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Jackson, Sheryl; Macdonald, Ros --- "Using the Internet to Assist Court Processes: Delivery of Justic" [2004] ALRCRefJl 27; (2004) 85 Australian Law Reform Commission Reform Journal 38


Reform Issue 85 Summer 2004/05

This article appeared on pages 38–43 & 60-61 of the original journal.

Using the Internet to assist court processes: Delivery of justice in an electronic age

By Sheryl Jackson and Ros Macdonald*

In recent years the courts in Australia and elsewhere have made rapid advances in using the Internet and the World Wide Web to conduct their activities and to deliver information.

This article presents an overview of two aspects of the role the Internet now plays in the court system—first, the extent to which judges, administrators and court officials at the different levels in the court hierarchy are using the Internet to deliver enhanced access to the Australian justice system for the community as a whole, and second, how they have embraced that same technology as an aid for accessing information for better judgment delivery and administration.

Delivery of court services over the Internet

Undeniably, a driving force behind the move to electronic delivery of information and services has been the exponential growth in Internet use by the community over the past few years. The latest available Australian Bureau of Statistics figures show that in 2000 33% of all computer users had Internet access. It was projected that every second household would have access to the Internet by the end of 2001. Because this growth has continued, it has become cost-effective for court systems to invest in the technology necessary to deliver the vision of an open access justice system for all.

Going online

Nearly all Australian courts now have an online presence. Making website information relevant, useful and easy to find is a primary goal for court administrators. Well-designed websites are a significant aid to the community’s access to justice.

Most of the court websites include information about court process, court forms, court lists, contact details and links to other resources. The websites of most state courts provide extensive ‘self-help’ guides designed to assist the public when taking legal action in the courts, some providing information about what to expect in court through the use of ‘virtual guides’ to the courtroom.

By making a wide range of information and services available over the Internet, courts are able to save and redirect valuable resources, which would otherwise be expended in providing the same services by more traditional means. The Family Court of Australia, for example, has a quite direct relationship with its clients because of the nature of its jurisdiction and it has continued to broaden the services it makes available across the Internet. There have been more than 1,500,000 ‘hits’ on its website in 2004. If it is assumed that each hit is a possible telephone enquiry, the potential for savings in administration is obvious.

E-filing

Traditionally, litigants or their representatives have been required to present themselves personally to court registries to institute proceedings but now e-filing, a procedure that does away with the necessity for personal attendance, is the most widespread interactive Internet-based activity in Australian courts. The Federal Court was one of the first courts in Australia to utilise an e-filing procedure and it now permits almost all forms to be lodged electronically. In the Victorian County Court 25% of all applications in its civil jurisdiction are filed electronically. The Magistrates Courts in Queensland and Victoria use the same system as the Victorian County Court, but other courts have developed their own variations on this theme. As an example, the electronic filing system for residential tenancy disputes developed by the Victorian Civil and Administrative Tribunal provides registered users, commonly landlords and tenants, with direct access to the Tribunal’s system over the Internet, and allows them to file applications, produce notices, lodge enquiries, pay fees, receive documents and monitor the status of their cases.

As a matter progresses to trial, the Internet can be accessed for other activities essential to litigants and lawyers. The New South Wales Land and Environment Court provides an e-Callover system to handle interlocutory processes (matters that take place before the trial itself, such as directions hearings). This system uses an Internet-accessed secure bulletin board and email. A similar system is used by some judges in the District Court of Queensland to manage various interlocutory proceedings there. Particular progress has been made in Australia in the development of electronic appeal books, a form of electronic filing in the appellate jurisdiction. Generally the required materials are prepared and stored electronically in the lower court and entered into separate electronic document management systems. This obviously involves inefficiencies, which will be overcome as electronic filing systems and electronic court facilities become more available, so that electronic appeals can then be automatically generated from the hearing in the lower court.

The introduction of case management, a system employed by most courts that allows the judge to actively manage a case from beginning to end, has been assisted in some courts by the implementation of case management technology. Some of the more advanced case management systems now accommodate electronic filing of court documents so as to integrate the registry, court schedule and electronic courtroom functions.

The advances in software and hardware that improve the delivery of justice to the community have led court administrators, the judiciary and the community to think about the consequences of easier electronic access to information. There is increasingly a tension between the provision of open justice and the protection of privacy. Traditionally, court processes have been open to the public and, except in very limited circumstances, reasons for decisions have also been publicly available. However, a certain practical obscurity has limited the potential for serious infringement of privacy and misuse of information which may result from a completely open system of justice. What this means in essence is that because one had to be present during a hearing, or identify and then approach the court registry to access paper copies of court documents or other required records, and often pay for the privilege, only those persons and organisations really interested in a particular matter ever accessed the information and looked at it in detail.

