Journal of Law, Information and Science
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ALLISON STANFIELD[*]
The paper examines the ways in which courts are beginning to use computer technology and the Internet to handle their increasing workloads. It looks at both the potential of the new technologies to enable the courts to work more efficiently and the problems to which they give rise. Areas examined include the electronic filing of documents and appeal books, medium neutral citations of legal materials, the advantages of electronic materials for legal research, moves to develop virtual court rooms and to use on-line systems as a way of making information and evidence available to the parties to litigation both inside and outside the court room and schemes to give the public access to computer terminals programmed to help them prepare legal documents in areas such as divorce, small claims, landlord and tenant and enforcement of judgments. Finally the paper raises some of the issues of principle which have to be determined to enable the technologies to be used to their fullest potential, issues such as the conflict between the right of the public to have unlimited access to legal materials and the rights of litigants to privacy, the need to ensure that information kept in court records is kept secure, reconciling the interest of the public in free, unrestricted access to legal materials with that of the government in selling such information as a way of recouping some of the costs of maintaining the legal system and the threat to public access posed by the Crown’s claim to copyright in legislation and the decisions of the courts.
"I do not underestimate the power of the legal system to work slowly".[1]
The business world has indeed left the legal world behind when it comes to using technology. Often, the reason businesses have moved to using technology is that it is more cost effective to share and store information digitally. Clients will expect their lawyers, and the courts, to do the same.
Lawyers are typically voracious users of documentation. Documentation necessarily means volumes of text which require collecting, collating, indexing and a means of retrieval. The Internet now provides a wide range of legal information and the benefits of information being provided in this way is that it can be kept up-to-date as the law changes. Not only can the Internet assist in legal research, but it can also assist in court processes generally, that is, in trial preparation and in the courtroom throughout the hearing.
Why courts should embrace technology is easily answered:
• increasing caseload;
• increasing complexity of cases;
• increasing jurisdiction;
• resource constraints;
• pressure to improve access to justice;
• expectations of improvement in performance; and
• pressure to improve efficiency and effectiveness in court administration and the delivery of justice.
Often, these problems are compounded because there is no corresponding increase in the number of judges[2] or staff[3] to counteract the problems.[4] It may be possible to use the Internet to ensure that data is only entered once into the system, an aim which also accords with the notion of integrated justice.[5]
The areas to be considered in addressing how courts should tackle these problems are as follows:
• security
• electronic appeals and electronic filing
• legal research
• standards
• inside the courtroom (including litigation support)
• judicial education
• legislative changes
• public examination of court information
• privacy
• free access
• copyright
Security is a real, yet unresolved, issue. It is perhaps somewhat trite to note that courts will not allow their networks to be exposed to an outside link unless and until failsafe firewalls have been developed. This issue is simply acknowledged.
Electronic filing is directly related to the issue of electronic appeal books: a Notice of Appeal is included in an appeal book, so it is obviously beneficial to obtain the Notice of Appeal, in the first instance, in electronic format.
David J. Egar[6] commented that the proliferation of computers, local area networks (LANS), and electronic mail technologies which presently exist within courts presents a unique opportunity to organise procedures cost effectively,[7] and one method courts can use to ease growing caseloads is electronic filing. Electronic filing can reduce costs spent on paper, town agents fees and lodging clerk fees, and it can reduce duplication of data and increase accuracy in data record keeping. In addition, documents can be filed 24 hours a day:
"Imagine a lawyer working late at night putting the finishing touches on a set of pleadings. A few more clicks of the mouse and the document is on file with the court."[8]
An electronic filing pilot project is being conducted over the Queensland Law Foundation Technology Services Pty Ltd's THEMIS network, which is a secure extranet for legal practitioners. Legal Aid Queensland completes the Notice of Appeal, with additional information required by the Court of Appeal, and electronically forwards it to the Court. A hard copy can be generated which looks identical to the traditional hard copy and the electronic information is then imported directly into the Court of Appeal Case Management System (CAMS).
One of the main benefits of this pilot project is that Legal Aid Queensland already maintains some of the data which is required on appeal. If this information can be utilised directly from Legal Aid’s database, duplication will be avoided and the scope for error reduced. It is hoped that this will go some way towards providing integrated justice.
Electronic filing has already been trialled in the United States, for example, in Ohio, where the District Court went “live” on 2 January 1996 with an electronic filing project to cope with its overwhelming maritime asbestos caseload,[9] and in Maricopa County (Phoenix, Arizona), where court forms can be downloaded from an electronic bulletin board,[10] completed, and filed electronically.[11] Electronic filing is also being trialled in the Maryland Circuit Court[12] and similar procedures are underway federally.[13]
The Victorian Magistrates Court permits electronic filing of documents[14] using what is known as the “Courts EDI service” which allows law firms to issue legal process and file documents electronically at any court in Victoria from their office. The South Australian Supreme Court is permitting limited electronic access in a pilot project.[15] The High Court is considering electronic filing over the Internet.[16]
One of the problems with utilising electronic filing is that often forms are required to be signed personally by the party who is filing the document. If electronic filing is be implemented as common practice, the Legislature or the Court would be required to amend rules governing procedure.[17] One way to deal with this may be the use of electronic signatures.
