Legal information retrieval in Australia is made more difficult to understand because it seems to involve numerous mysterious participants: who (or what) you might ask are CLIRS, STATUS, SCALE, LEXIS and QLIRS? Minor participants make it even more confusing: ESTOPL, AUSINET, MAYNELAW and STAIRS are also names to grapple with, or at least to recognise.
Short of obtaining an injunction against acronyms, the only thing to do if you are confused already is to read on, because this chapter attempts to present a thumbnail sketch of legal information retrieval in Australia, and, in the process, to explain what some of these CUAs* stand for.
Despite its short history, the development of legal information retrieval services in Australia has been a complex process. Despite the efforts of some Governments to create one national service, it appears that, in future, Australian lawyers are going to obtain their legal information services from a range of providers, some of which will be linked to others. The end result is likely to be a complex interlocking network, and the best way to understand it is to appreciate its history.
The development of legal information retrieval has been a world-wide process from the late 1950s. Its national and international history is comprehensively surveyed in Jon Bing 's Handbook of Legal Information Retrieval (North Holland, 1984).
The Ohio Bar Association established the earliest commercial system, OBAR, in 1969. The system was bought and redesigned by Mead Data Central, Inc and released commercially as LEXIS in 1973, operating from a computer situated in Dayton, Ohio. LEXIS stored legal materials in full text from the start. This was a remarkable departure from computerised retrieval systems which had previously been designed for use by engineers, doctors and scientists, and which had only included bibliographical materials and abstracts (see Bing, 1984 pp 484-97).
The inclusion of the full or `authentic' texts of lengthy documents in computerised information retrieval systems has been the hallmark of legal information retrieval, and is probably the only area of computing where lawyers have played a significant part.
WESTLAW was launched in 1976 by West Publishing Co, the largest American legal publisher. It initially only included headnotes with references to the many law reports published by West, but soon changed to full text to compete with LEXIS.
STATUS was first used to any significant extent in Norway and Holland, but was not put into commercial use in the United Kingdom until 1979, when the EUROLEX retrieval system was launched (Bing, 1984, 456-7). EUROLEX had a short and unhappy history before its demise in 1985, which is discussed below.
In 1977 plans to establish the interim system were approved. Lewis Pape, an academic from the Australian National University, returned from the United Kingdom with a copy of the STATUS software and interested the Attorney General's Department in its use. The Department, in consultation with the Advisory Committee, decided to use STATUS as its retrieval system, partly because of its `portability' between different computers.
Other early research included a 1977 project by IBM, the NSW Law Foundation and J Levine of the University of NSW Law Faculty to establish a database of trade practices law (TPAC) using IBM's STAIRS retrieval system, but this did not result in any continuing database. Also at UNSW, A Richardson and D Lewis created a teaching database of torts cases involving animals, with a simple retrieval system written for the purpose (CARL). CARL was used for teaching retrieval techniques at UNSW from 1982-1986, before any commercial systems were operating in Australia.
The STATUS `Standard'
In 1981 the Standing Committee of Attorneys-General (SCAG) announced that all the Attorneys throughout the respective States of Australia, had agreed that they would only permit statutes and cases from their jurisdictions to be included in systems which conformed with the database design and user interface of the STATUS software.
This was an attempt to avoid Australian lawyers having to learn a variety of different search languages in order to be able to search law Australia-wide, a problem usually referred to as `the rail gauge problem` in deference to another era of communications. SCAG has since released a set of standards for legal information retrieval in Australia, discussed below.
Contracts were signed between CLIRS and the NSW and Victorian Governments in December 1983, giving CLIRS the exclusive right to disseminate legislation and caselaw from those States in computerised form for a number of years, subject to a right of renewal. The CLIRS `monopolies' are discussed below.
LEXIS therefore was, and is, `locked out' of Australian primary legal materials, at least for a number of years until the CLIRS `monopolies' expire.
CLIRS launched a `pilot scheme' with a small number of databases in 1984, and was launched commercially in mid-1985.
Instead, the approved operators of State systems (of which CLIRS is the only example as yet) would be given the exclusive right to have their subscribers `switched through' or `networked' from the CLIRS computer to the SCALE system itself. CLIRS and SCALE share the profits (if any) from such searches. This arrangement was to be reviewed in three years (Senate Hansard, 15 September, 1983).
The Commonwealth Government claims the exclusive right to reproduce Commonwealth legislation and cases decided in Commonwealth courts in computerised form. The SCAG principles stated that the Commonwealth was opposed to the storage of Commonwealth Crown copyright information in any database other than SCALE. The Commonwealth has not licensed any other operators to create such databases. It has, however, permitted CLIRS to include Commonwealth cases in the specialised series of law reports included on CLIRS.
