A Judicial Perspective on Public Access to
Case Law on the Internet

His Honour David J. Harvey
District Court Judge
Otahuhu, New Zealand
[email protected]

Delivered at the 2nd AustLII Conference on addendum of subsequent developments.

Contents Abstract 1. Information Technology in New Zealand 2. New Zealand Legal Research Resources and the Internet 3. Steps that have been taken by the Judiciary in Moving into the IT Environment and Preparing for the IT World   3.1 Bench Books & Jury Trial  Directions 3.2 Sentencing Information 3.3 Decision Preparation & the Judicial Workstation 3.4 The Future View - On-Line Availability & the Internet   3.4.1 Internet Access to New Zealand Judgements 4. A Summary of Steps that have been taken to make New Zealand Resources Available on the Internet 5. A Possible Future or Futures   Download

Abstract

In this paper I wish to attempt to cover a number of issues:

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This is a Conference Paper published on 29 October 1999.

Citation: Harvey D, 'A Judicial Perspective on Public Access to Case Law on the Internet', Conference Paper, 1999 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/99-3/harvey1.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1999_3/austlii/harvey1/>

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1. Information Technology in New Zealand

If one were to read New Zealand's largest circulation daily newspaper, the New Zealand Herald , one would be justified in wondering whether or not there was a large information technology community in New Zealand. The reason that I say that is that the coverage of information technology in the New Zealand Herald is parlous and is restricted to two, and rarely, three pages in the Business Section of Tuesday morning's edition. My experience of other daily newspapers in New Zealand is similar.

There are a number of computer and information technology publications by way of newspapers and magazines in New Zealand the most notable of which is Infotech Weekly which arrives on my doorstep of a Sunday morning as a supplement to my Sunday newspaper.

I compared this coverage with newspaper coverage in Melbourne when I was in that city in March of last year for the Technology for Justice Conference run by the Australasian Institute for Judicial Administration. Whilst in the USA in December, I noticed a daily column on information technology matters in a small local newspaper in Florida known as the Orlando Sentinel . I realised that although our daily newspaper coverage of IT matters is parlous indeed, it does not in fact reflect the true situation.

New Zealand has a high level of computer owners. When one considers the prices for an average PC it is surprising that ownership is so high but there it is. There is no doubt that New Zealanders have embraced the new technology. In addition, there is no doubt that New Zealanders are getting on line. In fact it is my very clear impression that New Zealanders have embraced the Internet and that will continue.

My own son at the age of 11 (two years ago) was a librarian at his primary school . He and other librarians spent a sleepover weekend at school learning how to use the Internet and in particular how to search the Internet so that they as librarians could provide information for students who had queries. At his secondary school, King's College , there is installed at the school one of the most sophisticated school networks in the country. In a building programme upon which the school embarked in the mid-1990s many of the buildings were future-proofed and had fibre-optic cabling installed. It is a requirement for the students in the sixth form to own a laptop computer. Students are introduced to computer skills as part of their daily routine from the third form onwards. Access to the Internet is enjoyed by all the staff who have E-mail (a great way for parents to communicate with staff) and the students have access to the Internet themselves.

On the down side his school had its first experience of a hacker in early April of this year. The hacker was a student of the school and destroyed a large number of files which, fortunately, could be replaced. The school has now had to address such issues as how it will deal with students who hack the school system and spot check for hacking and cracking programmes on student computers.

Recently it was announced that some 200 schools in New Zealand will be going online within the next month.

There is no doubt that the Internet is seen as a vital educational resource. A disturbing feature however of access to Internet resources in New Zealand is the 'user pays' approach. Many may say that this is consistent with New Zealand's economic direction over the last 15 years. Such a point of view demonstrates a first, a lack of knowledge of the nature of the economic reforms that have taken place in New and second, a philosophical difficulty on the part of the supplier of educational or 'knowledge-based' information on the Internet, which in my view should be an open, free and accessible information base.

My daughter, a teacher, experienced extreme frustration in finding references to educational resources and ideas which would be of assistance to her in the classroom only to find that a substantial subscriber fee was payable. Similarly, a large knowledge information base contained by the Knowledge Basket has free access to information in some respects but requires registration for access to archives and what they describe as knowledge agents.