This issue has already been considered by some United States jurisdictions, for example, Utah.[18] California followed Utah's lead last year by passing similar statutes and the American Bar Association has proposed a draft model for national legislation based on Utah's example. Other jurisdictions, such as Canadian provinces and Chile, are also setting up digital signature infrastructures.[19] Indeed, the laws in California and Utah provide the legal framework to make digital signatures as binding as pen on paper which may be considered a necessary step for widespread employment of electronic commerce and to create a system for ensuring the integrity of digital signatures. Billing procedures may be affected; for example, filing fees could be payable at the time of electronic lodgment either by deducting the appropriate fee from a credit account, or even something akin to an electronic funds transfer (EFT).
Standards Australia has formed a sub-committee to look specifically at a public key authentication framework (which includes digital signatures). A report published last year, The Strategies for the Implementation of a Public Key Authentication Framework (PKAF) in Australia (SAA MPA 75) is being used as the framework for standards being developed by sub-committee. In July 1997 the Commonwealth Attorney-General announced the establishment of an expert group, the Electronic Commerce Expert Group (ECEG) to "identify and, where necessary, propose remedies to any legal impediments to the adoption of electronic commerce". One of the challenges is digital signatures.[20]
There are those who argue against the implementation of electronic filing (efiling). Some of the myths surrounding efiling are:[21]
• "Electronic documents are easily changed" - with digital signatures, legal documents can actually be made more secure than hard copy - the document is encrypted or "locked" and if it changes in any way, it cannot be unlocked.
• "Hackers can submit documents for filing" - in the present system, it is difficult to check the authenticity of the signature on a hard copy.
• "Unrepresented litigants and those with limited financial resources cannot file documents electronically" - these litigants can still file documents in hard copy and these can be scanned into the system.
The Council of Chief Justices (CCJ) (Australia and New Zealand) has embarked on a project to investigate the use of electronic appeal books and the benefits of using electronic appeal books has been recognised by Chief Justice Brennan.[22] The Queensland Law Foundation Technology Services Pty Ltd (QLFTS) has been appointed as consultant to advise the CCJ on the implementation of electronic appeal books.
In its Project Plan,[23] the consultant has focussed on four areas:
• Cost benefit analysis
• Standards
• The "Virtual Appeal Book"
• Facilitation of Pilot Initiatives
A cost-benefit analysis is being undertaken, using the Court of Appeal (Qld) as a sample court and the final result of the cost-benefit analysis will be set out in the Final Report to the CCJ in early 1998.
The issue of standards is very important especially if information is to be created in, collected in, and exchanged between courts (see Standards below).
Having investigated several jurisdictions already, the consultant has realised that the contents of the appeal book vary from jurisdiction to jurisdiction. Therefore, it is not intended that the Virtual Appeal Book simply be an electronic replacement for the existing hard copy appeal books, rather the consultant will place in the electronic appeal book those items which a judge really uses on the bench. It is intended that the electronicAppeal Book be a "toolkit" for judges to use, so not only those items traditionally placed in the appeal book, such as the judgment below, the transcript of the hearing below, relevant exhibits, the notice of appeal and so on will be included in the Appeal Book, but also the outlines of argument, relevant caselaw and legislation. It is intended that the Virtual Appeal Book be prepared using a web-browser interface, making it easy to use by judges and practitioners.
The consultant is facilitating pilot initiatives such as an electronic filing initiative between the Court of Appeal and Legal Aid Queensland and the use of an electronic appeal book in the Supreme Court of Western Australia.
The use of electronic appeal books was trialled in the Alberta Court of Appeal from 1994 with the result that the EDR (Electronic Document Reading) Committee recommended to the court that electronic appeal books be used for all appeals.[24] Correspondence with the Registrar of the Alberta Court of Appeal has revealed that those parties wishing to use electronic appeal books are doing so and that a committee will soon be set up to investigate the total use of electronic appeal books.
At present the Court requires the electronic appeal books to be filed in SmarText which is a proprietary software and has both a building and a reading component in it. Although the software is no longer supported, the Court has not moved away from it because the judiciary likes it so much and because there is likely to be an upgrade in software soon when the electronic services available to the judiciary are enhanced. In addition, the Court is looking to set up a Committee to study the feasibility of moving towards the total use of electronic appeal books. All appeal books are placed on the local area network which is accessible by the judiciary from their chambers, the courtrooms or their homes.
The pilot project has demonstrated the need to check the appeal books when they are filed with the court to ensure that they comply with the Court's guidelines.
Obviously, if there is going to be a shift towards the use of electronic materials in courts, particularly if the Internet is to be used as a medium, standards need to be developed to ensure that data is captured consistently, not only within a particular court, but also across jurisdictions. It is also important that if information is to be provided over the Internet, it must be capable of being easily utilised by lawyers and provided in Court in a way which is acceptable to judges.
There are then two issues to consider: (a) the consistent capture of source material; (b) the use of medium neutral citations. The consultant to the Council of Chief Justices electronic appeals project is considering these issues.[25]
Use of medium neutral citations means that documents can be viewed using any medium, for example, a word processor, on the Internet or even a hard copy. Further, such citations means that authorities can be cited without relying on publishers.
