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Jigsaw

Jigsaw

 

Jeffrey Khoo

Commerce/Law I


When word went out that the Berlin Wall had fallen, the first thing the Stasi did was to take out their paper shredders. The East German regime kept files, meticulously collected through espionage and duress, on every foreign enemy and East German citizen suspected of anti-state activity. For days and nights without rest, the only sound that could be heard from Stasi HQ in Berlin-Lichtenburg was the low, mechanical drone of thousands of paper shredders engaged at once. When the shredders jammed, the Stasi tore up thousands of files by hand, and dumped them into 15,000 sacks.[1]

Recently, some have taken it upon themselves to restore the documents, painstakingly piecing the shreds back together as if completing a mammoth, yet incredibly delicate, jigsaw puzzle. The ‘puzzle women’ sit in the Stasi Records Agency near Nuremberg, sifting through six hundred million fragile slips, not daring to move too suddenly lest a gust of wind frustrate their efforts.[2]

What motivates the puzzle women to undertake such a laborious task with no end in sight? Regardless of motivation, the job of the puzzle women highlights how, in today’s legal system, justice is nothing without access to faithful documentation. Access to accurate legal information can represent a vindication of past wrongs and can help make sense of the past and present.

In Australia, the Freedom of Information Act 1982 (Cth) lists as its objective:

‘(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;

            (b) increasing scrutiny, discussion, comment and review of the Government’s activities.’[3]

The Act empowers every Australian to request access to most kinds of government documentation, including cases and statutes.[4] This, combined with the Act’s characterisation of government-held information as ‘a national resource’, affirms how on a macro-level, access to government documents strengthens our democratic institutions.

For years, this might have been nothing more than a fantasy. Tom Bruce, founder of the Legal Information Institute at Cornell University, speaks about how, in 1992 when the Institute was founded, ‘there was a nearly complete monopoly [on legal information] … really no demonstrable alternative to whatever [commercial distributors LexisNexis and West Publishing] chose to do.’[5] The cost of law reports and digests, and the absence of clear explanatory material on the law, meant that the general public had no entry point into this world they perceived as arcane. Developments in information and communications technology however, have allowed the quantity of legal information, the speed at which it is transcribed and released, and its potential reach to rise dramatically.

The most comprehensive example of this in Australia is the Australian Legal Information Institute (AustLII). Established in 1995, AustLII has brought the full text of almost all federal, state and NZ legislation and judicial decisions, along with a sizeable body of legal commentary, into the public domain of the internet.[6] Its status as a not-for-profit research centre makes it uniquely positioned to carry out its public policy objective of ‘advancing the public interest in free access to public legal information’;[7] AustLII avoids the pitfalls of commercial interests which may conflict with the public interest, while also operating free from any policy restriction on government bodies disseminating information.[8]

In an email interview with Andrew Mowbray and Philip Chung, Co-Directors at AustLII, on their pioneering work at the intersection of technology and legal tradition, they claimed that ‘AustLII was a reaction to the difficulties that existed in government and commercial attempts to publish legal information in Australia’. Mowbray founded AustLII along with Graham Greenleaf, with Chung joining at the end of 1995. Having seen commercial monopolies on legal information reach up to $720 per connect hour, it was ‘both philosophically and practically important ... that given that all citizens were presumed to know the law, that there should be some way of freely accessing it.’

One might imagine that the effort required to establish a database as comprehensive in time and space as AustLII must be comparable to that of the puzzle women. Whether the materials that they are working with are slips of paper or lines of code, these are people who are also trying to piece together their jigsaw puzzle, bit by bit, in the hope of revealing some cohesive, satisfying collection to share with the wider world. Starting this immense database was not without its challenges: ‘Technically we needed to develop and implement the new technologies ourselves,’ say Mowbray and Chung. ‘From a policy perspective, the concept that law should be free was only starting to emerge.’

Access to case law has allowed lawyers to reach for relevant authorities quickly, thereby strengthening and streamlining the process of arguing from precedent.[9] The computerisation of statute allows policymakers to undertake surveys of legislation on a topic and identify possible inconsistencies between laws.[10] Garry McGrath SC, a barrister at Eight Wentworth Chambers in the Sydney CBD, has also seen improvements in private practice. ‘When I first became aware that the internet was becoming an integral part of practice as a barrister, it was about 1990 or 1991’, he says. ‘The change for lawyers is that we have access to these resources from almost any location and any time, on their laptop, tablet or mobile.’ It is almost a given that the modern lawyer or law student has access to online research tools, but we are sometimes too quick to forget how it instigated a seismic change in people’s interactions with the law.

However, we must not be too quick to conflate mere access to legal information with effective public engagement with the law. The fact that cases and statutes are floating out there is not enough.[11] The Law Society of NSW identifies that the practice of law is ‘embedded within a web of social and personal issues.’[12] People, especially those in disadvantaged economic situations or from culturally diverse backgrounds, desire lawyers who are able to interpret legal jargon and give targeted, straightforward advice as it relates to their personal situation. ‘There is an established body of research that tells us online self-help legal information is generally not suited to people with people with low education levels or low proficiency in English,’ says Judith Levitan, a client service and digital engagement specialist at Legal Aid NSW, in an email interview. Although Levitan recognises how communications technology has helped professionals from Legal Aid and their clients in administrative matters, ‘human relationships are really at the heart of our work in disadvantaged communities.’

The challenges that face us in terms of processing and classifying the law have been apparent since before the internet: how to categorise something that defies categorisation; how to deal with language which is variable and imprecise; and how to organise the information architecture of the law in a way that makes sense.