The National Business Review provided a tantalising service in that some of its content was free but one had to subscribe to obtain other information. It was announced late in May that NBR was going off-line on the basis that the returns were not satisfactory. NBR had been warned. As Chris Barton reported in an article about NBR publisher Barry Colman;

Contrast this with online newspapers from overseas, such as The Daily Telegraph , The Australian Online and The Times (London), all of which are free, and one begins to ask why this is not so in New Zealand. Admittedly, the New Zealand Herald does have a site but regrettably the content is truncated. This is not to say that there is not a lot of free information accessible to all from New Zealand's sites on the Internet but important material – that which one is used to being able to obtain without charge from overseas sites – is frequently, if available, available only for a fee.

2. New Zealand Legal Research Resources and the Internet

The 'user pays' or 'fee based' mentality applies to legal research resources available on the Internet in New Zealand.

Before the Internet was widespread, and I am thinking back to 1993, an on-line resource was available through the National Library called 'Kiwinet'. This was a subscriber-based service that operated with an extremely clumsy search engine and was difficult if not impossible to use. I attempted to use it to obtain information on the legislation and rapidly gave up after finding that it was quicker to search the paper volumes. Similarly, LINX the Legal Information Service and its close relation Briefcase are available to subscribers, again through the Knowledge Basket. Status Publishing makes its value-added materials available on the Internet, again for a fee. In a commendable but somewhat half-hearted effort the publishing company, Brooker's, have made Court of Appeal decisions available on the Internet for free but these have little value added and are accessible by means of a somewhat clumsy search engine.

This is not to say that there is no freely available information on the Internet. The universities have been helpful in this regard and many of the law firms, as part of their promotional activities, make legal information available on the Internet through their home pages. Decisions of some of the statutory tribunals are also available. The Waitangi Tribunal Reports , for example, are available from the Knowledge Basket ; the Environment Court decisions are available from a private site (http://tipnet.taranaki.ac.nz/EnvCourt/court.htm); Commerce Commission decisions are available; and New Zealand Refugee Law is made available.

The University of Waikato has a site which tries to make decisions available in a somewhat limited sense containing references to the Accident Compensation Appeal Authority, Broadcasting Standards Authority, Casino Control Authority, Civil Aviation Authority, Customs Appeal Authority, Environmental Risk Management Authority, IRMA New Zealand, Legal Aid Review Authority, Liquor Licensing Authority, Pharmacy Authority, Police Complaints Authority, Refuge Status Appeal Authority, Social Security Appeal Authority, Taxation Review Authority and Wild Animal Recovery Service Appeal Authority, but in many cases the references to available decisions generally direct the enquirer towards paper based databases.

That site also has references to Commerce Commission decisions, Commissioner for Children, Commissioner for Patents Trademarks & Designs, Health & Disability Commissioner, Human Rights Commissioner, Parliamentary Commissioner for the Environment, Privacy Commissioner, and Race Relations Conciliator. There is a directory of decisions for the various Ombudsmen, namely Parliamentary Ombudsman, Banking Ombudsman, Insurance Ombudsman and Savings Ombudsman.

The Waikato site is a valiant but, dare I say, frustrated effort, following upon the now defunct Legal Institute of New Zealand (LIINZ) to emulate AUSTLII in establishing a New Zealand database.

Whilst there may appear to be a reasonable amount of New Zealand legal information available on the Internet, the impression is illusory. Even the freely available New Zealand Statutes available from Government Print require the researcher to painstakingly review every piece of amending legislation simply because the principal legislation is not annotated or updated even with hypertext Linx as that legislation is amended.

One wonders if it is all too hard. One wonders if it is all too expensive. One wonders if there is any sensation at all to the fact that the law is not a commodity but is the foundation stone upon which our society rests. The adage 'ignorance of the law is no excuse' is frequently delivered but the concomitant responsibility to ensure that access to legal information is readily and freely available seems to have been given no credit whatsoever.

Admittedly there are small pockets of legal information available in public libraries but the Internet represents, in my view, one of the greatest revolutions in communication since Gutenberg invented the printing press in that it allows one base source of information to be accessed by thousands, if not millions, of people from remote locations all over the world.

It may be suggested that access to the Internet is a privilege reserved only to computer owners. I dispute that. As I have suggested earlier in this paper, schools are rapidly becoming networked. Senior primary school students and intermediate students are being taught how to conduct searches on the Internet from their school libraries. Public libraries have computers connected either to the central-base library or to the Internet where members of the public may freely conduct internet searches. Libraries are no longer seen as repositories for books but as the jumping off place in the search for information. Whilst the United States, Canada and Australia forge ahead in the provision of more and even more legal information resources, New Zealand stands still. Even the United Kingdom, which has been a slow starter in the field of information technology and the provision of legal resources on the Internet, has now moved ahead vigorously to the extent that now, as everyone knows, House of Lords and Privy Council decisions are freely available and, indeed, available in a timely manner from decision date.