One way to ensure this can be done is to use paragraph numbering instead of page numbering; when text is transported from one medium to another, page numbers change or are actually lost. Paragraph numbering makes it easy to find particular areas of text, notwithstanding the medium used. The High Court's first judgments which were delivered in 1998 contain paragraph numbering and the judgments can be found at the High Court's website.[26]
In the United States, the American Bar Association’s Special Committee on Citation Issues submitted, in May 1996, a report to the Board of Governors and House of Delegates of the ABA which recommended that all jurisdictions adopt a system for citation to case reports which would be equally effective for printed case reports and for case reports electronically published on computer discs or network services.[27] Notwithstanding some strong opposition to the recommendation from the judiciary and from the publishing houses, particularly the West Publishing Company, which has a monopoly over the publishing of court reports, the House of Delegates adopted the Special Committee's Resolution in August 1996.[28] Since then, some courts, such as the Montana Supreme Court,[29] have adopted the medium neutral citation format. However, the ABA's recommendation has not been widely implemented.[30]
One way to introduce standards is to embrace the use of metadata.[31] Metatags can be embedded in a document which will "tag" certain pieces of information. In legal documents, this could be information such as the judge’s name, the date of the hearing, the name of the matter and so on. If source documents tag relevant information, these tags can then be used to generate the appeal book index by running a script over the documents to extract the relevant tagged information.
Professor Bing in Greenleaf, Mowbray and Lewis’ Australasian Computerised Legal Information Handbook said:
"... textual objects surround the lawyer like a vast and lettered landscape. When solving a legal problem, the lawyer - like some sort of human helicopter - lands somewhere in this landscape, examines the textual surroundings, digging for clues in the ground, examining details of tangled growths, until taking off for a new and promising state. The lawyer is like a treasure hunter in the wilderness of legal sources ... the lawyer is dependent upon some sort of navigation instruments and treasure maps. The most efficient retrieval tool available is the computerized legal information services. A lawyer not familiar with such tools may not be considered illiterate today, but he certainly will be severely handicapped tomorrow".[32]
If the judiciary has quick and reliable electronic access to legal research materials in the courtroom or in chambers, then arguably, less time needs to be spent in chambers conducting paper-based research. This has been proven in cases such as the Woods’ Inquiry[33] where the need for individual libraries and time-consuming searches through volumes of case material or legislation has been reduced. Relevant sections of cases or legislation can be copied from the screen and into a judgment. Before considering the legal research material which is available on the Internet, the following alternatives might be considered:
The benefits of CD-Rom search tools are that they provide speedy research, are usually well-indexed and have sophisticated search engines. The disadvantage of CD-Rom is that it becomes outdated almost as soon as it is printed, necessitating an online update. For this reason, the way of the future seems to be towards online facilities, such as the Internet, or even intranets.
Intranets are often preferred to the Internet because the information can be provided in a relatively secure manner and the information which is provided can be controlled. An example of one such Intranet is that of THEMIS, developed by the Queensland Law Foundation Technology Services Pty Ltd, which provides electronic access to legislative reprints.[34]
Sentencing databases, like that developed by the Judicial Information Research System (JIRS) in New South Wales, can prove useful to judges who are to sentence a convicted criminal, or to Courts of Appeal considering an appeal against sentence. The JIRS has enhanced the existing Sentencing Information System (SIS) which is now modular, Windows-based, more user-friendly, has sophisticated search capabilities and is provided over a secure intranet.[35]
Many courts have a database of their delivered judgments, particularly Court of Appeal or Full Court judgments. The judges and their Associates can access the database from their desktop.[36] Such databases are important to ensure that a particular Court is aware of its own judgments and to that ensure consistent decisions are made.
Finally, the Internet contains a wealth of legal research material,[37] especially on laws of the United States and Australia and some judges already use the Internet for legal research purposes.[38] The Australasian Legal Information Institute’s (AustLII) site[39] provides a well-indexed site with links to other legal research sites throughout the world. Additionally, publishers such as Butterworths,[40] have started making their subscription services available over the Internet and some authors already publish directly to the Internet.
Advantages of the Internet are that the information is generally current and up-to-date, it is easily accessible and the information is freely available. One disadvantage is that the information is not secure and downloading information can be slow depending on phone line traffic. However, the main concern is that cases and legislation provided over the Internet are not “authorised”; that is, only the authorised reports (such as the Commonwealth Law Reports) can be relied upon in Court as authority although this may be overcome by the adoption of medium neutral citations.
There is also a concern that reports published to the Internet can be sabotaged, although this can be overcome by keeping a duplicate copy of a Court's database and ensuring that the Internet server is regularly updated, via a one-way modem link, from the duplicate database. Until this dilemma has been resolved by the legislature, information obtained from the Internet may be used as reference material only.
However, the Internet is still one of the most valuable legal research tools available at present. Even if material is not immediately available on-line, an electronic version of the sought-after material can generally be obtained within a relatively short time. For example, a 100 page article no longer needs to be photocopied from a law school; instead, a law library, such as the Cornell Law Library[41], can email an article within a matter of hours.
Recently, Australia's first accredited and totally electronic law journal, the National Law Review[42] was launched. Numerous other electronic journals can be located on the AustLII site.[43]
The use of technology within the courtroom has been shown to reduce hearing time significantly in several high profile cases such as the Woods Royal Commission, the Estate Mortgage case, the Gretley Coal Mine disaster and the Rothwells trial.
Many traditional litigation support initiatives have focussed upon the gathering, classification, storage and retrieval of information for one party involved in litigation. The new paradigm is to move towards a more integrated approach to litigation support so that materials gathered electronically during discovery can be taken into, and used in, the courtroom.
In particular, the Woods Royal Commission and the Investigation by the Court of Coal Mines Regulation into the death by drowning of four coal miners at the Gretley Colliery near Newcastle have used a collaborative litigation support model. It is interesting to note that these systems were actually initiated by the courts themselves, rather than by the parties, and all parties to the litigation were provided with access to the system both from within and outside the courtroom.
