CYBER COURTS: USING THE INTERNET TO ASSIST COURT PROCESSES
Queensland Law Foundation Technology Services Pty Ltd
135 Wickham Tce, Brisbane 4000 Australia
Abstract
Paper presented to WWW7, April 1998
As the business world increasingly recognises the Internet as a place where commercial dealings can take place, the legal system will need to be equipped to not only understand the Internet, but use it as a tool to successfully exchange, and use, information. This paper investigates the ways in which the Internet can be, and has been, used throughout the court system and how technology can improve a legal system which is increasingly overburdened. Initiatives such as electronic filing and legal research will be discussed.
Keywords: Courts, efiling, legal process, research
Introduction
"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 requires 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.
The reason courts should embrace technology lies in constantly increasing caseloads, complexity of cases, 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 or staff[2] to counteract the problems[3]. Data should be entered only once into a system, and this accords with the notion of integrated justice[4].
The areas to be considered in addressing how courts should take these problems are:
Security Electronic appeals and electronic filing Legal research
Standards Inside the courtroom Judicial education
Legislative Changes Public examination of court information Privacy
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 and electronic appeal books
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.
Electronic filing
To use the comments of David J. Egar (Court Administrator Snake River Basin Adjudication District Court Twin Falls where a electronic filing project was carried out) 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[5] 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."[6]
An electronic filing pilot 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 in the Court of Appeal Case Management System (CAMS).
One of the main benefits of this pilot project is that the 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[7], and in Maricopa County (Phoenix, Arizona), where court forms can be downloaded from an electronic bulletin board[8], completed, and filed electronically[9]. Electronic filing is also being trialled in the Maryland Circuit Court[10] and similar procedures are underway federally[11].
The Victorian Magistrates Court permits electronic filing of documents[12] using what’s 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[13] and the High Court at one time considered electronic filing over the Internet[14].
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[15]. If electronic filing is be implemented as common practice, the Legislature, or the Court, would be required to amend rules governing procedure. 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, in Utah[16]. 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[17]. 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 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 to develop 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)[18] to "identify and, where necessary, propose remedies to any legal impediments to the adoption of electronic commerce". One of the challenges is digital signatures.
There are those who argue against the implementation of electronic filing, saying that "electronic documents are easily changed", however, with digital signatures, legal documents can actually be made more secure than hard copy as the document is encrypted or "locked" and if it changes in any way, it cannot be unlocked. Another argument against efiling is that "hackers can submit documents for filing", however, in the present system, it is difficult to check the authenticity of the signature on a hard copy. A further argument is that "unrepresented litigants and those with limited financial resources cannot file documents electronically", however, these litigants can still file documents in hard copy and these can be scanned into the system[19].
Electronic Appeal Books
The Council of Chief Justice (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[20]. 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[21], the consultant will be focussing on a cost benefit analysis, standards, the "Virtual Appeal Book" and the 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 "Appeal Book" be a "toolkit" for judges to use, so 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[22]. 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 struck 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 soon be an upgrade in software when the electronic services available to the judiciary is enhanced. In addition, the Court is looking to strike 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 courtroom or their home.
The pilot 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[23]. 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 are considering these issues.
Medium neutral citations
Use of medium neutral citations, means that documents can be viewed using any medium, for example, a word processor, on the Internet or even using 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[24].
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[25]. 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[26]. Since then, some courts, such as the Montana Supreme Court[27], have adopted the medium neutral citation format, however, the ABA's recommendation has not been widely implemented[28].
Standards for source documents
One way to introduce standards is to embrace the use of metadata[29]. Metatags can be embedded in a document which will "tag" certain pieces of information and in legal documents, this could be information such as the judges 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.
Legal research material for the judiciary
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".[30]
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[31] 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 "on-line" update. For this reason, the way of the future seems to be towards on-line facilities, such as the Internet, or even intranets.
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, and which provides electronic access to legislative reprints[32].
Sentencing Databases
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, is more user-friendly, has sophisticated search capabilities and is provided over a secure intranet[33].
Internal databases
Many courts have a database of its delivered judgments, particularly Court of Appeal or Full Court judgments. The judges and their Associates can access the database from their desktop[34]. Such databases are important to ensure that a particular Court is aware of its own judgments and to that ensure consistent decisions are made.
