the contributing organisation or person and a link to their Web site. For example, Australia's Department of Foreign Affairs and Trade contributes content to the creation of our ' Treaties and International Agreements' pages.

Some of the advantages of this approach for our indexing partners are that they will obtain additional users through referrals from the World Law pages, and if they wish they will also be able to place CGI search interfaces on their own pages which will search over the full texts indexed by our Web spider, but only the part of AustLII's index relevant to them.

We are now starting this process of creating partnerships, so it is too early to report on its success. Our first international partnership is being established between Ralph Amissah's Lex Mercatoriasite in Norway and World Law's International Trade pages. Other partnerships are being negotiated.

If this kind of collaboration between international subject area experts can be created, then there will truly be a great potential for maximizing the benefits of putting law on the Internet.

5. The Importance of Law on the Internet for Developing Countries

AustLII is also concerned about helping developing countries take advantage of Internet technology. Greenleaf wrote in his paper:

The availability of legal information on the World-Wide-Web is of considerable importance to developing countries, in Asia and elsewhere. Law libraries with reasonably comprehensive and up-to-date collections of legislation, case law and law reform reports, are virtually unknown in the developing world, and the costs of maintaining them are prohibitive. Access to large online commercial services such as Lexis is also prohibitive for most lawyers in developing countries. This is the principal reason that the Asian Development Bank has funded the development of Project DIAL (Development of the Internet for Asian Law) ...: to provide a means by which legislative and law reform personnel can obtain access to comparative legislative and law reform models. It is of equal importance for superior Courts in developing countries to have access to the decisions of similar Courts throughout the world. ...

Legal information on the Internet is also important to developing countries for a quite different reason: the provision via the Internet of comprehensive and up-to-date information about a country's laws and legal system can be a striking demonstration of the transparency of a country's legal system. This is likely to be of considerable importance to potential foreign investors, both in symbolic terms and in facilitating efficient and low cost legal advice necessary for investment decisions to be made.

It seems obvious that helping developing countries put their laws and court decisions on the Internet for free is an important way to not only assist with international trade, but also to assist various countries entrench the rule of law, reduce corruption, and promote democracy and human rights.

6. Beyond AustLII: Other Australian Innovations in Access to the Law

It is not just AustLII that is making Australia a world leader in providing access to legal information. Here are highlights from some of the other iniatives that are happening in Australia's efforts to provide their citizens with better access to their laws.

6.1 'Point in time' Legislative Searching and a Full Tax Database

The Tasmanian government uses software called 'EnAct' which is a legislative drafting, management and delivery system. One of its main features is that it allows users to search and browse the consolidated database as it existed at any time since February 1, 1997. These consolidations are generated automatically, without human intervention after the legislation is drafted (except to amend the draft of course). This dramatically reduces the cost of delivering this level of service. The importance of 'point in time' searching should not be underestimated, both for the application of the law in specific lawsuits and also as an essential tool for archiving electronic copies of the laws.

Another feature of EnAct is the method of creating amendment legislation. Rather than trying to construct the wording of the new consolidation and the amendment that achieves it simultaneously (the way drafters drafted in the past), EnAct splits this into two phases. In the first phase, drafters mark changes on a consolidation using strike-through and underline (they can view the new consolidation without these markings with the simple click of a button as well). When they are satisfied with the new consolidation, they save the set of changes.

These changes can be used in a number of different ways.

The first, and most important, is that they can be automatically turned into amendment legislation. This saves a great deal of work for drafters and provides for more consistent wording for similar amendment operations. Drafters can modify the generated wording in a number of ways, by grouping provisions in different ways, and even explicitly overriding the generated wording for each change.

This second phase of amendment drafting ensures that the drafters only concentrate on the wording describing changes once they have determined what those changes should be. In many cases they simply accept the system defaults, but they have complete control to override those defaults when necessary. The changes can also be applied to different consolidations to check whether the bill needs to be commenced in a particular time range, or to allow it to be modified to take account of different commencement times.