3. The Steps that have been taken by the Judiciary in Moving into the IT Environment and Preparing for the Information Technology World.

In 1990 a group of New Zealand Judges in both the High Court and the District Court discussed the possibility of using computers to assist in their Judicial work. They identified the following areas where computers could assist in Judicial activity:

It is probably pertinent to point out that the New Zealand Court system from a Judicial perspective was and still is largely a manual system with a few exceptions. The record of evidence is typed on a word processor in the High Court and in District Court cases of longer than a day's hearing time. The MSR CAT system of evidence recording, formerly largely absent, is now gradually being employed along with other alternatives such as digital audio recording. Generally, in the District Court the Judge keeps a hand-written record of his or her own notes. Decisions and dispositions are similarly recorded by and entered onto a computer by the administration. Evidence of witnesses of hearings of a day or less is recorded on tape. It was recognised by the then Justice Department that was charged with providing services to the Courts, that the broader implications of information technology would have to be addressed. Part of that would involve providing computers and computer services for the Judiciary. Thus, an approach by the Judiciary was welcomed and timely.

Since 1990 computers have been supplied to all those members of the New Zealand Judiciary who want them. At the moment the machines used are Compaq Amada 1592 notebooks with a 4-gigabyte hard drive, a colour screen, Windows 95 and Microsoft Office together with modem and networked connections. Local area networks (LANs) are set up in all of the main Courthouses and all Courts are linked to the various local area networks through a wider area network (WAN). Judges can access the networks either from Chambers, from remote locations via the Network, or by a dial-up virtual private networking. All Judges have Intranet E-mail service together with the capability of having Internet E-mail as well. By the end of July 1999 it is anticipated that all Judges will have access to the World Wide Web. A system is now in place whereby a computer is supplied to a new appointee to the Bench if she or he wants one.

3.1 Bench Books and Jury Trial Directions

When a Judge receives his or her computer in addition to the standard software provided a number of special items are made available. Bench Books and standard Jury Trial Directions (Charges) are basic items and are provided as 'read only' word processing documents. If a Judge wants to customise a direction he or she may do a copy and paste operation and may maintain a library of personalised directions.

3.2 Sentencing Information

An Electronic Sentencing Digest is provided. This is maintained in Folio Views format and contains representative sentences for most offences including a Digest of the Facts and Matters taken into account by the Judge. Thus when a Judge consults the digest he(she) can set parameters on the search. The savings that have been made in providing the Sentencing Digest in electronic format has had the result that funds have been freed up for the development of a penalty guide which is now available. This provides, electronically, information on the penalties that may be imposed for all crimes and other offences set out in statutes and regulations in New Zealand. The sentencing information that is provided is a step on the way to providing a sentencing database which (it is hoped) will provide statistical information on sentences imposed for various offences, factoring in various parameters for aggravation or mitigation. Although it was hoped that this system could be developed as a result of a major modernisation programme in the Department for Courts it is still some time away.

3.3 Decision Preparation and the Judicial Workstation

At the moment Judges of the High Court have their own Associates who attend to various aspects of the Judge's work including typing. In the District Court typing services are provided by Secretaries or from the typing pool in smaller Court locations. The provision of computers with a word processing programme envisaged a quicker production of decisions by allowing Judges to edit their own work on computer rather than returning hand-written amendments to hard copy to the typist or Associate and having the whole decision retyped and sent back. Nevertheless, a number of Judges do in fact type their own decisions. They have the advantage of advanced keyboard skills which is not attributed to, nor sought, from all the Judiciary.

The preparation of decisions has been facilitated by a suite of word processing utilities which together with the database library of a Judge's decisions form what we have named the Judicial Workstation or JWS.

The suite of utilities comprise a number of documents that can assist the preparation of a decision:

The research capabilities of the computer have long been attractive to the Judiciary. Access to such databases as Lexus is out of the question on the basis of cost but there are number of other research facilities that are available and that have been trialed. Judges now have available as a result of the local area network three search databases known as Briefcase and Linx together with copies of Electronic Texts. As I have already indicated, Internet access is being made available to the Judiciary and their research assistants.

3.4 The Future View – On-Line Availablity and the Internet

Judges in New Zealand are coming to grips with the expanding Information Technology. The benefits of having legal information on-line are becoming understood and appreciated. There is no doubt that the Judiciary seek access to electronic legal information in the widest sense of the word to supplement the paper-based systems that are in place. Judges are becoming aware of the advantages of a centrally based electronic system to which many users can have access at one time.