Such litigation support systems have the following features:
• delivery through an on-line system which can be constantly and dynamically updated throughout the proceedings (eg. intranet technology)
• integration of documents tendered as evidence, court filed documents, real time transcript (RTT) and legal authorities
• delivery with powerful search engine facilities
• delivery over a secure communications infrastructure
• available from within and outside the courtroom
• driven more and more by the courts or tribunals themselves
In the Estate Mortgage case the developers of the system were keen to ensure that it remained an open system:
"The $600,000 courtroom set-up has more than 50 terminals - including Windows '95, Windows 3.1, Unix and Macintosh - with a simple network look intranet in six dedicated servers with more than 75 gigabytes hard disk capacity."[44]
In addition, the database was accessible through the Estate Mortgage Home Page using Netscape Navigator or Microsoft's Internet Explorer which made the information easily accessible to parties and the bench:
"Lawyers don't want to spend forever learning how to run a whole lot of programs. What they want is easy, open access. What they want is to be able to call up information at a simple click": Chris Priestley[45]
An agreed courtbook of some 30,000 documents, which was fully text-searchable, could be accessed from the in-court system. As more documents were added, these would be indexed and added to the search retrieval engine.
Real-time transcript was used which could be monitored as evidence was taken and all the documents were accessible via an intranet.
Real-time transcript allows transcript to be viewed on the screen as the trial proceeds. At the end of each day, the transcript can be added into the Court's database and indexed so it is fully text-searchable. Judges especially like real-time transcript as personal notes can be made against the transcript as the matter proceeds. These notes can be collected at the end of the day and parts of the transcript can be easily found.
The Internet can be used as a medium for making available transcript to the parties and any other interested person; in fact, High Court transcripts are already available on the Internet at the AustLII site.[46]
A virtual courtroom is one which need not exist anywhere but electronically. Using internet technology, a courtroom can be configured without requiring parties to spend a fortune on additional hardware and software.
In the United States, Courtroom 21, "The Courtroom of the 21st Century Today," is located at the College of William & Mary Law School and is arguably the world's most technologically advanced trial and appellate courtroom.[47]
The Singapore Supreme Court has successfully set up a virtual courtroom known as “The Technology Court”,[48] some of the features of which include:
• A local area network (LAN) which allows a channel of communication between the PC's, the network servers and the Internet. The use of imaging, multimedia and video conferencing can also be accommodated.
• A Litigation Support System for Presentation (LSSP) which allows lawyers to convert paper documents into an electronic format and to incorporate these into multimedia presentations.
• A Computer Based Recording Transcription System (CBRT) to aid the recording and transcription of court proceedings and to reduce the time taken to produce transcripts of audio records of court proceedings.
• The Technology Court has a sophisticated audio visual system (AVS) which allows various types of audio and video information to be presented with ease.
• The Technology Court is provided with the necessary equipment to allow video conferencing to be used with minimal difficulty. This will allow foreign witnesses to give evidence in any proceedings without the need to arrange costly flights to Singapore and accommodation.
• The Supreme Court Infokiosk System (SCIS) is being launched in conjunction with the Technology Court. The SCIS has a touch sensitive screen which allows a user to obtain information on hearing schedules, the location of counter services in the Supreme Court and to call up a multimedia floor directory of the Supreme Court complex.
Essentially, the feature of a virtual courtroom is that a decision can be made without ever having to set foot inside a courtroom.[49]
Many judges already use laptops everyday, especially in reviewing transcripts, doing last minute checking when completing a judgment and concluding orders and so forth from within the courtroom. For example, Justice Byrne of the Victorian Supreme Court has commented:[50]
“My associate sits in court with me and types the orders as I make them. As soon as he has finished typing them, I can check them and sign them. He directs them back to the solicitor’s office and in many cases the order will actually beat the solicitor back to the office.”
This could be taken one step further by transmitting orders over the Internet. Security may be an issue, but may perhaps be addressed by the use of digital signatures.
Some members of the judiciary revise transcript on disk and also prepare their draft judgments using materials which are electronically available.
Counsel could scan their exhibits prior to the trial and then present the information via monitors to the court. Some of the advantages of producing evidence at trial electronically have been noted by Justice Woods.[51] Firstly, the system would simplify the task of juries - they would no longer have to sift through numerous documents in hard copy, but could access the exhibits via a PC while deliberating. Secondly, the pleadings, affidavits, written submissions and other documents filed by the parties, so as to permit their rapid recall and immediate availability to all participants in the trial when used in the course of the evidence or argument could be added. Finally, this facility lends itself readily to the display of charts, diagrams, maps, reconstructions and visual presentations of all kinds.
It is important that the judiciary be able to communicate with one another on a confidential basis. There are already a number of electronic bulletin boards in the USA. In particular, Michigan has the “Great Lakes Free Net: Judges Forum”[52] which is a restricted access bulletin board, where judges can communicate confidentially with each other. California and Philadelphia have similar bulletin boards and recently, the National Centre for State Courts’ Technology Programs secured a grant to develop guidelines to help courts connect to the Internet.
Florida’s Eighth Judicial Circuit has implemented a Criminal Justice Information System (“CJIS”) network which enables courts to share case information.[53]
Already, court officers in Australia are using the Internet to electronically exchange information, via e-mail, and to exchange email with colleagues in their own jurisdiction and aboard.
Another benefit of using electronic communication is that there will be a reduced need to travel - rather, meetings etc can be attended using telephone, video or even e-mail.[54]
In the USA, the Judicial Administration Division’s aim is to ensure judges can have access to what they need, especially equipment and training. In particular, information can be obtained from the American Bar Association’s web site[55].