Once enacted, the changes can be automatically applied to the 'point-in-time' repository to update that repository.

This software was developed by the Multimedia Database Systems (MDS) Group at the Royal Melbourne Institute of Technology (RMIT).

The MDS Group also supports the Australian Taxation Office Web site, which has an extensive legal database, that includes the legislation, case summaries, case judgements, tax office rulings, and so on. The Canadian Government does not yet publish an electronic copy of its own Income Tax Act, let alone offer case summaries and judgements interpreting the Income Tax Act.

Compared to EnAct in Tasmania, SCALEplus offers a similar but cruder functionality. (SCALEplus is the legal information retrieval system owned by the Australian Attorney General's Department. SCALEplus has approximately 45 separate databases of legislative, regulatory, Parliamentary, judicial and tribunal information. Compare this to Canada where Parliamentary information is on one web site, federal legislation on another, the Supreme Court and Federal Court decisions on another, and tribunal decisions on various other sites.) As new consolidations of legislation are added, the 'old' copy is archived off into historical databases on SCALEplus. So a user can review the holdings and then select a piece of legislation at a particular time.

6.2 Structured Court Decisions

Judicial decisions in New South Wales are now published using a template that captures certain elements that appear in all court decisions (names of parties, judge, dates, etc.) onto a template so that some of the information can be stored in fields and searched by fields. This greatly enhances the ability to search and find relevant court decisions. The search options that are available include searching by party name, judge, legislation cited or key words. Users can specify the databases they want to search, can specify whether they want to search civil and criminal together, just criminal or just civil cases, and can instruct the search engine to return hits by order of:

(a) relevance;

(b) most recent cases first; or

(c) oldest cases first.

Users can also limit the searches to a particular year and to finding exact matches of the key words. The key to making these searches possible is the template that is used when the judgments are first written. Canadian courts do not use templates for their decisions.

For another example of 'field' or 'zone' searches, see the options offered by SCALEplus (which has Verity Inc.'s SEARCH'97 sitting behind it). SCALEplus has 'zoned' its documents since its inception in 1976, so, for example, searches of caselaw can be targeted at catchwords or headnotes to achieve more accurate and useful search results. See the wide variety of search options at the Advanced Search screen to see how it works.

Mark Burdack, Manager of Electronic Services at the New South Wales Attorney General's Department, explained in his paper to the conference why the templates and fields are important. He noted that it is likely that within 10 years, there will be approximately 30,000 decisions from various New South Wales Courts.

This growth in the number of published judgments raises legitimate questions about the long term utility of full text search mechanisms for people who use decisions as part of their work, and moreover for members of the community - as new to the law as they are to the technology of the Internet.

Field based searching, a precursor to metadata enabled searching, is one step to ensuring that more accurate and refined searching can be undertaken to enhance legal research within the courts and within the wider community. This will be further expanded over time by the development of standards within the courts to assist in refining field categories.

The Land and Environment Court has recently been working on the development of standards for the formatting of judgments and for completing judgment fields. For example, they have been working towards the development of a standard set of catchwords to define judgments using the keyword field. A standardised approach within the court to the categorisation of judgments according to a defined set of catchwords will ultimately aide the court and consumers in finding judgments of relevance to their needs.

The need for standards for court decisions is becoming widely accepted, in Australia and in Canada. For example, in Canada, we now have standards for applying paragraph numbering to court decisions (to avoid having to cite different page numbers, a practice that is not 'medium-neutral' - page numbers assume a paper-based medium) and standards for citing court decisions that do not rely on citations to law report series published on paper. (See the Neutral Citation for Case Law developed by the Canadian Citation Committee).

