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Tulkinghorn
11 May, 2007  
The profession's free ride on AustLII

AustLII has hit a $400,000 brick wall as the government slashes funding to the online information provider. It’s a radical thought, but maybe the lawyers might have to pitch-in


imageThe lawyering business is based upon lawyers restricting access to justice unless they are paid.

In 2002 US law professor Thomas D. Morgan wrote:

“However lawyers might like to claim the core value of furthering access to the legal system … their basis for doing so is questionable.”

If lawyers did want to promote access to justice, then they would support anything that helped people to find out what the law is, even if that empowered people to bypass lawyers.

They might even want to financially support AustLII (the Australasian Legal Information Institute) which is the world’s best free (to consumers) internet legal information provider. It is the only place citizens can go to find real, up-to-date, Australian law, without having to pay for the “privilege”.

AustLII’s entire budget is less than $1.5 million a year, but it has hit a $400,000 brick wall. The Australian Research Council has cut its contribution from around $420,000 a year to $20,000.

The fact that AustLII exists helps prevent Alice in Wonderland situations.

“At this moment the King, who had been for some time busily writing in his note-book, called out ‘Silence!’ and read out from his book, ‘Rule Forty-Two. All Persons More Than A Mile High To Leave The Court’. Everybody looked at Alice… ‘Well, I shan’t go, at any rate’, said Alice; ‘besides, that’s not a regular rule: you invented it just now’. ‘It’s the oldest rule in the book,’ said the King. ‘Then it ought to be Number One’, said Alice. The King turned pale, and shut his note-book hastily.”

The government can’t find $400,000 to fund the dissemination of genuine and useful information, but it can find $25 million to fund disinformation.

imageIn 2005 the Lowy Institute conducted a public opinion survey on Australian attitudes to international affairs. It discovered that while 97 percent of Australians felt affection for New Zealand and 84 percent for Japan, only 58 percent had affection for the United States. According to Professor Robert Manne of La Trobe University:

”[O]ne of those alarmed at these results was Rupert Murdoch. Rather than blame the unpopularity of America on the uber-hawkish policies no one had supported more enthusiastically and effectively than he, and perhaps forgetting momentarily that he owned 70 percent of the Australian daily press, Murdoch blamed the supposedly left-wing bias of the Australian media for this unsatisfactory situation. To combat their influence he proposed to help fund, at an Australian university, a United States Study Centre. The proposal was led by the elite lobby group, the American Australian Association. It had the warm support of the Howard Government, which in May 2006 pledged an initial grant of $25 million.”

Obviously this USSC vehicle is not going to drive on the left. It is going to charge down on the right, whatever the signs may say.

If the government remains recalcitrant, it’s not unreasonable to ask lawyers to foot all of the shortfall, since they are by far the biggest users of AustLII, and because they are forever deluging the public with statements about how much they want to promote access to justice.

The NSW Law Society alone (the NSW solicitor’s union) took in $143 million in the 2005-2006 year, leaving a surplus of almost $18 million. There are about 20,600 practising solicitors in NSW, so that is around $900 surplus each, and then what about the barristers?

Actually, all AustLII needs to secure its funding is $20 per head per Australian lawyer. AustLII says:

“Australia’s legal profession probably comprises the largest single group of AustLII users. In March 2007, four ISPs servicing only members of the bar accounted for over 200,000 hits on AustLII. Large law firm users of AustLII each accounted for over 30,000 hits per month, about the same as a medium-size university… The overall picture is one of substantial use by all branches of the legal profession.”

The AustLII website advises:

“The NSW Law Society has refused to provide any funding assistance to AustLII, at least until 2008-9… [Its members are] almost certainly the largest group of AustLII users within the legal profession, because 36 percent of AustLII’s usage comes from New South Wales users. This is the largest ‘black hole’ in AustLII’s funding.”

And the NSW Bar Association …

“has declined to provide any funding assistance to AustLII, stating that the council does not believe it appropriate to provide the assistance you have sought (April 24, 2007).”

imageThe bulk of the legal profession has been taking a free ride on the taxpayer for far too long, with the NSW Law Society’s members leading the pack. The non-paying lawyers can’t leave it all up to the likes of Julian Burnside QC (pic), one of the relatively few individuals who contribute. Burnside is carrying 50 non-paying lawyers at the rate of $20 a head.

AustLII’s current funding from the profession is $85,500 per year. In addition, the Melbourne-based liability insurer, the Legal Practitioners’ Liability Committee has agreed (May 5) to provide $50,000 for 2007.

About seven or so new stakeholders from the profession came in on Wednesday (May 9).

In April this year the Victorian Bar Association agreed to cough up $7,500, which means that the profession is now contributing around $150,000, while extracting many times that amount in terms of its share of usage (“hits”).

imageThe profession also owes for past usage, so to speak. Professor Graham Greenleaf (pic), the co-founder of AustLII, noted in 2001 that:

“Even though the Australian legal profession probably accounts for our largest single source of usage, they have never provided us with any funding (except in the past via the NSW Law Foundation, though it is not really the legal profession).”

So from 1995 to at least 2001 the lawyers were contributing nothing at all.

It seems that the NSW Law Society is quick to institute “user pays” in its own affairs when it realises it is giving the public something for free.

From about March 2000 until around July 2002 the society used to make available on the internet (for free) nearly all the content of its monthly Law Society Journals. They were a treasure trove of legal information. Then in July 2002 pictures of padlocks appeared all over the place, and the (non-paying) public largely was shut out.

I would imagine that non-lawyers make up a very small percentage of those using AustLII. If all else fails, their situation alone compels the existence of proper funding. If ordinary people cannot find out the law, then there is no rule of law. The jurist Lon Fuller made that point many years ago.