The SCAG principles also stated that SCALE was not to be made accessible by any system which itself did not comply with the principles, that is, it must be STATUS based, provide wide means of dissemination via non-dedicated terminals together with a host of other requirements. This is why the proposed Queensland system (QLIRS) was obliged to use STATUS as the retrieval software in order to gain gateway access to SCALE for Queensland users.
CLIRS' exclusive access to SCALE expired in 1986, but the network arrangement has continued on a non-exclusive basis. The Federal Government could provide direct access to SCALE to other operators of retrieval systems, subject to the constraints of the SCAG standards discussed below. The LINK network, discussed later in this chapter, has obtained obtain network access to SCALE, presumably on the basis that it is not primarily providing a retrieval system (STATUS or otherwise), but merely a network.
Some aspects of its operation leave it open to criticism. No new SCALE databases of Commonwealth or ACT law have appeared for some years now. There is no family law database despite considerable demand, but CLIRS or other operators cannot create their own database (see Computing Australia, 1 Feb 1988). Nor have page numbers to the Commonwealth Law Reports or Federal Law Reports been inserted in the HIGHCT and FEDDEC databases, therefore reducing their utility.
Details of the operation of SCALE are contained in Part B, and details of its databases in Part D.
The system to be established for NSW and Victoria was called CLIRS, for `computerised legal information retrieval system', and was to be operated by CLIRS (NSW) Pty Ltd and CLIRS (Vic) Pty Ltd, subsidiaries of Computer Power. In a series of complex legal moves, a holding company was established, CLIRS Australia Pty Ltd, which operated the service within Australia on behalf of the licensee companies. In 1984 one co-founder of Computer Power sold his one third share jointly to the other co-founder, Roger Allen, and News Limited.
CLIRS Australia Pty Ltd was floated as a public company, CLIRS Ltd, in 1986, with Computer Power Group Holdings Pty Ltd and its subsidiaries retaining 50.01% of shares (CLIRS Limited Prospectus, 1985, p1). The float was both an attempt to raise capital for the operation of the service and for Computer Power to have a listed entity as a subsidiary. In 1987 CLIRS Ltd announced its intention to purchase its largest shareholder and parent, Computer Power Group Pty Ltd, as it had then become known. CLIRS Ltd later changed its name to Computer Power Group Ltd, the CLIRS database operation becoming a division of the Computer Power Group (CPG). This was, in effect, a `back-door float' of the Computer Power Group.
In 1987 the then Managing Director of the CLIRS database, A Gould, left Computer Power Group Ltd to join a new company, Infolink Pty Ltd, which company was jointly funded by the NSW Investment Corporation (owned by the NSW Government) and a West Australian entrepreneur. It was intended that the new company would purchase the CLIRS database operation from the Computer Power Group.
However, the proposed sale did not eventuate, although it did result in litigation between the Computer Power Group and Infolink which was subsequently settled. Instead, the CLIRS operation is now jointly managed by Computer Power Group and Westpac, Australia's largest private bank. Westpac had been looking for some time for a suitable vehicle by which to enter information retailing.
The net effect is that CLIRS is now `under new management'. The disruptive events of 1987, during which the staff of CLIRS was reduced considerably, and uncertainties concerning ownership impeded planning, contributed toward some of the CLIRS databases becoming out of date, as detailed in the Database Directory. No doubt this will now be remedied.
Australia is the only country known to claim that the output of Courts and Parliament alike is Crown copyright material. This view enabled State and Federal Governments to agree to restrict the right of individuals to store and reproduce electronically caselaw and legislation. Whilst this action was the source of great controversy during late 1982 and 1983 in the legal profession, no legal action was taken by any of the other interested parties to test the validity of the Governments' view.
The Agreement between CLIRS and the New South Wales Government is illustrative of the relationships between CLIRS and the States, although the Agreements vary somewhat between States.
The NSW materials covered by the agreement are defined as including all reported Supreme Court judgments since 1901, all judgments of precedent value of the Court of Appeal since the Agreement, and all current NSW public Acts and statutory instruments. In addition, the NSW materials to be covered may include any `legal records' of the Supreme Court or any Government Department, if the NSW Attorney-General and the operator agree. It is obligatory for the operator to include all such material in the system in full-text, and not merely as abstracts.
Other obligations on the operator include a requirement to provide headnotes and/or catchwords for all cases if not otherwise available, a requirement to include in any caselaw database all citations to a case when it is reported in any recognised series of law reports, and, when so required by the Attorney-General, to include references to all other cases in any recognised series of law reports which refer to a case included in the database.