The Council of Chief Justices Working Party on Electronic Appeals also recognises that judicial education is an important part of enabling judges to use computers and to highlight the benefits of using technology.
At present, it seems that the Evidence Act 1977 (Qld) and the Evidence Act 1995 (Cth) already provide for proof of documents on computer or disk. Section 3(e) of the Evidence Act 1977 (Qld) defines “document” to include any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and s.3(g) defines it to include any other record of information whatever.
Section 95(1) of the Evidence Act 1977 (Qld) provides that a statement contained in a document produced by a computer shall be admissible provided certain conditions are met.[56] “Computer” is defined as any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived therefrom by calculation, comparison or any other process”.[57]
The Queensland Law Reform Commission has been asked by the Attorney-General and Minister for Justice to review the law relating to the receipt of evidence in an electronic, magnetic or similar form in Queensland.[58]
Section 48(1)(b) of the Evidence Act 1995 (Cth) governs the proof of the contents of documents and includes documents that have been produced by a device that reproduces the contents of documents.
O 9 r 5 of the Criminal Practice Rules 1900 has already been considered above in the context of electronic filing, that is, that amendments would need to be made to the legislation in order to enable documents to be “signed” electronically. This would equally apply to indictments[59] and the meaning of “signing” documents such as writs[60] would need to be clarified.
Another point to be considered by the legislature is the use of electronic versions of judgments and legislation. These are not authorised and many carry a warning upon them that they are not authorised and should not be relied upon in court. Legislation may be required to enable electronic versions of judgments and legislation to be relied upon in court, an obvious concern being the security and integrity of these documents.
Much of the information which is searched on paper and over the counter has already been captured electronically. For example, the registry staff of the Queensland Court of Appeal spends much of its time answering queries in relation to the status of appeals. The Court of Appeal plans to make its database available to the public at a web-site such as that to be established by the Supreme Court Library or the Queensland Law Society.[61]
In Phoenix Arizona, QuickCourt “kiosks” have been set up. These are designed to answer questions from an array of legal topics (such as divorce, landlord and tenant rights, enforcement of judgments, alternative dispute resolution and small claims).[62] If, for example, “divorce” is selected, the ATM-like machine asks the user questions and the user simply types in the answers. Once all questions have been answered, a set of documents is printed out and a set of instructions is given indicating what must be done with the documents. For example, some have to be notarised, some copied, some served and some lodged with the court.[63] Similar “kiosks” have been developed in the UK[64] and in Singapore.[65]
The right of the public to obtain court information may conflict with the right of individuals to maintain and protect their privacy. In addition, privacy issues must be considered under statute and at common law.
The right of the public to obtain information held by government bodies is given by the Freedom of Information legislation,[66] although there are exemptions available for documents which contain personal information about a person.[67]
The Privacy Act 1988 (Cth) provides that personal information is not to be collected for inclusion in a record or in a generally available publication unless (a) the information is collected for a purpose that is a lawful purpose directly related to a function or activity of the collector; and (b) the collection of the information is necessary for or directly related to that purpose.
Section 14(1) of the Privacy Act 1988 (Cth) sets out the Information Privacy Principles. However, acts or practices done pursuant to the Freedom of Information Act 1982 (Cth) are not acts or practices for the purposes of the Privacy Act 1988 (Cth).[68]
In May 1996, the Australian Legal Information Institute (AustLII)[69] was embroiled in a dispute where it was believed that it had committed invasions of privacy and possible breaches of s.221 of the Family Law Act 1975 (Cth)[70], by the publication of decisions of the Family Court at its web-site. The publication of these decisions was suspended until the issue had been resolved. On 19 June 1996 the Commonwealth Attorney-General and Minister for Justice released a News Release entitled "Internet Material Cleared" which effectively stated that there was no unauthorised material such as case files available on the database. The Attorney-General pointed out that Family Court decisions which are published on the database have been available for many years in commercial law reports and said that he was satisfied that the Department, AustLII, the Law Foundation of New South Wales and the Family Court had acted appropriately in providing selected and edited Family Court decisions through the electronic services. He said that the publication of such decisions does not breach any prohibition on publication or privacy legislation.
AustLII believes that this episode was significant in a number of respects. Firstly, it reinforced AustLII’s conviction that it must be the responsibility of the public bodies providing data containing personal information to make decisions concerning the appropriate balance between privacy interests and the public interest in publication, and that AustLII cannot edit or censor such data. However, AustLII believes that it is appropriate for Courts and other public bodies to re-assess their publication practices concerning questions such as anonymity in light of the different accessibility of materials via the internet. Secondly, AustLII believes that it had a responsibility not to seek inappropriate use of the database, so (for example) excluded robots (see Security below) from indexing any of the case-law databases. Lastly, AustLII said that the initial apparent criticism of AustLII from some sections of the media caused a storm of e-mail from AustLII's supporters, and within a few days a number of newspapers and magazines had published editorials defending AustLII's role in publishing these decisions.
There is little common law governing privacy issues in Australia. In the USA, the US Supreme Court has recognised a general common law right to inspect and copy public documents and records of the judiciary.[71] The US National Center for State Courts (NCSC) suggests, however, that it has not been made clear whether the common law right to inspect and copy public records and documents of the judiciary is absolute. Rather, it suggests that the courts have general supervisory powers over their own records, which include the authority to prevent improper use of such records.