The new AustLII interface has arguably made it easier to locate relevant information through visual cues and a decluttered screen, in tune with how individuals navigate websites on multiple platforms. But changes in the appearance of law may not automatically evoke clarity in legal documents or language itself. Garry McGrath cautions that the general public’s use of online legal information is conditional upon ‘the complexity of the area of law and whether other legal skills are necessary to understand, interpret or apply it.’

The sheer quantity of information available online means that a Google search on a legal problem that an individual might have - say, what they need to do to carry out a divorce, or to start a company - can sometimes be like walking alone into an enormous, imposing library: bookshelves overflowing with leather-bound law books ten storeys high, but without a friendly librarian to point you to where you need to go. There is a large, unmet need not just in terms of public access to legal information, but also regarding the steps after that information is obtained.[13] Technology, again, may provide a solution.

Andrew Mowbray and Philip Chung point to AustLII’s Communities Platform, which connects legal experts in a virtual forum for user-generated content. The Platform recently produced the Northern Territory Law Handbook, a plain English guide with 70 contributors covering over 100 topics in NT law. Similar efforts are underway for WA, Tasmania and the ACT. The success of this project points to how legal education can embrace community and collaboration in providing effective, inexpensive and intuitive access to law.

Legal-tech enterprises are starting to offer solutions to time-poor professionals and businesses without comprehensive legal knowledge. Judith Levitan suggests that short informative videos may help with connecting to disadvantaged communities about legal matters. All these people recognise and formulate the correct problem: that individuals and businesses may not need to know the law word-for-word, but they do need people to inform them about what they can do within the parameters of the law.

There is an argument that not only will this solve problems more efficiently, but it may act as a deterrent against unlawful behaviour: if people know what the law permits them to do, they are less likely to intentionally act outside those permissions. Levitan cautions, however, that ‘there are a range of factors that contribute to whether a person acts on that knowledge to resolve a legal problem, such as stress, money, lack of time, and lack of confidence in the legal system.’ In pointing to these fundamental structural faults, Levitan perceptively raises the responsibility and the failures of legal education in advancing democracy. Governments, lawyers and universities can no longer look at legal education as a topic area confined to prestigious law schools. They have a social and democratic obligation to reach out further than their comfort zones, so they can bring disadvantaged communities into them.

When looking at these huge projects, like the Stasi files, like AustLII, one might be inclined to ask: is it worth it? Why go to all this effort if it seems to be a losing battle, like tending to a garden which continues to sprout weeds?

For one, the work of providing legal information is at the very least symbolically significant. When speaking with Göran Lindblad, President of the European Platform for Memory and Conscience, he emphasised how his work coordinating research efforts and running projects like the Stasi files is as much about remembrance as it is about establishing justice. ‘Several former political prisoners are members of the Platform,’ he states. ‘Because of our work in opening up documents, some cases are now pursued in court ... For me personally, I am after justice for the victims and their families, as well as publishing this information to teach present and future generations about atrocities committed in the name of ideologies. Technology has not changed that.’

Legal information and legal documents, despite their peculiar impersonality, result in the substantive outcomes of providing just outcomes and closure to individuals. They represent something truthful and concrete in the midst of legal ambiguity and sterility. The importance of access to truthful records is not based out of some vague idea of posterity, of yellowing paper and exhibits in museums, but to remember and learn from our triumphs and our horrors in equal measure.

 

References

[1] Angelika Tannhof, The Stasi puzzle with 600 million pieces (22 August 2013) Deutsche Welle <http://www.dw.com/en/the-stasi-puzzle-with-600-million-pieces/a-17039143>.

[2] Anna Funder, Stasiland (Granta Books, 2003).

[3] Freedom of Information Act 1982 (Cth) s 3.

[4] Ibid s 11.

[5] Monica Bay and Bob Ambrogi, Legal Information Institute: Access To Legal Information For All (15 May 2017) Law Technology Now <https://legaltalknetwork.com/podcasts/law-technology-now/2017/05/legal-information-institute-access-to-legal-information-for-all/>.

 

[6] Petal Kinder, ‘The Adoption and Use of Computerised Legal Research Information in Australia’ (2005) 30 Canadian Law Library Review 68, 75.

[7] Australian Legal Information Institute, AustLII’s mission and objectives (1995) <http://www2.austlii.edu.au/~graham/Slides/London/mission.html>.

[8] Henry Perritt, Law and the Information Superhighway (Aspen Publishers Online, 2001) 729.

[9] The Hon Justice Stephen Gageler, ‘What is information technology doing to the common law?’ (2014) 39 Australian Bar Review 146 <http://www.hcourt.gov.au/assets/publications/speeches/current-justices/gagelerj/2014%2039%20australian%20bar%20review%20146.pdf>.

[10] The Hon Justice Michael Kirby, ‘The Computer, The Individual and The Law’ (Speech delivered at the 21st Australian Legal Convention, Hobart, Tasmania, 7 July 1981) <https://www.michaelkirby.com.au/images/stories/speeches/1980s/vol7/1981/221-Aus_Legal_Convention_-_The_Computer%2C_The_Individual_and_the_Law.pdf>.

[11] Thomas Bruce, ‘Public Legal Information: Focus And Future’ (2000) 2 University of Technology Sydney Law Review 16 <http://www5.austlii.edu.au/au/journals/UTSLawRw/2000/3.html>.

[12] Law Society of NSW, ‘The Future of Law and Innovation in the Profession’ (Report, 2017) 15.

[13] Ibid 57.