The next step for standards for court decisions, I would suggest, would be to follow the lead set by the New South Wales courts and have courts adopt templates that captures key information into fields. However, the challenge is to select the best assortment of fields. Court, party names, judge, and date are all obvious fields. Note that the Supreme Court of Canada already writes its judgments in a format that is essentially a template: facts (background); relevant legislative provisions; judgments below; issues; analysis; conclusion and disposition.

In my view, to get the maximum benefit out of field searching, it would be invaluable if the template ensured that separate fields existed to clearly state:

  • the cause of action;
     

  • the result; (plaintiff successful or unsuccessful, or successful in part; amount of damages awarded; conviction, acquittal or new trial ordered; evidence admitted or excluded; in appeal cases, the number of judges voting for and against the disposition) (one reason why these fields would be especially helpful is because it is frequently difficult even for lawyers to quickly discern the result of a case, let alone a lay person. The use of these fields would force judges to be clear about the result in the case, which would produce an immediate benefit unrelated to Internet searching);
     

  • the recitation of facts (hopefully this will make it easier to find and compare common fact situations);
     

  • the cases that were followed, distinguished or rejected in the decision; and
     

  • listing the main statutory provision(s) that was the subject of interpretation.

If courts were to move in these directions, undoubtedly there would be a need to develop standards for a common list of causes of action, and perhaps a common way to report results and to indicate how precedent court decisions were treated in a judgment.

6.3 Old Case Law on the Internet

An important issue with respect to law via the Internet is paying attention to older court decisions. In Australia, the High Court decisions are available to 1947, compared to Canada's Supreme Court decisions, which are only available to 1989 (at time of writing) and all Charter of Rights and Freedoms decisions (the Charter was adopted in 1982).

Australia is not simply focused on the law of its current courts, it is also working hard to bring historical cases to the Internet. Law Professor Bruce Kercher of Macquarie University is heading a project to find and report on cases decided before 1900 in New South Wales. There are very few formal law reports from those years. Professor Kercher is relying primarily on various newspaper accounts, and then preparing reports of those cases based on those sources. More than 600 cases have been reported due to this project since then. See the cases at Macquarie University and at AustLII. This work started with a large grant provided by the Australian Research Council in 1986 and has being going on continuously since then. Professor Kercher has applied for a new grant to carry this work on for another 15 years, 'but even if we do that, we will still be about a decade short of 1863 when something like adequate law reporting began in New South Wales. We will not have touched the period before 1824, when the social and political questions were just as compelling even if the legal authority was much weaker. ... In my most ambitious fantasies, I imagine similar projects in other jurisdictions' (including Canada).

6.4 'Notify me when', 'Synonyms' Searching, and Review of Unsuccessful Searches

One of the most popular features of SCALEplus and of AusInfo is the 'notify me when' system. (AusInfo is the agency that provides access to Commonwealth information, including legal information). Recall from above that SCALEplus has approximately 45 separate databases of legislative, regulatory, Parliamentary, judicial and tribunal information.

In the 'notify me when' system, users can send e-mails to the Web site and ask to be notified when new data that responds to the user's search query has been added. Each day, new data is added to the system, and the software runs the subscriber's search query against the new data. When a match is found, the subscriber is notified by e-mail. This process is entirely automated. In addition, both AusInfo and SCALEplus use a simple feedback mechanism that is unique (so far as I am aware). Whenever someone enters a search for an item at either site but the search engine says there are no documents that respond to the query, the people who run these systems automatically get an e-mail telling them about these failed searches. They study these searches to see if they can identify subjects that should be more clearly identified on the Web page (for example, in subject-matter listings). They also look to see if adding synonyms to key words on the site would produce better results. At AustLII, AusInfo and SCALEplus, the people who run the systems create these value-added searches by adding synonyms to frequently requested search terms so that the query will search not only the requested key word, but also its synonyms.

