116.

COMPUTERS AND THE LAW

Opening address.to Seminar at Monash University by the

Attorney-General, Mr R.J. Ellicott, Q.C.

On 21 July 1969 Neil Armstrong stepped from

his landing craft on to the surface of the moon, after

a journey through space Of some 238,000 miles.

If there was any single event calculated to

bring home to us the marvels of the computer it was

this incredible journey of man through space - a journey

made possible only by the computer. From that moment

we became aware that we were living in an exciting new

world, where the impossible was attainable and the

incredible believable. ,

At this historic moment in mankind's progress,

it was appropriate that the Australian lawyer was also

beginning to turn his mind to the application of comÂ­

puters in his field. For it was just three days earlier

that the first paper on the Lawyer and the Computer was

being presented at the 15th Legal Convention of the Law

Council of Australia in Brisbane.

The paper was delivered by Mr K.S.Pope, the State

Manager for New South Wales' International Computers

Limited, himself a lawyer. Its purpose was stated to be

expository; it sought to provide information so that the

lawyer could assess the situation for himself. The theme

of the paper was, however, best set by the basic question

it put: "How much is the practising lawyer yet aware of ‘

the facilities which the computer can provide to assist

him within his own profession?".

If there were doubts in 1969 that the lawyer

would have to avail himself of the use of the technologyÂ·

that computers offered, and to grapple with the problems

that the computer created as its use became commonplace

in business and in Government, those doubts must surely

now have been dispelled.

Writing in the George Washington Law Review in

1966 on Retrieving Case Law by Computer, Irving Kayton

117.

described the legal research process in a way that gives

food for thought. He said:

"Following the law has been likened to trying  to drive an automobile while looking through  the rear view mirror. If the mirror is disÂ­ torted, progress forward is hampered by virtue

of imperfect knowledge of that which is going  on behind."

And he went on to illustrate the magnitude of

the problem, as follows:

"In Coke's day there were 5,000 printed cases.  At the time of Mansfield and Blackstone, 150  years later, there were only 10,000 reported  decisions. Today (that is, in 1966), however, .  there are over 2,300,000 reported cases and

the number of reported American decisions is  estimated to be increasing at the rate of  22,000 per month". ,

This enormous growth in the volume of legal

materials was picked up by Philip Slayton in his Report

prepared for the Department of Communications, Canada,

in 1974, as having dramatic consequences. These he

identified as:

. difficulty in finding all or even most of

materials relevant to a given legal problem

- the lawyer is thus practising without the

benefit of the learning necessary for the

pursuit of professional endeavour;

. inefficiency in legal decision making

processes, resulting in an increase in

appeals;

. increase in intellectual and geographical

insularity;

. Social consequences. Skilled lawyers are

-  engaged in routine mechanical retrieval.

The Cost and Complexity of adequate research

means inequality of access. Large law firms

become more powerful,  the smaller firms find

their existence in jeopardy. And the

.  Government may acquire a supremacy of legal

skill.

The enormous growth in legal material referred

to by the American writers from whom I have quoted is

reflected in Australia..  In 1975, the Commonwealth

Parliament passed 121 Acts and the Government made 226  Statutory Rules. The total number of statutes passed

118.

by all legislatures in Australia (including Territorial

Assemblies) in 1975 alone was 869 giving an average of

96.5 per legislature. In an address I gave last year

I said that it could confidently be predicted that the

total.would exceed 1,000 in 1976. That prediction was

fulfilled. And the Commonwealth Acts in 1976 numbered

209 and the Statutory Rules 305. To look at the matter

from another angle, the 1935 Reprint of Commonwealth

Acts totalled some 3,000 pages, the 1950. Reprint some

5,000 pages and the 1973 Reprint.nearly 12,000 pages.

If we lump together all Commonwealth and State statutes,

and regulations and add to these the rules prescribed

by the thousands of local government and other statutory

authorities throughout Australia for all years, we have

a veritable mountain of legislation. Reported cases in

Australia have not shown such a dramatic upturn, but

their cumulative effect is substantial. And there has,

of course, been a flood of legal literature.

The role that the computer can play in legal

research was succinctly put by William.  G . Harrington in.

the American Bar Association Journal of August 1974.

He said:

"Anyone who has run more than a few searches  on a full-text, interactive system has seen  it locate cases or other materials entirely  pertinent to his problem that were not sighted

in any index or digest ......................

"Doing research with computer assistance, the  lawyer is freed from the handicap of the inÂ­ herent limitations of all indexing. That is  to say, he is not compelled.to tailor his

thinking and his research to the logic and  the judgments of the indexer. He tailors his  search specifically to his own research problem,

and the computer follows his exact instructions  as it searches directly in the text of the  legal materials themselves .. .. Because the search covers more, it is more thorough. Because it is tailored precisely to each

research problem, it is more accurate". Â·

The use of computers in the law is a world^wide

trend. Because of the initial costs involved and the

high degree of technology required it. is not surprising

that the early moves have taken place in the United States.

119.

There the Justice Department has established a

legal information retrieval system for Government lawyers

(JURIS). A large commercial legal information retrieval

service (LRXIS) operates in a number of the American

States. But, of course, interest in computers as a servant

of. the law has been developing in many other countries.

In Canada a full-text system for case law, catering for

both English and French in the one data base, has been

developed by the University of Montreal (DATUM). There is

also a commercial system (QUIC/LAW) which is available to

both Government agencies and private enterprise in Canada.

And the Statutes of Canada have been recently reprinted

using computer photo type-setting. In Brazil the GovernÂ­

ment operates a legal information retrieval system, known

as (SIJUR), using I.B.M.'s STAIRS software, that embraces

legislation and case law of Brazil. .