Internet
Finally, the Internet contains a wealth of on-line legal research material[35], and some judges already use the Internet for legal research purposes[36]. The Australasian Legal Information Institute’s (AustLII) site[37] provides a well-indexed site with links to other legal research sites throughout the world. Additionally, publishers such as Butterworths[38], 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 ensuring a duplicate copy of a Court's database and that the Internet server is regularly updated, via a one-way modem link, from the duplicate database.
There is also a general mistrust of the Internet and the perception that material on the Internet can be sabotaged. One remedy may be to store a replica of the database which is kept secure and which updates the web server at regular intervals. However, 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[39], can email an article within a matter of hours.
Initiatives
Recently, Australia's first accredited and totally electronic law journal was launched: National Law Review[40]. Numerous other electronic journals can be located on the AustLII site[41].
Generally
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.
Litigation Support
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 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 external to the courtroom.
Such litigation support systems enable delivery through an on-line system which can be constantly and dynamically updated throughout the proceedings (eg. intranet technology). There is real integration of documents tendered as evidence, court filed documents, real time transcript (RTT) and legal authorities and the system can be delivered with powerful search engine facilities. Also, the system can be delivered over a secure communications infrastructure and can be available from within and external to the courtroom.
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."[42]
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[43]
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 the evidence was taken and all the documents were accessible via the intranet.
Transcript
Unlike traditional transcript, 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[44].
Virtual courtrooms
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[45].
The Singapore Supreme Court has successfully set up a virtual courtroom known as "The Technology Court"[46], some of the features of which include:
Essentially, the feature of a virtual courtroom is that a decision can be made without ever having to set foot inside a courtroom[47].
Orders being produced electronically from the courtroom
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[48]:
"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.
Judgments being prepared electronically in the first instance
Some members of the judiciary revise transcript on disk and also prepare their draft judgments using materials which are electronically available.
Exhibits etc being produced at trial electronically
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[49]. 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.
Courts being able to electronically exchange information
It is important that the judiciary be able to communicate with one another on a confidential bases. There are already a number of electronic bulletin boards in the USA. In particular, Michigan has the "Great Lakes Free Net: Judges Forum"[50] 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[51]. 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 colleagues 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[52].
In the United States, 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[53].
The Council of Chief Justices Working Party on Electronic Appeals also recognises that judicial education is an important part of enabling judge’s to use computers and to highlight the benefits of using technology.
At present, the Evidence Act 1977 (Qld) and the Evidence Act 1995 (Cth) provide for proof of documents on computer or disk. Statements can be admissible provided certain conditions are met[54] and a definition of a computer is given[55].
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[56].
Amendments are also needed in legislation (eg O 9 r 5 Criminal Practice Rules 1900) in order to enable documents to be "signed" electronically. This would equally apply to indictments[57] and the meaning of "signing" documents such as writs[58] 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.
The public being able to examine and prepare court documents electronically
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 Court of Appeal (Qld) spends much of its time answering queries in relation to the status of appeals. The Court of Appeal database could be made publicly available to the public at the Supreme Court's web-site[59].
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)[60]. 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[61]. Similar "kiosks" have been developed in the UK[62] and in Singapore[63].
The issues
There is the right of the public to obtain court information which conflicts with the right of individuals to maintain and protect their privacy. In addition, privacy issues must be considered under statute and at common law.
Privacy issues under statute
The right of the public to obtain information held by government bodies is given by the Freedom of Information legislation[64], although there are exemptions available for documents which contain personal information about a person[65].
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) 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)[66].
In May 1996 AustLII[67] was embroiled in a dispute where it was believed that it had committed invasions of privacy and possible breaches of s.221 Family Law Act 1975 (Cth)[68], 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 made a News Release which 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 did 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 anonymisation, in light of the different accessibility of materials via internet, as has been done by the Court in this instance. 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.
Privacy issues at Common Law
There is little common law governing privacy issues in Australia. In the United States, the US Supreme Court has recognised a general common law right to inspect and copy public documents and records of the judiciary[69]. 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.
Security
Because information contained in Court records may be exempt documents pursuant to the Freedom of Information legislation, or would fall within the Privacy Principles set out under the Privacy Act 1988 (Cth), the information, obviously, would need to be secure. There would be a need for procedures and policies to be put in place to preserve security. Also, guidelines would 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[70].
There is a view that judgments and legislation should be freely available[71]; 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."[72] This is consistent with the view that court systems should not set up public or private monopolies over their information resources[73].