A full sentencing information system is considered a priority as is access to decisions of the New Zealand Courts in electronic form. Certainly, there is considerable pressure from the legal community for the latter.

Many Judges look forward to the day when comprehensive electronic access to judgements of the New Zealand Courts is available. The delivery system is perceived as being the network that has been set up by the Department for Courts. The Judicial Workstation will play an important part in this process.

The new version of the Judicial Workstation can be used in two ways. It can be operated as a stand-alone programme from the Judge's computer unconnected to the network or it can be operated from the network. Indeed, workspaces may be kept on a central network server. When a case is concluded and the decision delivered the decision then has the capability of being filed on the central database. This effectively will be a central collection facility for all decisions coming from the New Zealand Courts.

All decisions from the Court of Appeal will be collected, together with decisions nominated by Judges of the High Court and those decisions from District Court which are recorded in writing. It should be remembered that oral decisions of a District Court Judge are only reduced to writing – that is in electronic form – if there is an appeal or if the Judge specifically directs. Only reserved decisions are recorded in electronic form as a matter of course.

Thus the facility exists for the collection of judgements of the New Zealand Courts.

The plan is that those decisions will be collected, indexed and made available to the Judges through the Judgements Database, part of a project created by the Department for Courts called the Electronic Libraries Project . Judges in theory will be able to conduct searches of the database for precedent decisions to assist them in their work.

With the exception of the Court of Appeal, whose decisions have been collected electronically for some years, the judgements of other Courts have not been collected into a central registry or database. Not all judgements are available electronically. This poses an immediate historical problem for the provision of judgements electronically, in that 'Year Zero' will be the date when the collection process starts.

Furthermore, the integrity of the database will only be as good as the willingness of all members of the Judiciary or their staff to contribute to it. The process is going to require a change of culture. In the past Judges of the High Court and the District Court have made the decision whether or not a judgement should be reported. In essence, electronic collection of judgements in a database will mean potentially that all decisions could be available. There will still be a judicially assigned prioritisation for reporting purposes. The major change will be that all judgements will be collected in one place rather than scattered, un-indexed or catalogued, through all the Court Registries throughout the country.

It is perhaps regrettable that those who are responsible for providing the funding to the Department for Courts for its modernisation project did not see access to electronic resources as a high priority. Out of the total 'pot' that has been made available only a fraction of that which is required to set up a sentencing information system and an electronic library is available. Consequently the Department for Courts are considering joint venture projects with outside providers. In any of those projects of course the Judiciary will have an important say. There is no point, and it is recognised, in foisting upon the Judiciary that which they cannot use or which they do not want.

3.4.1 Internet Access to New Zealand Judgements

The issue of access to New Zealand decisions on the Internet is not a high priority for the Judiciary, and one that introduces a number of problems and issues, among them matters of privacy, compliance with suppression orders, selection of judgements and the like. At the moment the decisions of the New Zealand Court of Appeal are available in electronic form, and indeed are available electronically from commercial publishers using the Folio Infobase system. From a practical point of view, there is no reason why these decisions could not be made available on the Internet. The theory and the philosophy behind public access to law are accepted. Putting it into practice is another matter. In the meantime for the on-line public and the world-wide internet community, the decisions of the Courts languish in electronic limbo.

With the advent of Internet and Web access, overseas legal resources will be available to the Judiciary. I have no doubt that the advantages of on-line legal research will swiftly become apparent to the Judges. In considering access to on-line research resources there is no doubt that Judges will have the following issues in mind:

• How useful is the information
   
• How easy is it to access the information
   
  • Is the site clear and easy to navigate
  • Is the database quick and easy to access
     
• How accurate or reliable is the search engine
   
• How reliable is the on-line facility
   
  • Is the connection speed good
  • How reliable is the connection – will the site be available as and when required
  • What sort of download speeds does the site offer
     
• How readable is the on-screen information
   
• What 'added value' does the site have by way of, for example, footnoting, indexing, links to legislation, to other cases and to other jurisdictions

Internet resources will be compared to the Electronic Libraries system that will be available to the Judges and the matters to which I have referred above that will need to be addressed if New Zealand judgements are made available on the Internet or indeed by way of any on-line system, for they are concerns for all legal professionals.