These practical difficulties are virtually eliminated when the material is placed on the Internet. It then becomes much more accessible to a wider range of people who may have different reasons for seeking the information and who may intend to use it in a way that compromises the privacy of the individuals referred to in it. Judgments may include a broad range of information about parties to proceedings, and even about witnesses who gave evidence in the proceedings. Judgments in personal injuries cases, for example, may disclose personal details including residential addresses, income and health issues. If the case has been uploaded to the Internet, anyone around the globe can successfully find it, by simply knowing one of the keywords, such as the name of one of the parties. This may have particularly disturbing privacy concerns for a person who is mentioned in a case, searchable on the web, but is not one of the parties. Complaints have been made to the courts by persons whose private affairs have been revealed without their consent in circumstances such as this.

The potential scale of the difficulty is apparent when some of the newer and more innovative technology used to assist the public to understand court process is considered. Already the Federal Court publishes videoed summaries of important Federal Court decisions to its website as soon as possible after being delivered, and transcripts of all High Court cases are posted to its website within a short time of hearing. The publication of transcripts of the hearings of several Royal Commissions, such as the Longford Royal Commission and the Metropolitan Ambulance Service Royal Commission, has enabled the public to follow the proceedings in this way. Technology has advanced to the extent that it is now possible, for example, to broadcast live sound and vision of court proceedings on the Internet so that it is theoretically possible for each court to become an electronic broadcaster of its own live proceedings. Some of the privacy concerns that arise in this context have been canvassed in the past in the context of debates about televising court proceedings, such as the implications of making the full evidence of victims of crime available on the Internet, and the possibilities of jury members accessing those parts of proceedings relating to rulings made in their absence.

Privacy considerations

The tensions between the accessibility of information on the Internet as part of an open court process and privacy and other considerations has been recently explored in a conference in Queensland convened by the Queensland University of Technology (QUT) and the Supreme Court of Queensland (‘Courts for the 21st Century: Public Access, Privacy and Security’, QUT, November 2003). A key focus was a consideration of the ways in which safeguards may be put in place to minimise intrusions into privacy that the new technology facilitates. Definitive answers cannot be given to many of the relevant issues and the topic will clearly be the subject of ongoing debate. One of the issues under active consideration in the Queensland Supreme Court is the extent to which it is essential or appropriate to include particular personal information in court judgments.

The use of court information by the media involves its own particular set of tensions. It is important to properly inform the public of court decisions and this is undoubtedly assisted if the relevant information is openly available to the media in electronic form. However, in this effort to improve media reporting of court proceedings to lessen the likelihood of incomplete or inaccurate reports, there is a risk that the ready accessibility of this information will also facilitate its use for some improper purpose.

In Tasmania, the judiciary was concerned that media headlines that focused on the leniency of sentences were undermining both the public confidence in court and the general deterrent effect of the sentences imposed. In 1999, in an attempt to ensure that the public was informed of the full reasons for sentencing, the Supreme Court developed a database of sentencing notes to be published on the Internet. The database includes the sentence imposed and full reasons for every sentence (edited to prevent disclosure of the identity of victims of sexual crimes and youth offenders). The information is generally placed on the Internet on the day of sentencing. When first introduced, the reasons were removed after 14 days, but this has now been extended to three months. After that time copies of sentencing decisions can be obtained from the Supreme Court library. The limitation on the period for which the decisions may be accessed over the Internet was intended to make it more difficult for people to build their own databases of sentences imposed by the court, for some improper purpose. Although it is accepted that the risk remains to some degree, it has been determined that the need to properly inform the public takes precedence over that level of risk. In the ACT a similar database was developed and has been available on the Supreme Court’s website since 2001. In that jurisdiction the reasons are removed from the site after 28 days. Again copies can be accessed after that time through the library.

The Queensland Supreme Court also has a sentencing notes database. Queensland has taken the view, however, that it is not in the public interest to make every sentencing decision available on the Internet. Instead, the Queensland Courts’ website publishes sentencing remarks in the Supreme and District Courts as selected by the judges. The database includes only those sentencing remarks that relate to cases that have attracted media interest, or those that involve new or interesting issues of law. The remarks are removed from the database after three months and can only be accessed after that time through the Supreme Court Library.