Because information contained in Court records may be exempt documents pursuant to the Freedom of Information legislation, or may fall within the Privacy Principles set out under the Privacy Act 1988 (Cth), the information, obviously, needs to be secure. There is a need for procedures and policies to be put in place to preserve security. Also, guidelines need to be developed for archival and retrieval of such information.
If information is being made publicly available over the Internet, then it may be feasible to ensure the server is fitted with "robot exclusion" software. WWW Robots (also called wanderers or spiders) are programs that traverse many pages in the World Wide Web by recursively retrieving linked pages. A Robot Excluder can tell a robot which areas of the server cannot be accessed.[72]
There is a view that judgments and legislation should be freely available;[73] AustLII being one such organisation holding that view. AustLII tells prospective information providers that it is "willing to do all the hard work to provide this information free to the public, if only you will licence it to us/release it into the public domain."[74] This is consistent with the view that court systems should not set up public or private monopolies over their information resources.[75]
AustLII's policy is that the philosophy "access to justice" requires that access to "public legal information" should be maximised and believes that public authorities[76] should provide public legal information in accordance with five criteria:[77]
• in a completed form, including such additional information as is best provided at source, for example, catchwords for judgments;
• in an authoritative form, including acceptable citations and numbering;
• in a form facilitating dissemination;
• on a marginal-cost-recovery basis equally to anyone who wishes to obtain it, ie public policy should support maximising public access to the law; its dissemination should not be regarded as a "profit centre" supporting other aspects of the operation of the judicial system;[78] and
• with no restriction on re-use for any purpose, and no licence fees.
As the President of the Court of Appeal (Qld) has noted,[79] free electronic access to judgments would be consistent with an appropriately open and accountable judicial system and the Court would benefit if such a resource was used by legal practitioners, and unrepresented litigants, to improve the quality of arguments presented to the Court; further, the public would benefit if the substantial costs associated with the use of existing on-line legal databases or CD-ROM material could be avoided. However, his Honour noted that the major obstacle in making judgments freely available is that the Supreme Court Library provides the Court of Appeal with necessary library services in return for copies of its judgments which the Library sells to raise funds. In order to make judgments available freely, additional public funding for the Library might be necessary. Alternatively, it would be necessary for the Court of Appeal to be provided with additional funding to pay for library services. Until such obstacles are overcome, judgments, certainly from Queensland, will not be made available over the Internet.
A complete investigation of this topic is beyond the scope of this paper and it is intended to merely note some of the issues raised with respect to copyright in judgments.
Greenleaf and Mowbray[80] note that Australia is the only country, to their knowledge, to claim that the output of Courts and Parliament alike is Crown copyright material.[81] They note that the State and Federal Governments agreed to restrict the right of individuals to electronically store and reproduce 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 Government's view.
A dated argument runs that copyright vested in the Crown.[82] Indeed, in some early English decisions, it was said that “...a copyright was a thing acknowledged at common law; and ... that the King had this right ... “.[83] Bannon QC suggests that the same argument would not apply today because judges are not employees of the Crown.[84] The question then arises as to whether copyright vests in individual judges, or with the Government. It is submitted that there is no clear answer to this question and that it should be resolved one way or the other by the Legislature.
There are a variety of ways in which the Internet can be used to decrease the burdens which courts today are facing. In particular, the Internet can be used at all stages of the court proceeding, from filing the originating or appellate proceeding, to final determination.
The move towards the use of technology, and the Internet, within courts will, no doubt, be a gradual one, however, it is one which courts should consider incorporating into their strategic plans. In addition, it is important that representatives from courts throughout Australia meet regularly with a view to comparing systems and maintaining consistency when appropriate.
Courts should work in conjunction with justice organisations with a view to providing an integrated system of justice. Technology can assist this by ensuring data is entered only once and exchanged electronically.
[*] LLM, Senior Deputy Registrar, Court of Appeal (Qld). From October 1997 Allison has taken leave from the Court of Appeal to work as Assistant Manager to the Queensland Law Foundation Technology Services Pty Ltd.
[1] McMillan, James E., "Toward the Electronic Court", (1995) Trial 19 at 24.
[2] In the Fourth Annual Report of the Court of Appeal (Qld) at 21, the President comments that “... there has been a steady increase since [the 1991-92 financial year] and the total number of appellate matters instituted in the 1994-95 financial year was more than one-third (34.7%) more than the number commenced in 1991-92.”
[3] Such as staff lawyers: Fourth Annual Report of the Court of Appeal (Qld) at 109; Meador, Rosenberg and Carrington Appellate Courts - Structures, Functions, Processes and Personnel Contemporary Legal Education Series, Charlottesville, 1994 at 430-442
[4] In the Queensland Court of Appeal during the 1994-95 year, 240 civil matters were commenced and 575 criminal (total 815). By way of comparison, the Victorian Court of Appeal was established with nine Judges of Appeal (see The Hon. Mr Justice P.W. Young “Victorian Court of Appeal” (1995) 69 ALJ 566) and in 1994, 325 criminal and 255 civil appeals were filed for hearing in the Victorian Full Court of Criminal Appeal.
[5] See, for example, “Justice in the Balance - 2020” Report of the Commission of the Future of the California Courts.