4. A Summary of Steps that have been taken to make New Zealand Resources Available on the Internet

At the moment no steps have been taken by the Department for Courts to make New Zealand resources available on the Internet. An effort was made in 1996 to do this which has been covered by Mr Perry in paper Roadblocks to LIINZ – Problems facing public access to New Zealand's laws . The difficulties which were seen at that time were funding and copyright issues.

Mr Perry in his article identified the obstacles to obtaining free on-line access to legal materials. He said:

It is perhaps encouraging to observe that in the three years that have passed since 1996 when the meeting referred to by Mr Perry took place, and which I attended, there has been a recognition by the Department for Courts that there is a public interest in making legal information such as statutes and the decisions of the Court available to the public for free.

The main opposition to such a proposition would probably come from law publishers. After all, the publishers take the raw material by way of judgements, add considerable value to the product and charge for it accordingly. Their position in the marketplace will, in my opinion, remain unaffected for the time being. Their value added products will still be in demand by those who appear before the Courts and who rely upon reported material. Until the Courts themselves make some direction about 'authoritative sources' I perceive that the reports that are published under the auspices of the New Zealand Council of Law Reporting will continue to remain authoritative for the Courts.

What is authoritative for the Courts and what members of the public may require to satisfy their own curiosity or require for their own information may be quite different. In this respect the Internet provides a revolutionary opportunity for the public to have access not only to the decisions of the Courts but also to legislation.

In 1998 submissions were sought from the Office of Parliamentary Counsel for information or suggestions regarding access to Parliamentary document, such as Bills and Acts of Parliament, in an electronic format. A discussion paper entitled Public Access to Legislation was circulated. I understand that the content of submission is now being dealt with by the Parliamentary Counsel's Office.

Apart from isolated instances of tribunals who have made available some materials on the Internet there has been little official activity in this regard.

The initiatives that were launched by LIINZ in 1996 have foundered and indeed their site on the Internet no longer exists, it having been subsumed into the wider Waikato School of Law Library Site.

As may be expected, many law firms have an Internet presence with links to useful sites but, of course, with a lack of sites for the raw data of legal resources – legislation and case law – they can add nothing but merely replicate existing resources mainly from overseas.

Although there is a recognition that there should be free public access to legal resources on the Internet the will to achieve such a goal and the desire and initiative to make it happen seem to be lacking. Any initiatives by the legal fraternity are more directed towards making that information available for members of the legal profession rather than for any public access. Although Brooker's, a prominent law publisher, have made the Court of Appeal judgements available on the Internet one cannot criticise law publishers for wanting to add value and make money – it is after all their raison d'etre . They cannot be expected to provide a pro bono service which should in fact be provided by the Government.

I was involved with the LIINZ initiative and since that time have argued frequently for consideration to be given to the means by which the decisions of the New Zealand Courts may be put upon The Net. I do not wish to be seen to be critical of the Department for Courts for there is a recognition within that organisation that this should and must happen but it is rather low on the list of priorities. It has been suggested that an external provider could make this information available and I see no reason why the Australasian Legal Information Institute could not be considered among such providers. In such case it would truly become an Australasian information base.

5. A Possible Future or Futures

Jane Treadwell entitles her paper The Curious Case of New Zealand , a sentiment that I echo, although as at the time of writing I have not read her paper. I do not believe that the future of Internet-based legal information will be tied to the undeserved reputation that New Zealand has for overdoing it in the free market environment. I do believe that legal information will be made available on the Internet for free but I cannot determine the timeframe. Many Government departments and Government agencies have an Internet presence. Some sites are more sophisticated than others and one only has to examine the site of the Minister for Information Technology, the Honourable Maurice Williamson , to see how the use of the Internet has been embraced by at least one member of the Executive.

The Department for Courts too maintains its site but in my view it has not been developed to its full potential. However, plans are being made to present a more meaningful website.

An examination of the past probably will give us a fair but rather gloomy and depressing view of the future. Regrettably, although I am confident that legal resources will become available on the Internet, progress in this area from New Zealand will be slow. As far as decisions of the Courts are concerned, it is almost inevitable that the issue of Crown copyright will provide a reason for delay although the matter could be swiftly circumvented. As yet, the Governor-General has not signed the Order in Council. I am not in any position to comment upon the progress of getting Acts of Parliament or Bills before the House available on the Internet but one of the encouraging aspects of the approach by Parliamentary Counsel is that it was in fact made. It would seem that making the decisions of the Courts available on the Internet is something upon which everybody can agree over a committee meeting table, a glass of wine at a reception, or a pleasant meal at a restaurant or at a conference venue. Making it happen is an entirely different matter.