6.5 'Expert' Systems

Softlaw is an Australian software company that has developed a number of expert systems currently being used by Australian government agencies (expert systems are also sometimes called 'rule-bases'). Essentially, the software prompts users to answer various questions. The answer given to one question determines what the next question will be, and so on, until the software makes a determination of whether the person is eligible for a benefit or not. Of course, it is not the software that makes the determination, it is the law, whose provisions are translated by humans into a decision tree, and then the decision tree is turned into software. As explained by Surend Dayal, one of the principals of Softlaw, in his paper to the AustLII conference:

Electronic service delivery has a very limited scope, unless it can truly include deep transactions: those determinative processes that currently require detailed knowledge of policy or processes. ... For most members of the public, this represents a revolution in the way they interact with government. This approach to service delivery does not simply provide a client with convenience. ... It can provide the client with a range of services not previously possible ... testing of hypothetical scenarios, cross-portfolio packages of determinations, determination of optimal packages of services. Ultimately, the most important benefit is dignity: it provides a means whereby the client can control the process of seeking entitlements, within a comfortable and trusted environment and with well-founded assurance that the decision is unprejudiced and equitable. It is this change in the relationship between government and citizens that constitutes the real revolution that this style of service delivery offers.

By using expert system software, government can ensure that all applications are dealt with in the same way. Another major advantage of an expert system is that it is possible (and indeed, it is a very important part of the system) to provide text that explains every one of the various questions. In a traditional paper format, it is simply impossible to set out all of the explanatory information and all of the possible decision scenarios in one form, and even if you could, the sheer size of it would intimidate most people from even opening the tome. A third major advantage is that a rule-base can explain why it concluded that a person is or is not entitled to a benefit, because it can show the questions and answers where the determination was made. A fourth advantage of an expert system is that people can use the system to inquire about different scenarios, because the systems allow for 'what-if' scenarios. (Of course, expert systems cannot replace human judgement and discretion where those are provided for.)

The Australian Department of Veterans' Affairs (DVA) has been at the forefront of using 'expert' systems to determine and calculate veterans' benefits and to deliver services, and the Military Compensation and Rehabilitation Service has also been an early user of expert systems. These Departments first deployed expert systems to improve the quality of internal decision-making, and then realised that they could provide very high quality service to the public by providing access to these systems. The first examples of publicly available systems should appear in the next few weeks, but more are expected to follow quickly. The Department of Veterans' Affairs, in particular, is planning several additional systems of this type, covering the most common and troublesome aspects of their administration of disability pensions.

The Compensation Claims Processing System (CCPS) has been used by the Department of Veterans' Affairs since 1994. It has been extremely successful, leading to very large productivity increases and improvements in the quality of decision making. CCPS is based on the Veterans' Entitlements Act, and incorporates vast numbers of rules from a piece of delegated legislation under that Act, the Statements of Principle. The very detailed policy rules that lie behind the system are available over the Web at the DVA site. (This is also the site from which several examples of expert systems should be available in the near future.)

The Department of Veterans' Affairs has built on the success of CCPS, developing expert systems in a number of additional areas:

  • the 'Eligibility' module, which tests whether a veteran has appropriate service and satisfies the eligibility requirements for service pensions. This system has been in use throughout the Department for about 12 months. A recent Australian National Audit Office report recommended that its use be compulsory for staff, to ensure quality decisions. This module will be generally available to the community over the Web within a few months.
     

  • the 'Above General Rate' module, which has been used by staff for about 6 months, and which ensures correct decisions in a very complex area of law, covering the calculation of a particular loading on a veteran's pension rate. This is also planned to be available over the Web.
     

  • the 'Streaming' module, developed by DVA in conjunction with the Department of Defence, explicitly for use by veterans and their advisers. This module helps veterans to work out whether they should claim a pension for a particular injury from DVA or Defence or both. This will be publicly available in the near future.

Each of these modules is based on the Veterans' Entitlements Act 1986, and the last also covers the overlap between that Act and the Military Compensation Act 1994.