In return, the operator was provided with exclusivity, an undertaking
that the NSW Government will not authorise anyone else to store this information
electronically and operate an information retrieval system. The government
will take such legal action as is available to it against any person breaching
this exclusivity. However, the government may set up some limited internal
database of such information if desired provided that it does not compete
with the operator.
The operator was also granted exclusivity for a period of four years from the completion of the acceptance tests of the system. In NSW this occurred in June 1985 and therefore the first term of exclusivity terminates mid-1989.
An extension of exclusivity for a further four years is available on application by the operator, subject to the operator's satisfactory compliance with the Agreement during the initial term. The NSW Advisory Council will advise the Attorney-General on such compliance. If renewed, the NSW CLIRS monopoly will run until 1993.
If the data loading schedule required by the Agreement is not met this could result in the termination, or non-renewal, of the agreement for breach if any government was so minded.
There is an interesting twist to the Western Australia situation. As the Council of law reporting in WA does not own the copyright in the catchwords, headnotes or form of the authorised reports (WAR), unlike the position in other States, the government cannot license their inclusion in a database. It would therefore be necessary for CLIRS to seek an agreement with the publishers in order to be able to reproduce these on-line. CLIRS only currently provides access to the WARs from 1982, since the Law Book Company took over publication from Butterworths, to date. The equivalent NSW and Victorian databases go back to the 1950s.
CLIRS intended that QLIRS would simply become a set of Queensland databases on CLIRS, but this has not yet occurred. The Queensland Government and CLIRS have differences over the terms of the agreement between QLIRS and the government which CLIRS may have `inherited'.
Furthermore, the monopoly which CLIRS enjoys over computerised dissemination of this information may be of limited duration. It's exclusivity of access to SCALE has expired, and exclusivity was not available in Western Australia. In the other States its initial term of exclusivity will expire in 1989 or 1990, but may be extended to 1993 or 1994 respectively. After that, it would be up to the governments of the day to decide whether to offer further exclusivity, or to allow other operators to enter the field. This cannot be predicted.
|Commonwealth||HC, FC & AAT||Y||Y||Y (SCALE)|
|New South Wales||Y||Y||Y||Y (1989/1993)|
|South Australia||Y||Y (1986 on)||N||Y (1990/1994)|
None of the Advisory Councils present any Annual Report to Parliament or advise the public of the progress of the service. What part they play in ensuring the proper conduct of the monopoly is not public knowledge.
Their relations with CLIRS differ. In NSW CLIRS attends all full meetings of the Advisory Council whereas Victoria usually received a report from CLIRS to be debated in its absence. In South Australia some proceedings are conducted in camera.
As a means of ensuring the proper conduct of a monopoly over an important source of public information, the Advisory Councils appear to do little. It is unknown whether they are even intended to have that role.
The SCAG Standards set out `mandatory features which must be complied with by all Operators participating in the National System'. The mandatory Standards cover telecommunications standards, `User Enquiry Facilities' (ie features of the search language), and standards for both legislative and case-law databases.
The standards for User Enquiry Facilities do not require that the STATUS retrieval software be used, merely that the software used `should conform to ... the then current STATUS User Manual' in respect of those facilities available in SELECT mode (ie user search mode) of STATUS which SCAG regards as mandatory.
A `four-level data base structure' of Chapter, Article, Paragraph and Word is mandatory, and articles are also required to be `divided' into Named Sections. The exact relationship between these requirements and the concordance is not specified.
All STATUS commands are mandatory except SCAN and NOTSCAN, the stored macro facility (implemented on SCALE but not on CLIRS), the stored question facility (implemented differently on SCALE and CLIRS), the SYNONYM facility (not implemented effectively on either), and some types of printing commands. Even the abbreviations to be used for commands are specified. Some `permitted variations in enquiry facilities' are also specified, including the Menu (M) and GUIDE commands, and the use of question marks with the Q and SQ commands.
The standards for legislative data bases commence by requiring separate databases for each legislative series, and for subordinate legislation separate from primary legislation. This is said to be `in order to optimise searching times'. However, unless additional aggregated databases will be approved as variations, this requirement institutionalises one of the weakest features of the current Australian systems -- the need to repeat the same search over different databases in order to be comprehensive. Nor do the Standards require legislative databases to be consolidated, except where this is `possible'. SCALE databases are not consolidated. There are then detailed specifications for permitted Named Sections and their contents.
The standards for case report databases do not prohibit multi-jurisdictional or multi-report databases, except to say that they should have a `clearly defined scope'. Full text of cases is only required `where practicable'. A detailed structure and contents for Named Sections is specified. A standard for case citations without full stops is included. However, there is no standard for the citation of sections of Acts and Regulations, a matter on which CLIRS and SCALE follow different practices, which causes difficulties to anyone using both services.