Electronic courts

The first purpose-built Australian integrated electronic courtroom, the <e-law> moot court, was built at the QUT Law School in 2001. Within it, all court papers and documents may be accessed using monitors at the bar table, the judge’s bench and in the jury box. Counsel and the judge have Internet access in court, and the potential exists for them to access the court files remotely over the Internet as well. Additionally, the courtroom is fitted with the latest digital audio and video software for real-time recording of proceedings. Four fixed cameras are used with this facility and the resulting day’s events can be watched in the courtroom itself, streamed over the Internet to remote viewers, or captured on a DVD and watched in the comfort of barristers’ or judges’ chambers. The digital files are also easily searchable. The courtroom also uses a digital document camera. The primary focus of this courtroom is that of a very advanced teaching tool but it is available for the hearing of judicial and quasi-judicial matters. There are a number of integrated electronic courtrooms in Australia now, the most recent being the courtroom built for the committal hearing in Darwin of the man who allegedly murdered British tourist Peter Falconio in July 2001.

While in some overseas jurisdictions technology has been embraced to the extent that the Internet has become a primary means of dispute resolution, in Australia the approach has been to adapt the use of technology in ways that extend or supplement the physical courtroom rather than replace it. An interesting example of the use of technology in this way is the practice in the Federal Court when conducting native title hearings in remote parts of Australia. The Internet and email are used in the conduct of directions hearings and the supervision of case preparation. The Court also uses sophisticated recording equipment to capture evidence that is heard in culturally appropriate ways. Evidence other than oral evidence, such as evidence in the form of dance ceremonies by Indigenous people, is also captured as needed. Transcripts of hearings can also be captured from remote locations and made available in the field. Internet and video technology is used in the delivery and distribution of decisions and in the communication of information about cases to the community in general.

Integrated justice systems

Attempts are being made in some jurisdictions to integrate the justice system so that information in electronic form is stored and transferred seamlessly between different agencies forming part of the criminal justice system: courts, police, prosecutions, justice departments and prisons. In Victoria, the Criminal Justice Enhancement Program has been undertaken by the Ministry of Justice. Data is entered only once but then flows across the sector, including the courts. Its components include electronic filing and electronic briefs. In NSW, the Courts Online Registry System (CORTS) implements new systems in the Supreme, District and Local Courts, as well as the Sheriff’s Office. It provides a common base of system software to all NSW courts, permitting the electronic exchange of information between each court, justice agencies, the legal profession and court users.

The Internet as a research tool

The Internet also has a valuable role in assisting the judiciary and others within the court system itself.

The Australian Legal Information Institute (AustLII) provides free Internet access to Australian legal materials, including legislation and decisions of courts and tribunals, and law reform and royal commission reports. This database has been regarded as a world leader, with Canadian, British, Irish and Pacific versions now available.

With the trend towards globalisation of legal information, a collaborative effort by a number of legal information institutes and law schools, including AustLII, has developed WorldLII, which endeavours to provide a free, independent and non-profit global legal research facility. It now includes more than 439 databases of case law, legislation, treaties, law reform reports, law journals, and other materials from jurisdictions in 55 countries.

Many secondary materials are also now available on the Internet. Publishers such as LexisNexis make subscription services available over the Internet, several law journals are now totally electronic, and many authors publish directly to the Internet without making their works available in hard copy.

These electronic resources are highly regarded research tools for the judiciary, their support staff and the court registry. They provide quick, reliable electronic access to legal research materials that are generally up-to-date. At one time the accessing of the information online could be difficult and time-consuming as each database was different and could require significant training or practice in its effective use. Increasingly, however, the various information sites have become more standardised and user-friendly. The Legal Information Standards Council produced best practice guidelines for legal Internet sites. There are 12 key guidelines, covering a wide range of matters including citations, linking, jurisdiction, currency of information, and a requirement that the site meets recognised usability and accessibility guidelines. The Australian Institute of Judicial Administration (AIJA) has also produced guidelines for the production of judgments, covering judgment formats, catchwords, pagination, medium neutral citations, and technical structure and document preparation.

In many jurisdictions intranet sites have also been developed for the courts. The systems available in the courts vary markedly in their levels of sophistication. At the most basic level they provide a range of documents in common usage on the network, access to the court’s own website and also access to online databases such as AustLII and WorldLII and other databases and legal indexes produced by third parties. Some, however, provide an extensive range of additional materials.