[6] Court Administrator Snake River Basin Adjudication District Court Twin Falls, Idaho: see further http://ncsc.dni.us/ncsc/ctc4/articles/elec_c.htm
[7] An electronic filing project was developed by the Snake River Basin Adjudication, District Court (SRBA) in Twin Falls, Idaho, with support from the Idaho Supreme Court. The SRBA is a civil court with exclusive jurisdiction to decide the right to use water in the Snake River Basin (covering 95 percent of Idaho). Parties to the adjudication include the United States (subject to state jurisdiction under the McCarran Amendment, 43 U.S.C. º 666), four Native American Indian tribes, the state of Idaho, businesses, corporations, and individuals. The SRBA is the largest case in Idaho history and includes over 150,000 claims.
[8] Jacobius, A., "Two More Courts Add Electronic Filing", (1995) ABA Journal, 20
[9] Ed. Note, "Electronic Filing System Brings Order to Mountain of Documents", The Third Branch, February 1996
[10] http://www.maricopa.gov/supcrt/ssc/sscforms/geninfo.html
[11] See further J.N. Kirdendall, "Where Judges Fit into the Electronic Future", (1996) 35 (1) Judges Journal 35
[12] http://www.govtech.net/1995/gt/jul/dept/justice.htm
[13] For example, there is a proposal to amend r 25(a)(2) Federal Rules of Appellate Procedure to allow each Circuit of the US Courts of Appeal for the Federal Circuit to "permit papers to be filed or signed by electronic means, provided such means are consistent with technical standards, if any, established by the Judicial Conference of the United States." (see Advisory Committee on Appellate Rules Submission to Standing Committee on Rules, Part I.A(1), Summary - Rules for Judicial Conference, 5 June 1995, p.11). See also Commission on the Future of California Courts, Justice in the Balance: 2020, 1993, p.108.
[14] Magistrates Court Civil Procedure Rules 1989 (Vic.), rr 1.20, 4.02.1-3
[15] The system is used for lodging and settling court orders, electronic communication between law firms and officers of the Court and to allow firms to search the Court's lists. The Court also intends to allow proceedings to be initiated electronically: AIJA, 1994, Case Management in the Higher Courts, p.68; The Bulletin 4 July 1995, 44.
[17] For example, in Queensland, O9 r5 of the Criminal Practice Rules 1900 provides that a notice of appeal, an application for leave to appeal, or a notice of application for extension of time, must “be signed by the appellant himself” except if a question of insanity is involved or the appellant is a body corporate.
[18] http://www.jmls.edu/cyber/statutes/udsa.html
[19] http://www.govtech.net:80/1996/gt/feb/digsigfeb/digsigfeb.htm
[20] See further http://law.gov.au/aghome/advisory/eceg/eceg.htm
[21] Taken from McMillan, James E., "Toward the Electronic Court", (1995) Trial 19.
[22] The Hon. Sir Gerard Brennan, Chief Justice of Australia, "Key Issues in Judicial Administration", joint presentation with the Rt Hon. Sir Thomas Eichelbaum, CBE, Chief Justice of New Zealand to the 15th AIJA Annual Conference, Wellington, New Zealand, September, 1996 at 14-15.
[23] A copy of the Project Plan can be found at the AustLII website: http://www.austlii.edu.au or email Joanne Sherman: jsherman@themis.com.au or the writer: astanfield@themis.com.au
[24] See Kerams, The Honourable Roger P., "Use of Electronic Appeal Transcripts in the Alberta Court of Appeal", Fifth National Court Technology Conference (CTC5), National Centre for State Courts, September 1997.
[25] See also Greenleaf G., Mowbray A., King G., Chung P., “AustLII and the Courts: public information in the public interest”, paper presented to the 15th Annual AIJA Conference, Wellington, New Zealand, September 1996; http://www2.austlii.edu.au/~graham/
[26] See http://www.hcourt.gov.au
[27] See http://www.abanet.org/citation/resolution.html for the contents of the resolution.
[28] See http://www.abanet.org/citation/history.html for a history of the ABA Special Committee on Citation Issues.
[29] See http://www.aallnet.org/press/press980106b.html
[30] for a good summary of the medium neutral citation debate in the United States, see an opinion by Jol Silversmith at http://www.collegehill.com./ilp-news/silversmith.html
[31] For more information on metadata: http://www.dstc.edu.au
[32] Professor dr. juris Joh Bing, Foreword, Greenleaf, G.W., Mowbray, A.S., Lewis, D.P., “Australasian Computerised Legal Information Handbook”, Butterworths, 1988.
[33] Justice James Woods, "Royal Commission into the New South Wales Police Service: Use of Technology", paper presented to the 15th AIJA Annual Conference, Wellington, New Zealand, September 1996 at 9-10.
[34] See Fox, M., “QLS Private Electronic Network”, (1996) 4 Proctor 4; Sherman, J., “QLS Electronic Network”, (1996) 6 Proctor 8; Sherman, J., “Accessing Legal Information via the Internet”, (1996) 9 Proctor 16.
[35] See further Schmatt, E., “Judicial Information Research System (JIRS) - A new and integrated approach to the provision of electronic information services to the judiciary”, (1996) 8 (7) Judicial Officers Bulletin, 49.
[36] See, for example, Fourth Annual Report of the Court of Appeal (Qld) at 17.
[37] some Internet legal research sites include the AustLII site (http://www.austlii.edu.au/); the Lawnet site (http://www.lawnet.com.au/); the Cornell Law School site (http://www.law.cornell.edu/); the University of Chicago site (http://www.lib.uchicago.edu/) and the National Library of Australia (http://www.nla.gov.au/); for further information, see Naumczyk, E., “Finding the law on the Internet”, (1996) 31 (7) Australian Lawyer 40.