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[74] should provide public legal information in accordance with five criteria[75]:
As the President of the Court of Appeal (Qld) has noted[76], 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 obtaining judgments to me made 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[77] note that Australia is the only country, to their knowledge, to claim that the output of Courts and Parliament alike is Crown copyright material[78]. 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[79]. 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 ... "[80]. Bannon QC suggests that the same argument would not apply today because judges are not employees of the Crown. 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.
Conclusion
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.
References
[1] McMillan, James E., "Toward the Electronic Court", (1995) Trial 19 at 24[2] Fourth Annual Report of the Court of Appeal (Qld) at 21, 109,
[3] Meador, Rosenberg and Carrington "Appellate Courts - Structures, Functions, Processes and Personnel", Contemporary Legal Education Series, Charlottesville, 1994 at 430-442
[4] Report of the Commission of the Future of the California Courts, "Justice in the Balance - 2020"
[5] http://ncsc.dni.us/ncsc/ctc4/articles/elec_c.htm
[6] Jacobius, A., "Two More Courts Add Electronic Filing", (1995) ABA Journal, 20
[7] Ed. Note, "Electronic Filing System Brings Order to Mountain of Documents", The Third Branch, February 1996
[8] http://www.maricopa.gov/supcrt/ssc/sscforms/geninfo.html
[9] Kirdendall, J.N., "Where Judges Fit into the Electronic Future", (1996) 35 (1) Judges Journal 35
[10] http://www.govtech.net/1995/gt/jul/dept/justice.htm
[11] 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
[12] Magistrates Court Civil Procedure Rules 1989 (Vic.), rr 1.20, 4.02.1-3
[13] AIJA, 1994 Case Management in the Higher Courts, p.68; The Bulletin 4 July 1995, 44
[15] eg O9 r5 of the Criminal Practice Rules 1900
[16] http://www.jmls.edu/cyber/statutes/udsa.html
[17] http://www.govtech.net:80/1996/gt/feb/digsigfeb/digsigfeb.htm
[18] http://law.gov.au/aghome/advisory/eceg/eceg.htm
[19] McMillan, James E., "Toward the Electronic Court", (1995) Trial 19
[20] 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
[21] http://www.austlii.edu.au or email the author: astanfield@themis.com.au for a copy of the Project Plan
[22] 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.
[23] 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/
[25] http://www.abanet.org/citation/resolution.html
[26] http://www.abanet.org/citation/history.html
[27] http://www.aallnet.org/press/press980106b.html
[28] Opinion by Jol Silversmith at http://www.collegehill.com./ilp-news/silversmith.html
[30] Professor dr. juris Joh Bing, Foreword, Greenleaf, G.W., Mowbray, A.S., Lewis, D.P., "Australasian Computerised Legal Information Handbook", Butterworths, 1988
[31] Woods, The Hon. Justice James, "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
[32] 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
[33] 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
[34] Fourth Annual Report of the Court of Appeal (Qld) at 17
[35] 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
[36] Gerlis, Judge S., "Surfing judges" (1996) NLJ 545
[37] http://www.austlii.edu.au/
[38] http://www.butterworths.com.au
[39] http://www.law.cornell.edu
[41] http://www.austlii.edu.au
[42] Financial Review, Monday 21 April 1997 at 4.