While these systems are not publicly available today, they are used by selected staff in ex-service organisations (servicemen's clubs and so on), and have been for some time. DVA is very keen on making the systems available for these primary contact points, who have staff that assist veterans in the preparation of claims.

SoftLaw has also built substantial systems for the Department of Defence (Military Compensation and Rehabilitation Service) and Comcare (which looks after workers' compensation for most Commonwealth employees). Both of these agencies administers workers' compensation schemes that are based on complicated legislation.

SoftLaw has built three separate modules for Defence, covering the three most complex questions in workers' compensation law: determination of liability to pay compensation for a particular injury, calculation of any weekly payments for loss of income, and calculation of lump sum payments for permanent impairment. In each case, the systems must cover multiple pieces of legislation, multiple versions of that legislation and very detailed administrative policy.

The major pieces of legislation covered are the Safety, Rehabilitation and Compensation Act 1988, the 1971 and 1930 fore-runners of that Act (completely different legislative schemes), and the Military Compensation Act, 1994. It is imperative that the system covers all versions of all these pieces of legislation, as the legislation that applies is often that in force at the time of the injury, which can be years or decades old.

The software deals with policies relating to superannuation entitlements under various superannuation schemes, as well as internal Departmental policy on workers' compensation issues. These systems are a good example of expert systems simplifying and making reliable an extremely complex web of various pieces of legislation, various versions applying at different times, transitional provisions and policy.

For Comcare, SoftLaw built a system dealing with determination of liability to pay compensation, incorporating a vast amount of very detailed policy on particular medical conditions. This is based on the Safety, Rehabilitation and Compensation Act 1988, and detailed administrative rules.

The MCRS and Comcare systems have been in place and used for 1-2 years. The systems have been a major success in both Defence and Comcare, leading to efficiency improvements and also to very large, audited improvements in the quality and consistency of decisions. The Military Compensation and Rehabilitation Service (Defence) is working towards provision of self-service facilities for clients to use this type of system, so that people can work out their own entitlements.

For a demonstration of a different expert system, see the Gateways to Justice Project at the Fund for the City of New York, which has demonstrations of potentially important expert systems that would give advice to the public for the following topics:

  • Have a court order an abuser to stop (the demonstration helps the user fill out the required court forms).
     

  • Plan how to get away from an abusive person.
     

  • Learn exactly whom the law protects.
     

  • I need a lawyer to help me.
     

  • Find out which courts help people in abuse cases.
     

  • Find out information about filing criminal charges against your abuser.

(There is another project on the site the explains to people what their options are when they face eviction from their apartments, and that helps them fill out the needed court forms if they plan to fight the eviction.)

Expert systems take the concept of 'access to the law' beyond access to the raw legal text by translating the text into a series of questions that make it possible for any member of the public to have direct access to the services, programs or benefits that the law was designed to provide. In my view, this is the best way to provide the public with genuine access to the law, although it will always be critically important to have access to the raw legal texts and court decisions that interpret them, and to the rules and coding that underlie the expert systems that are making decisions about a person's eligibility.

6.6 Public Legal Information, Plain Language and the Law, Free Answers to Public Questions about the Law

There is an innovative Australian site dedicated to providing legal information in plain language. Law4u is a commercial site and operates on a business model where information to the public is provided free of charge, and legal services (e.g. lawyers, conveyancing companies, trustee companies, mediation services, do-it-yourself companies, etc.) pay to be listed on the site. Could this be a new and improved model for public legal information?

AustLII itself has a Community Legal Information page that provides access to a wide variety of information written in plain language about the law, information which is contributed from various sources, such as the Legal Information Access Centre, a joint initiative of the Law Foundation of New South Wales and the New South Wales State Library. The AustLII Community Legal Education pages were started with a grant from the New South Wales Community Legal Centre's Secretariat. (It should be mentioned that Canada has done reasonably well in making community legal information available on the Internet through such projects as the Access to Justice Network and the School Net Law Room.