[38] Gerlis, Judge S., “Surfing judges” (1996) NLJ 545.
[39] http://www.austlii.edu.au/
[40] http://www.butterworths.com.au
[41] see http://www.law.cornell.edu to locate the Cornell Law Library.
[43] http://www.austlii.edu.au
[44] Financial Review, Monday 21 April 1997 at 4.
[45] Derkley, Karin, "Netting the Paper Deluge", (1997) Law Institute Journal, 8.
[46] See http://www.austlii.edu.au
[47] http://www.courtroom21.net
[48] http://www.gov.sg/judiciary/supremect/computerisation/index.html
[49] For further information on the virtual courtroom, see Bermant G., and Woods, Winton D., "Real Questions about the Virtual Courthouse", (1995) Trial 43.
[50] L. Guerke, “The Law Catches Up With a Time-Waster”, Business Review Weekly, 12 June 1995 at 95.
[51] Justice James Woods, “Royal Commission into the New South Wales Police Service: Use of Technology”, paper presented to the 15th AIJA Annual Conference, Wellington, New Zealand, September 1996 at 8-9.
[52] See J.N. Kirkendall, “Where Judges Fit into the Electronic Future”, (1996) 35(1) Judges Journal, 35 at 37.
[53] Brisson., D., “Criminal justice network lets courts share vital case data”, (1991) Today’s Office 40.
[54] For more information concerning email, see Morris, A.J.H., "Why Lawyers need e-mail", (1996) Queensland Law Society Journal 95.
[56] s.95(2) Evidence Act 1977 (Qld).
[57] s.95(7) Evidence Act 1977 (Qld).
[58] Comments are to be directed to The Secretary, Queensland Law Reform Commission, PO Box 312, Roma Street Qld 4003; telephone: (07) 3247 9045; email: law_reform_commission@jag.qld.gov.au
[59] s.560(2) Criminal Code provides that the indictment is to be signed by a Crown Law Officer or some other person appointed in that behalf by the Governor in Council..
[60] O87r10 Rules Supreme Court.
[61] See Fifth Annual Report of the Court of Appeal (Qld) at 12.
[62] Ed. Note, “Court Reform Watch”, (1994) 78(3) Judicature, at 158.
[63] D. Venables "QuickCourt of Arizona - Just a Gimmick or a View of the Future?", Feb/Mar 1995 Computers and the Law, at 10-11; see also E. Predavec, "The Automatic Justice Machine?", Dec 94/Jan 95 Computers and the Law, at 18-19 and B. McConnell, "Speedy Justice", (1995) New Law Journal 126.
[64] T. Michaelson-Yeates, “Self-Service Court Kiosks Hit the UK”, Dec 94/Jan 95 Computers and the Law, at 17-18.
[65] http://www.gov.sg/judiciary/supremect/computerisation/index.html
[66] In particular, s.11 Freedom of Information Act 1982 (Cth) and s.21 Freedom of Information Act 1992 (Qld).
[67] s.41(1) Freedom of Information Act 1982 (Cth) and s.44(1) Freedom of Information Act 1992 (Qld).
[68] s.7(1) Privacy Act 1988 (Cth).
[69] AustLII’s privacy policy can be found at http://www.austlii.edu.au/austlii/privacy.html
[70] See http://www2.austlii.edu.au/~graham/family_court/faminfo.html
[71] Nixon v Warner Communications [1978] USSC 59; 435 US 589 (1978).
[72] For more information on robots, see http://info.webcrawler.com/mak/projects/robots/norobots.html
[73] See, for example, comments by Justice Bruce in "Judgments on the Net", Financial Review, 27 October 1995 at 16 concerning the Law Foundation of NSW's website (http://www.fl.asn.au). Justice Bruce said that the ultimate goal was to make "all the law freely available to everyone".
[74] Greenleaf, G.W., Mowbray, A.S., Lewis, D.P., "AustLII - Technology and politics of law on the net", paper presented to 1996 Australasian Legal Education Forum, Macquarie University, 5-6 July 1996 at 8.
[75] Perritt, H.H. Jnr., “Legal Publishing on the Internet”, (1996) 8 (4) Court Technology Bulletin 3.
[76] Such as courts, legislatures and Royal Commissions, and law reform commissions.
[77] see Perritt, H.H. Jnr., "Legal Publishing on the Internet", (1996) 8 (4) Court Technology Bulletin 3 at 4.
[78] The US Congress recently enacted legislation prohibiting all federal agencies "from charging prices for information which exceed the cost of dissemination. Government royalties or fees on the redissemination of information are prohibited. Agencies are also required to disseminate underlying records of information products, and prohibited from entering into exclusive distribution arrangements that interfere with "timely and equitable availability of public information to the public" (Love 1995b).
[79] Fourth Annual Report of the Court of Appeal (Qld) at 140.
[80] Greenleaf, G.W., Mowbray, A.S., Lewis, D.P., “Australasian Computerised Legal Information Handbook”, Butterworths, 1988 at 33.
[81] For example, law in the US is in the public domain: see Koslov, Marcia J., "Citations in Cyberspace: The Universal Citation System", Fifth National Court Technology Conference (CTC5), National Centre for State Courts, September 1997.
[82] Bannon QC, “Copyright in reasons for judgment and law reporting” (1992) 56 ALJ 59.
[83] per Willes J in Millar v Taylor (1769) 4 Burrows 2303 at 2329; [1769] EngR 44; 98 ER 201 at 208.
[84] Supra n 82.
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