The Commonwealth itself is making substantial

use of computers in the business of Government. I

instance the microfiche-based index of bankruptcy proceedÂ­

ings introduced into Bankruptcy Registries;  computerised

photo type-setting at the Government Printing Office for

printing legislation; computer based production of the

national bibliography by the National Library; processÂ­

ing of customs documentation of imports by the Bureau

of Customs; processing of Medibank claims on behalf of

the Health Insurance Commission; maintenance of records

and preparation of pension payments by the Department of

Social Security; periodic payments system for payment of

salaries and the like by the Department of the Treasury

and statistical processing by theAustralian Bureau of

Statistics. I need hardly add that the Australian TaxÂ­

ation Office also has found a use for the computer in its

extensive activities.

Within my own Department, staff have made sigÂ­

nificant progress in terms of setting-up an experimental

legal information.retrieval system, based on the use of

the STATUS system developed at Harwell by the United

Kingdom Atomic Energy Authority. Although the work to

date has only been experimental a sizeable data base has

been established Comprising the 1973 reprint of CommonÂ­

wealth Statutes (some 40 million characters of legal

120.

information). This work has involved co-operation with

the Government Printer, making use of by-product material

in machine-readable form from his computerized photo

type-setting system. The significant technical problems

involved in this process have been overcome during this

experimental work and have cleared the way for further

development.

.  My Department has been considering the setting

up of a legal information retrieval system along the

lines of the Interim System recommended by the Report

'  of the Committee on Computerisation of Legal Data. The

experimental work that has already been carried out has

proved the feasibility of the intended approach, and

provides a firm base on which such a system can be developed.

Initially, such a system would service the needs of my

Department and the office of Parliamentary Counsel, but

the aim would extend it as soon as possible to a number

of external users, subject to appropriate security and

financial arrangements being worked out. Subject to

budgetary requirements the actual development work on

this project should proceed at an early date.

And in the field of private enterprise in

Australia, you will all be aware that the banks, the

insurance companies and the airlines have been quick to

perceive and make use of the capacity of computerized

systems to increase their efficiency and to bring benefits

to their customers and clients.

Of course, the law not only faces the task of

adapting the computer to its own needs. It just as surely

has the task of protecting the individual from it.

Mr Justice Kirby, in his circulated paper on

Privacy and the Computer emphasises how the rapid develop-

' Ã¢ÂÂ   ment of the computer impinges on privacy. He points out

that, while files of information have been kept since the

earliest recorded history of man, the computing explosion

has added a new dimension. From about 60 computers in

the world in 1950 the number has exploded to some 100,000

at present.

.  As His Honour points out from the employment of 6

121 .

computers on a wide scale a .  small group of trained

experts will be able to obtain instant, inexpensive reÂ­

trieval of a great mass of co-ordinated, consolidated

information about each and every individual in society.

And he goes on to consider the means of protecting the

privacy to which'people should be entitled. The manner

in which, and the extent to which, this can be achieved

is something that will be of concern to Governments and

to lawyers in the immediate future. As you will be aware,

the subject -of privacy protection was the first matter

referred by my Government to the Australian Law Reform

Commission.

It is in all this context that I think the

convenors of this Conference are to be congratulated in

bringing forward for discussion by a widely representative

audience all the vital questions that computers throw

up for the law. And the presence of so many distinguished

participants who have agreed to give the Conference' the

benefit of their special knowledge in these areas, I have

no doubt, will ensure a most valuable and stimulating

discussion of the subjects to be dealt with.

A reading of the program itself illustrates how

extensive is the role that computers have, and must

increasingly have, in all aspects of the law. From the

general subject of the Impact of Computers on Democratic

Forms of Government (the first paper to be delivered by

Professor Weermantry) to the Need for Government initiative

in Computerising Legal Information and the.Preparation,

Promulgation and Retrieval of Statutes and other Legal

Material and the Use of Computers on the Drafting of

Statutes, the Conference will proceed to examine the

Protection of Intellectual Property, Data Bases and

Privacy and the Evidentiary Use of Computer - based

Information. The extent of the need for the legal proÂ­

fession to take stock of the value of computers to

lawyers is emphasised further by the every-day subjects

of Computers and Law Enforcement, Legal Office AdminisÂ­

tration and Auditing and Computer Systems, as well as

by the paper on the Impact of Technology on the Legal

Profession.

122.

Mr Chairman, I wish this Conference well for

what I am sure will prove to be a most valuable and -

dynamic examination of the issues posed by the Conference.

I am sure it will prove a milestone in the advancement

of the profession and will stimulate an awareness of

the enormous benefits that will be obtained by harnessÂ­

ing the resources that computers will make available to

Governments, academic institutions and private practitioners

alike. It will focus attention on some of the dangers,

particularly in relation to privacy, that the widespread

use of computers poses. There must be an awareness of

these dangers so that the convenience that computers

are providing for Governments and business does not

open the way to abuse or misuse of the information that

is so readily made available. -

Mr Chairman, may your deliberations prosper.

I am sure they will. Â·

Melbourne, 24 May 1977 .

29a/77

THE LEGAL AID COMMISSION BILL

The Attorney-General, Mr R.J. Ellicott, Q.C., is interÂ­

viewed by Geoff Duncan for P.M. ,  .

GEOFF DUNCAN: Mr Ellicott, why have you decided to introÂ­

duce this Bill now? .

ATTORNEY-GENERAL: Well this is part of the Government's

policy to introduce a comprehensive Legal Aid Scheme. That

scheme consists of State and Territory Commissions which

will deliver both Federal legal aid and what you might call

State legal aid. Those Commissions will be funded in

part by State Governments and in part by Federal GovernÂ­

ments pursuant to agreements between the Federal GovernÂ­

ment and the State.

GEOFF DUNCAN: But isn't that the problem, that there hasn't

been agreement from all the States on this?