Another innovative site is 'Lawstuff' which is designed to give legal information to young persons. An important way to provide legal information is for government agencies to choose to hire people to answer questions from the public. (For example, the U.S. Environmental Protection Agency has two dozen librarians answering as many as 1,500 e-mail questions each month.) At Lawstuff, people are invited to submit their legal questions. The notice reads: 'The solicitors will try to reply to your message within 10 days, although a reply within that time is not guaranteed. Unfortunately, due to limited resources, assistance cannot be provided for school projects or research.' The users can choose whether the reply will be by e-mail, postal mail, telephone call or through a trusted person. The LawMail answers are provided by two solicitors employed at the National Children's and Youth Law Centre and by law graduate volunteers. The service can only provide basic advice, information and referrals. The LawMail service was started in October 1988 and there have been approximately 800 enquiries received (up to July 1999).

See also the Immigration Advice and Rights Centre which provides free advice on immigration questions. The Centre is funded by the State and Federal governments through the Community Legal Centre Funding Program, administered by the Legal Aid Commission of NSW. IARC currently receives some funding from the Department of Immigration and Multicultural Affairs through the Immigration Advice and Application Assistance Scheme (IAAAS). The Centre is also self funded to some extent through its training and publication activities. The Centre also accepts donations, which are tax deductible. The Centre's Web site is supported by funding from the Law Foundation of New South Wales.

Much of the information in this section of the paper was taken from the paper presented to the AustLII conference by Sue Scott, Director, Online Legal Access Project, Law Foundation of NSW. (See also the Best practice guidelines for legal web sites and the Law Foundation's Online Legal Access Project ).

Of course, the cause of plain language is also advanced when drafting organizations commit to using plain English style(s). Both the Commonwealth Office of Parliamentary Counsel (which drafts Acts) and the Office of Legislative Drafting (subordinate legislation) do so.

6.7 The First Law Reform Study of Technology and the Law

The Law Reform Committee of the Australian state of Victoria released its report on Technology and the Law at the end of May, 1999. It stated in a press release: 'The Inquiry is the first of its kind in the world and has examined world's best practices in a range of disciplines to formulate innovative solutions for the Victorian legal system.'

Among the recommendations were that the state government should provide ongoing funding support to AustLII as the primary resource for publishing Victorian legal information, that the Department of Justice should be mandated to provide the best possible IT systems for justice, including the courts, and especially to provide for electronic filing of documents.

The report also contained recommendations on artificial intelligence and the law, public access to legal information and advice and the need for a clearinghouse on technology and the law to keep abreast of best practice solutions around the world that would be applicable to the Australian justice system.

7. Conclusion

There were many other demonstrations and papers presented at the AustLII conference, but the above represent what I consider to be the best examples of technologies and approaches that are:

(1) available to the public

(2) for free

(3) currently in use in Australia and

(4) not available here in Canada.

The question is, why do Canadians have less access to their laws than Australians, and what should the Department of Justice (and other agencies) do about improving public access to the law for Canadians? What should these agencies do about contributing to the development of a free portal to global legal information, about contributing French content to the World law index, and about assisting developing countries in the Commonwealth, Francophonie and Latin America benefit from putting their laws on the Internet?

Can we expect governments to embrace expert systems to make statutes and administrative procedures more consistent and directly available to the public? Can we expect governments to produce legislation that can be searched at it exists at any point in time? Can we expect courts to produce their decisions in a format that uses 'fields' or 'zones' to improve searching? Can we expect to see older case law added to these databases? Can we expect to see a Canadian Legal Information Institute that ensures that all of Canada's legislation, court decisions, law reform reports and other publicly produced legal information can be searched at one time? Who is willing to take the leadership role in developing this Institute?


This is a Commentary published on 29 October 1999.

Citation: McMahon T, 'Access to the Law in the Land of Oz', Commentary 1999 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/99-3/mcmahon.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1999_3/mcmahon/>


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