[43] Derkley, Karin, "Netting the Paper Deluge", (1997) Law Institute Journal, 8
[44] http://www.austlii.edu.au
[45] http://www.courtroom21.net
[46] http://www.gov.sg/judiciary/supremect/computerisation/index.html
[47] Bermant G., and Woods, Winton D., "Real Questions about the Virtual Courthouse", (1995) Trial 43
[48] Guerke, L., "The Law Catches Up With a Time-Waster", Business Review Weekly, 12 June 1995 at 95
[49] Woods, The Hon. Justice James, "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
[50] Kirkendall, J.N., "Where Judges Fit into the Electronic Future", (1996) 35(1) Judges Journal, 35 at 37
[51] Brisson., D., "Criminal justice network lets courts share vital case data", (1991) Today’s Office 40
[52] Morris, A.J.H., "Why Lawyers need e-mail", (1996) Queensland Law Society Journal 95
[54] s.95(2) Evidence Act 1977 (Qld)
[55] s.95(7) Evidence Act 1977 (Qld)
[56] law_reform_commission@jag.qld.gov.au
[57] s.560(2) Criminal Code (the indictment is to be signed by a Crown Law Officer or some other person appointed in that behalf by the Governor in Council)
[58] O87r10 Rules Supreme Court
[59] http://www.courts.qld.gov.au
[60] Ed. Note, "Court Reform Watch", (1994) 78(3) Judicature, at 158
[61] 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
[62] T. Michaelson-Yeates, "Self-Service Court Kiosks Hit the UK", Dec 94/Jan 95 Computers and the Law, at 17-18
[63] http://www.gov.sg/judiciary/supremect/computerisation/index.html
[64] s.11 Freedom of Information Act 1982 (Cth) and s.21 Freedom of Information Act 1992 (Qld)
[65] s.41(1) Freedom of Information Act 1982 (Cth) and s.44(1) Freedom of Information Act 1992 (Qld)
[66] s.7(1) Privacy Act 1988 (Cth)
[67] http://www.austlii.edu.au/austlii/privacy.html
[68] http://www2.austlii.edu.au/~graham/family_court/faminfo.html
[69] Nixon v Warner Communications 435 US 589 (1978)
[70] http://info.webcrawler.com/mak/projects/robots/norobots.html
[71] The Hon. Justice Bruce, "Judgments on the Net", Financial Review, 27 October 1995 at 16 concerning the Law Foundation of NSW's website (http://www.fl.asn.au).
[72] 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
[73] Perritt, H.H. Jnr., "Legal Publishing on the Internet", (1996) 8 (4) Court Technology Bulletin 3
[74] such as courts, legislatures and Royal Commissions, and law reform commissions
[75] Perritt, H.H. Jnr., "Legal Publishing on the Internet", (1996) 8 (4) Court Technology Bulletin 3 at 4
[76] Fourth Annual Report of the Court of Appeal (Qld) at 140
[77] Greenleaf, G.W., Mowbray, A.S., Lewis, D.P., "Australasian Computerised Legal Information Handbook", Butterworths, 1988 at 33
[78] Koslov, Marcia J., "Citations in Cyberspace: The Universal Citation System", Fifth National Court Technology Conference (CTC5), National Centre for State Courts, September 1997
[79] Bannon QC, "Copyright in reasons for judgment and law reporting" (1992) 56 ALJ 59
[80] Willes J in Millar v Taylor (1769) 4 Burrows 2303 at 2329; 98 ER 201 at 208
Vitae (as at April 1998)
Allison Stanfield*, Queensland Law Foundation Technology Services Pty Ltd
*Note: Allison Stanfield is now a Director of eLaw Australia Pty Ltd - http://www.elawaust.com.au
Allison Stanfield has been seconded to the Queensland Law Foundation Technology Services Pty Ltd (QLFTS) from the Court of Appeal, Supreme Court of Queensland, where she is the Senior Deputy Registrar (Appeals). Allison is a qualified solicitor with 7 years’ experience in the legal field, which includes having worked in London, with Corrs Chambers Westgarth and within the Court of Appeal. Whilst at the Court of Appeal, in addition to performing her duties as Senior Deputy Registrar, Allison was actively involved in the enhancement and further development of the Court’s case management system, and in the general management of the Court of Appeal’s information technology systems. Allison also gave IT advice to the Court’s President, Justice Tony Fitzgerald.
Allison holds Bachelor and Master degrees in Law from the Queensland University of Technology (QUT) and is currently undertaking a Master of Information Technology which will focus on Courts and Technology and on the Virtual Legal Office. Allison has taught for many years within QUT’s law faculty and has published widely in the legal field. More recently, however, Allison has confined her writing to the application of technology to legal procedures, particularly to courts.
During 1997, Allison co-ordinated an electronic filing initiative between the Court of Appeal and the Legal Aid Office (Qld). The initiative was supported and funded by QLFTS and was provided over the THEMIS service. The pilot has been a successful proof of concept.
As a member of an IT sub-committee of a Working Party set up to investigate Electronic Appeal Books on behalf of the Council of Chief Justices (CCJ), Allison has had input into the vision for the use of IT within Courts. QLFTS made a successful bid for a consultancy to the CCJ, and in her role with QLFTS, Allison is working closely on the CCJ project.
In recognition of her skills, Allison has recently been asked to advise the Australian Law Reform Commission on the use of information technology within courts.