However, even if the question of the desirability of a STATUS-based standard is put to one side, there are aspects of the SCAG Standards that are questionable.
The omission of any requirement for consolidated legislative databases or any standard for references to sections in caselaw databases are two potential standards of benefit to users with which SCALE would not be able to comply without considerable expense. These omissions create the impression that these are not so much `standards' arrived at on purely objective criteria, but also contain some elements of special consideration for existing operators. Whether such consideration will be extended to `new players' who have difficulty conforming to some other aspect of the standards remains to be seen.
The possibility that these standards could be used to inhibit the adoption of new technological advances in search techniques raises more questions. Even if it is correct that STATUS is just as good (or bad) as any of the other existing commercial retrieval systems, it would be most unfortunate if existing operators were able to prevent any radical new techniques being applied to Australian primary materials merely because of their substantial investment in STATUS-based systems.
The SCAG Standards are ambiguous as to whether `optional feature' only refers to variations of standard STATUS commands, or would extend to include quite different `features' such as an alternative menu-based interface. It would be ridiculous if such a `feature' became `approved' and then no other Operator was permitted to develop a better menu-based interface. The Standards could only sensibly be intended to control the consistent use of STATUS commands.
These elements of mandatory mediocrity make the SCAG Standards of dubious value.
The early release of the CLIRS service to lawyers in NSW and Victoria when there was limited material available on the service contributed to give lawyers the impression that it was of little utility. The profession have been very slow to embrace the service, particularly in Victoria where CLIRS has reported that market penetration has been significantly below expectations.
The problems of market penetration appear to be reflected in CLIRS' financial position. The operation of CLIRS contributed a loss of over $2M to CPG's results to September 1987 (Computer Power Group Annual Report 1987 pp 12,14).
It would be premature to make any overall assessment of CLIRS as a success or failure, either operationally or financially. It has only been operating for four years. It is still building its `core' databases. It has recently obtained a major new financial backer.
Other systems, gateways and registries
CLIRS and SCALE are no longer the only operators of computerised legal information systems of relevance to Australian lawyers. The other systems are discussed in detail in Part C, and the history of their development will merely be sketched in this chapter.
The real interest of LEXIS is that it is now the only computerised source of United Kingdom legal materials, the caselaw of which is of great relevance to a common law country such as Australia. The vast array of United Kingdom cases available on LEXIS are set out in the Database Directory.
However, an unexpected Australian connection emerged when CLIRS obtained an injunction against Butterworth Telepublishing discontinuing the EUROLEX service, on the basis that it had a contractual arrangement with EUROLEX to allow CLIRS subscribers access to EUROLEX. The dispute between CLIRS and LEXIS was settled in 1986 with the announcement that CLIRS subscribers would now be able to obtain access to LEXIS via a gateway from CLIRS. This gateway commenced in 1987.
The EUROLEX link would have meant that CLIRS users would have been able to use STATUS, to retrieve English materials. The LEXIS link will provide access to the far wider range of English materials that LEXIS offers, but at the cost of having to learn the use of two somewhat different retrieval systems, STATUS and LEXIS. Opinions differ on whether being able to use LEXIS rather than STATUS is an advantage or a disadvantage.
LEXIS is discussed in Chapter 25.
Two minor systems, AUSTRALIS and OZLINE, also use the STAIRS retrieval system and host a few bibliographic databases of interest to lawyers. All three systems are discussed in Chapter 26.
Canada's QL system, accessible via CLIRS, contains some English caselaw, but not on the same extensive scale as LEXIS.
These registries, and the means of access to them, are discussed in detail in Chapter 28.
CLIRS provides gateways to SCALE, LEXIS, QL, the NSW Land Titles Office ALTS system, and a variety of other overseas systems.
Perhaps more importantly it will offer a range of gateways to Victorian government registries, including the land titles, corporate affairs and Court registries mentioned above. LINK intends to offer similar co-operative arrangements to the other State Law Societies, in the hope of developing a national gateway system operated by and for the legal profession. If it succeeds, and there are few reasons why it should not, it will be the most significant development in computerised legal information in Australia since the launch of CLIRS.
|Operator||Software||Gateways to....||Gateways from...|
|CLIRS||STATUS||SCALE, LEXIS, QL, NSW ALTS etc||LINK, SCALE, ABN|
|Viatel||Videotext||Vic Motor Securities||--|
|LINK||--||CLIRS, SCALE, AUSINET, ESTOPL||--|
|Vic CAC, Vic LTO, Vic Courts|