The Sentencing Information System (SIS) developed by the Judicial Commission of New South Wales is a computerised sentencing database regarded as a world leader in its field. It is an online source of primary, secondary and statistical reference material for judicial officers, the courts, the legal profession and government agencies that play a role in the justice system. It is clearly of great benefit to individual judicial officers to have fast and efficient access to up-to-date information about sentencing decisions, and helps to promote consistency in sentencing.

Another example is the electronic library developed by the Supreme Court Library of Queensland for the use of Queensland judges and their staff, known as the Judicial Virtual Library (JVL). The advantages of this service include its ability to deliver an integrated information service through a single desktop access point for the judiciary and its staff throughout Queensland, the provision of a secure environment for users to share internal documentation, and the opportunity for the library to publish information services that are specifically created for the judiciary in a web-based format. Information and services that can be accessed via the JVL include:

• online databases and indexes with complete legal libraries of major Australian legal publishers and full-text journals;

• useful information from the court and library website such as the conference calendar, an indexed portal to web resources, Queensland judgments, the library catalogue, and LawList; and

• information specifically produced for judges, such as an internal newsletter, book reviews, new acquisitions, and training manuals for electronic resources.

A similar system has been developed in Victoria, with shared electronic library facilities between the Supreme Court, the County Court and Magistrates Courts.

One of the limitations for the courts, as for all online researchers, is that any electronic library cannot be regarded as a ‘virtual’ alternative to the extensive paper-based collections held in libraries, as there is still a range of print resources, including valuable historical archives, which has not yet been replicated in online products.

It can now be generally accepted that access to Internet browsers is a basic necessity and that all participants in the judicial system from the Chief Justice to junior clerks must have access. There are, however, some practical limitations. One is that, although there are now several courts set up for the conduct of electronic trials, most courtrooms still do not provide for Internet access. Another is that, while it is fair to say that administrative staff within the court system are almost invariably comfortable and competent in the use of the technology, there is still a significant proportion of the judiciary who have not embraced and adapted to the use of web-based services. Over time, however, this difficulty is being overcome as the advantages become more obvious. Specific techniques which have been used to address this concern include:

• creation of interest in the information and technology available through such means as the provision of an electronic newsletter;

• the provision of Internet training sessions; and

• the increasingly simple and intuitive structure and navigational schemes of key Internet sites.

Conclusion

The Internet has certainly delivered enhanced access to justice to the public, both through its use for those in the court system to make information and services available to the public and by increasing the availability of current information to judges and court administrative staff. The trend will undoubtedly continue as more members of the judiciary become comfortable with the technology and the minority in the community who do not have access to the Internet continues to reduce in size. There are a number of concerns that must be examined by policy makers, including appropriate protection of privacy, and whether there should be differential access rights for different groups. The issue is not, however, whether the technology should be used, but how best to take advantage of the limitless opportunities it presents.

* Sheryl Jackson is a senior lecturer at the Faculty of Law, Queensland University of Technology. She has a background in professional practice and currently lectures in civil procedure and intellectual property law. She is also a member of the <e-law> Moot Court Working Party.. Dr Ros Macdonald is a senior lecturer at the Faculty of Law, Queensland University of Technology. She chairs the <e-law> Moot Court Working Party, which oversees the operation and implementation of technology in the electronic Moot Court—the most advanced Moot Court in Australia. She is undertaking research into electronic courts and has written in this area.

References

J Leeuwenberg and A Wallace, Technology for Justice 2002 Report, The Australian Institute of Judicial Administration Incorporated.

R MacDonald and B Fitzgerald (eds), Courts and the 21st Century: Public Access, Privacy and Security (Faculty of Law QUT and Supreme Court of Queensland, Brisbane, 6 November 2003).

D McKechnie, The Use of the Internet by Courts and the Judiciary: Findings from a Study Trip and Supplementary Research (2003) The Law Foundation New Zealand and Department for Courts Te Tari Kooti.

T Newman, ‘Weaving Your Own Web: A Guide to Intranet and Electronic Newsletters’ (Technology for Justice Conference, Australian Institute of Judicial Administration, Melbourne, 8-10 October 2000).

A Rahemtyla, R Cook and S Wrigley, ‘Developing a Judicial Virtual Library’ (Information Online Conference, Australian Library and Information Association, Sydney, 16-18 January 2001).

A Wallace, ‘Technology and the Judiciary--the Use of Technology in the Criminal Trial Process’ (4th National Outlook Symposium on Crime in Australia: New Crimes or New Responses, Australian Institute of Criminology, Canberra, 21-22 June 2001).


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